American Smelting & Refining Co.

National Labor Relations Board - Board Decisions

Dec 20, 1972

200 N.L.R.B. 1004 (N.L.R.B. 1972)

1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Smelting & Refining Company (Mission
Unit) and Miles Gregory
United Steelworkers of America Local #6705
(American Smelting & Refining Company) and
Miles Gregory Cases 28-CA-2490 and 28-CB
-658
December 20, 1972
DECISION AND ORDER
On May 23, 1972, Administrative Law Judge'
Jerrold H Shapiro issued the attached Decision in
this proceeding Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent Union filed a brief in support of the Adminis-
trative Law Judge's Decision
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge, as
expanded herein, and to adopt his recommended
Order
Our dismissal of the complaint herein does not rest
solely on the finding that "Respondents acted
reasonably and in good faith in construing the
authorizations and the collective bargaining agree-
ment " but also on our conclusion that, as so
interpreted, the provisions of Respondents' agree-
ment respecting the checkoff of union dues did not
infringe upon employees' exercise of Section 7 rights
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety
MEMBER KENNEDY, dissenting
In my view, the Company's postrevocation deduc-
tion of dues at the urging of the Union violated
Section 8(a)(1) and (2) and 8(b)(1)(A) of the Act
Since 1964, Respondent Company has recognized,
pursuant to Board certification, four separate unions
as point bargaining representative for a unit of
approximately 585 employees at its mission installa-
tion located in Pima County, Arizona Two of the
four unions so recognized are International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local No 310, and United
Steelworkers of America, AFL-CIO, through its
Local #6705
The Company has entered into three successive
collective-bargaining agreements with the joint repre-
sentative since 1964 Although none of the agree-
ments has contained a formal union-security clause,2
all three have included the following provision
relating to checkoff of union initiation fees, dues,
and assessments
During the life of this Agreement, the Company
shall check off regular Union initiation fees,
monthly dues, and uniform assessments for all
employees who shall have individually signed and
delivered to the Company voluntary assignment
and authorization cards written in such form as
may be agreed upon between the parties to this
Agreement
The checkoff authorization form agreed upon by
Respondents has been in continuous use at the
mission unit since 1964 and reads in pertinent part as
follows
date-19-
This assignment and authorization shall be
effective and cannot be cancelled for a period of
one (1) year from the date appearing above or
until the termination date of the current collective
bargaining agreement between the Company and
the Union, whichever occurs sooner
I hereby voluntarily authorize you to continue
the above authorization and assignment in effect
after the expiration of the shorter of the periods
above specified, for further successive periods of
one (1) year from such date I agree that this
authorization and assignment shall become effec-
tive and cannot be cancelled by me during any of
such years, but that I may cancel and revoke by
giving to the appropriate management representa-
tive of the plant in which I am then employed, an
individual written notice signed by me and which
shall be postmarked or received by the Company
within fifteen days following the expiration of any
such year or within the fifteen days following the
termination date of any collective bargaining
agreement between the Company and the Union
covering my employment if such date shall occur
within one of such annual periods Such notice of
revocation shall become effective respecting the
dues for the month following the month in which
such written notice is given, a copy of any such
notice will be given by me to the Financial
Secretary of the Local Union
Local Union No
United Steelworkers of Signature
America
1 The title of Trial Examiner was changed to Administrative Law 2 Arizona is a right to work state
Judge effective August 19 1972
200 NLRB No 140
AMERICAN SMELTING & REFINING COMPANY
Respondents' 1968-71 collective-bargaining agree-
ment expired on June 30, 1971, before agreement
could be reached on the terms of a successor
contract In support of their bargaining demands for
a new agreement, unit employees struck from July 1
to August 22, 1971, the date on which a new contract
was executed 3 During the course of the strike,
certain members of the Steelworkers became dissatis-
fied with their union leadership As a result of this
dissatisfaction, a substantial number of them at-
tempted to transfer their allegiance to the Teamsters
In order to affiliate with the Teamsters, it became
necessary for the employees to first cancel their
existing Steelworkers checkoff authorization cards
Under the terms of the contract which had expired
on June 30, 1971, the mere execution of a Teamsters'
checkoff authorization card would have automatical-
ly canceled a preexisting Steelworkers authorization
During negotiations for the 1971-74 contract, howev-
er, Respondents limited the availability of this
automatic procedure to those employees who altered
their union affiliation in conjunction with a change
in job classification, any other employee who wished
to cancel an existing authorization card was required
by the new contract to strictly adhere to the
cancellation procedures set forth therein In the case
of those employees who sought to revoke their
Steelworkers authorization cards, this meant, among
other things, that they were required to file "timely"
written notices of revocation with both the Company
and the Union
Commencing in mid-October 1971, the 15 employ-
ees involved herein notified the Company that they
wished to cancel their Steelworkers authorization
cards Initially, the Company took the position that
there were two events under the checkoff authoriza-
tion language quoted above which would initiate a
15-day period during which notices of cancellation
would be timely-the annual anniversary of the date
on which the authorization card had been executed
by the employee, or the expiration of a collective-
bargaining agreement between the parties Since all
of the cancellation notices were filed after the
effective date of the 1971-74 agreement, it was the
Company's position that such notices would be
timely only if postmarked or received by the
Company within 15 days of the anniversary of the
date on which the employees had executed their
authorization cards
When a number of employees filed cancellation
notices which were premature under this interpreta-
tion, they were advised by the Company of the
rejection of their requests and instructed as to the
proper time for subsequent resubmission of their
1005
notices The evidence indicates that company offi-
cials thereafter informed numerous other employees
that their authorization cards would be revocable for
a period of 15 days following their respective
checkoff execution anniversary dates Similarly,
certain union officers led the employees to believe
that it would be permissible to cancel their authoriza-
tions during that period On the basis of this advice,
all 15 employees involved herein either initially filed
or refiled notices of cancellation which were timely
under the Company's interpretation of the Steel-
workers authorization form
Certain union officials did not agree with the
Company's interpretation the language in the author-
ization forms In their view, none of the revocations
would be timely until June 30, 1972, the anniversary
of the expiration date of the most recently expired
contract (1 e , June 30, 1971) This reading stemmed
from the Union's interpretation of their authoriza-
tion card, to be discussed further below, pursuant to
which only one event could initiate a 15-day
cancellation period Initially, if a collective-bargain-
ing agreement did not expire within 1 year of the
date on which an employee had executed a checkoff
authorization, that one event would be the employ-
ee's checkoff execution anniversary date However,
upon the expiration of a contract, the one event
which would initiate a cancellation period switched
from the checkoff execution anniversary date to the
expiration date of the contract Thereafter, the one
crucial event became the annual contract expiration
date until the termination of the next contract, at
which time the one event which would initiate a
cancellation period switched again to the expiration
date of the most recently terminated contract In
essence, once a contract had expired, an employee
would always have to look back to the expiration
date of the most recently expired contract in order to
determine the commencement of his annual 15-day
cancellation period
This disagreement over the proper interpretation of
the authorization cards prompted several confer-
ences and discussions between company and union
officials spanning a period of 1 month Agreement
was finally reached that the Union's interpretation
would be adopted as the official one, and the
Company's interpretation, which had been related to
the employees and which had guided them in filing
their cancellation notices, would be abandoned
When the employees were informed that the notices
which they had submitted pursuant to company
instructions were now premature by at least 6-1/2
3 The successor agreement was made retroactive to July 1 1971 and is
scheduled to expire on June 30 1974
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
months, employee Miles Gregory filed 8(a)(1) and (2)
and 8(b)(1)(A) charges 4
Unlike my colleagues, I conclude that Respondents
violated the Act as alleged This view is based, in
part, upon my conclusion that Respondents incor-
rectly interpreted their checkoff authorization form
and the disputed language must be read, instead, as
follows
The first of the two paragraphs in question quite
clearly applies only to the 12-month period immedi-
ately following execution of the authorization The
language in that paragraph is designed to guarantee
compliance with Section 302 of the Act and merely
limits the initial period of irrevocability to 1 year
from the date of checkoff execution or until the
expiration of the then current collective-bargaining
agreement, whichever period is shorter However,
once the shorter of these two periods has expired, the
first paragraph ceases to be of any effect whatsoever
and all future periods of irrevocability are to be
computed in accordance with the guidelines estab-
lished in the second paragraph
The opening sentence of the second paragraph
specifies that once the shorter of the two periods
enumerated in the first paragraph has expired, the
authorization shall thereafter continue in effect "[f]or
further successive periods of one (1) year from such
date [i e , from the expiration date of the shorter of
the two specified periods] " As stated by the General
Counsel, this portion of the second paragraph adopts
the expiration date established in the initial para-
graph as an "anniversary date" from which "further
successive periods of one (1) year"-during which
the authorization shall remain in effect-are to be
measured
The second paragraph then states that the authori-
zation shall be irrevocable during the term of these
successive yearly periods However, in order to
comply with the requirements of Section 302 of the
Act, the second paragraph creates two 15-day
cancellation periods during which the authorization
may be revoked The first such period recurs
annually upon the expiration of each successive
yearly period (i c, upon the "anniversary date"),
while the second occurs upon the termination of any
collective-bargaining agreement which expires within
one of such successive yearly periods
In my opinion, the interpretation agreed upon by
Respondents simply does not fit the language of the
authorizations As indicated earlier, in their view, an
employee's checkoff execution anniversary date
4 The Company continued until January 1972 to make deductions from
the employees paychecks and to remit the amounts so deducted to the
Union Since January all deductions have been placed in escrow pending
the outcome of these proceedings
Even if one were to acknowledge that the rules for cancellation
established in the checkoff authorization forms are ambiguous so that none
initially determines the commencement of his annual
escape period until the termination of a collective-
bargaining agreement Once a contract has expired,
the revocation date switches from the checkoff
execution anniversary date to the expiration date of
the contract Thereafter, the employee's yearly
escape period commences with the annual passing of
the contract expiration date until the termination of
the next collective-bargaining agreement, at which
time the revocation date switches once again to the
termination date of the most recently expired
contract In this manner, the employees receive a
new revocation date for their annual escape period
each and every time a contract expires
This interpretation quite clearly does not square
with the literal language of the authorization form
because it assumes that once a contract has expired,
the "further successive periods of one (1) year"
specified in the first sentence of the second para-
graph must always be measured from the termination
date of the most recently expired contract However,
as indicated above, such successive yearly periods
are to be measured not from the termination date of
the most recently expired contract, but rather, "from
such date," referring to 1 year from the date of
checkoff execution or the termination date of the
then current collective-bargaining agreement, which-
ever occurs sooner The "anniversary date" so
established is thereafter permanently retained by the
employee-it does not switch each and every time a
contract expires
Respondents' reading of the disputed language
ignores those situations (applicable to 12 of the 15
employees herein) in which no collective-bargaining
agreement terminated within 1 year of an individu-
al's execution of an authorization card As indicated
above, the "further successive periods of one (1)
year" in such cases are calculated with reference to
the date 1 year from the date of checkoff execution
since that date occurred "sooner" than the termina-
tion date of the then current collective-bargaining
agreement Therefore, under a proper reading of the
authorizations, 12 of the 15 employees filed timely
revocations which the Company and the Union were
obligated to honor, their failure to do so constitutes
violations of Section 8(a)(1) and (2) and 8(b)(1)(A)
respectively 5
As detailed above, during the course of the 53-day
strike a large percentage of the Steelworkers mem-
bership became dissatisfied with their union leaders
and concluded that their interests would be better
of the three interpretations advanced herein are clearly correct or incorrect
Respondents must still be found to have violated the Act The Board has
long adhered to the basic contract principle that [ t]he risk of ambiguity
must be held against the promulgator of the rule rather than against the
employees who are supposed to abide by it G C Murphy Company 171
NLRB 370
AMERICAN SMELTING & REFINING COMPANY 1007
served through representation by the Teamsters
When these employees attempted to shift their
allegiance to the Teamsters by executing Teamsters
dues checkoff authorizations, they were informed
that it was no longer possible under the terms of the
new contract, as it had been in the past, to revoke a
preexisting checkoff authorization in favor of one
union merely by executing a new authorization in
favor of another union Under the new contract, the
employees could revoke their existing Steelworkers
authorizations only during an available 15-day
cancellation period As a result, the availability and
precise timing of the cancellation periods became
very important to the employees
Both company and union officials, through numer-
ous conversations , responses to inquiries, and in-
structions, led the employees to believe that cancella-
tions filed within 15 days of their checkoff execution
anniversary date would be timely 6 However, as soon
as several employees attempted to revoke their
authorizations pursuant to these instructions, the
Company and Union abandoned the interpretation
related to the employees, and adopted an interpreta-
tion which rendered all of the revocations premature
by at least 6-1/2 months
At this juncture, the employees were in a dilemma
With their efforts to withdraw from the Steelworkers
foreclosed by a new agreement negotiated by the
Respondents which rendered past procedures obso-
lete, to whom were the employees to turn for
assistance9 The Union certainly was not anxious to
aid the employees in withdrawing their membership,
and the Company's interests lay more in the
direction of protecting and preserving its relationship
with the Umon than with assisting a handful of
employees to transfer their union allegiances Mani-
festly, the contractual grievance and arbitration
provisions were virtually useless to the employees in
view of the alignment of union and company
interests against them,7 and consequently, the ab-
sence of an effective spokesman for their cause
The employees in this case resolved their dilemma
by filing unfair labor practice charges with the
Board However, the Administrative Law Judge
dismissed the complaint based upon the employees'
charges not because their interpretation of the
checkoff authorization as advanced by the General
Counsel was necessarily wrong, but rather because
the interpretation agreed upon by the Company and
Union was "reasonable" or was arrived at in "good
faith " I disagree with my colleagues' affirming the
Administrative Law Judge' s dismissal which is
predicated entirely upon the failure of the record to
establish a lack of good faith on the part of
Respondents
In my view, the revocations of the 12 checkoff
authorizations were timely filed under the terms of
the collective-bargaining agreement This Board has
long held that an employer's deduction of dues from
an employee's pay after the employee has validly
revoked the checkoff authorization constitutes a
violation of Section 8(a)(1) and (2) of the Act
Similarly, a union's causation of such deductions is
violative of Section 8(b)(1)(A) of the Act See
Industrial Towel and Uniform Service, a Division of
Cavalier Industries, Inc, 195 NLRB No 187, and
cases cited therein, cf International Association of
Machinists & Aerospace Workers, Local Lodge No
933, AFL-CIO (Hughes Aircraft Company, Tucson
Division), 164 NLRB 76
6 It should be noted that this advice in addition to being consistent with
the Company s original interpretation of the checkoff language is also in
accord with the position taken by the Steelworkers in a recent arbitration
proceeding North American Rockwell Corp, 54 LA 12 In marked contrast
to the interpretation advanced herein , the Steelworkers in that case
acknowledged that identical checkoff authorization language did in fact
provide for two 15 day escape periods-one marked by the expiration of a
contract and a second marked by an employees checkoff execution
anniversary date
r It should be noted that this alignment of interests against the
employees precludes our deferral under Collyer Insulated Wire A Gulf and
Western Systems Co 192 NLRB No 150, to the grievance and arbitration
provisions in the contract Kansas Meat Packers A Division ofAristo Foods
Inc 198 NLRB No 2
TRIAL EXAMINER' S DECISION
STATEMENT OF THE CASE
This proceeding, under Section 10(b) of the National
Labor Relations Act, herein called the Act, was heard in
Tucson, Arizona, on March 28 through March 30, 1972,
pursuant to due notice The consolidated complaint, which
issued on February 9, 1972, is based upon charges and first
amended charges dated December 13, 1971, and February
7, 1972, and alleges that Respondent Employer violated
Section 8(a)(1) and (2) of the Act and Respondent Union
violated Section 8(b)(1)(A) of the Act Respondents are
charged by the General Counsel of the National Labor
Relations Board (Board) with violating the Act in that they
failed to honor certain revocations of checkoff authoriza-
tions and, thus, without authority the Respondent Employ-
er continued to check off the union dues of 15 employees
and continued to pay such dues to the Respondent Union,
at the request of the Union Additionally, the Respondents
are charged with misrepresenting to employees the time
they could cancel checkoff authorizations
At the trial, all parties were permitted to introduce
relevant evidence, to examine and cross-examine witnesses,
to argue orally on the record, and to submit briefs Briefs
submitted by the General Counsel, Respondent Employer,
and Respondent Union have been considered
Upon the entire record' and from my observation of the
witnesses , I make the following
i General Counsel s and Respondent Employer s motions to correct the
transcript are granted
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
Respondent Employer, a New Jersey corporation, is
engaged in the mining and milling of copper ore in Arizona
and in other States Respondent Employer, in the normal
course and conduct of its business operations , annually
sells and ships directly from its Arizona operations
products valued in excess of $50,000 to States other than
Arizona, and purchases and receives goods and materials
directly from locations outside Arizona valued in excess of
$50,000 Respondent Employer is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A The Facts
Since at least 1964, Respondent Employer , pursuant to a
Board certification , has recognized as thejoint bargaining
representative of a unit of approximately 585 employees at
its mission unit located in Pima County , Arizona, the
following Unions International Union of Operating
Engineers , Local No 428 , International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America , Local No 310 , International Brotherhood of
Electrical Workers , Local 570, and United Steelworkers of
America, AFL-CIO, herein collectively called The Unions
or Joint Representatives Each Union for purposes of
union membership has apparently recruited those unit
employees performing work normally or traditionally
associated with the Union 's jurisdiction The Unions and
the Respondent Employer entered into an initial collective-
bargaining agreement covering the mission unit on
February 11, 1965, effective from November 1, 1964,
through September 30, 1967 This was succeeded by a
second collective-bargaining agreement entered into on
April 6, 1968, effective from April 6, 1968, through June
30, 1971 The third and current collective -bargaining
agreement was executed on August 22, 1971, and is
effective from July 1, 1971, through June 30, 1974
The Respondent Union, United Steelworkers of Ameri-
ca, Local 6705 , came into existence shortly after the
Board's certification of the Steelworkers International
Union as a joint bargaining representative at the mission
unit Respondent Union was chartered by the Internation-
al Union presumably to service said unit and , in fact,
through its officials , has participated in the negotiations of
and the administration of the collective -bargaining agree-
ments, including the administration of the checkoff
provision On the Steelworkers Union checkoff authoriza-
2 The first collective bargaining agreement was silent about the right of
an employee to cancel a checkoff authorization by executing a new checkoff
for one of the other Joint Representatives The second collective bargaining
agreement on this point in art III provided (a)ny new check-off
assignment properly executed will automatically cancel any previous
check off assignment This privilege was limited in the current agreement
tion cards executed by employees , Respondent Union was
named as the Local Union in the space provided on the
card
The current and past collective -bargaining agreements
do not provide for union security, but include an
agreement by the Respondent Employer to check off
initiation fees, dues, and assessments
Each collective-bargaining agreement in pertinent part
provides
During the life of this Agreement, the Company shall
check off regular Union initiation fees, monthly dues,
and uniform assessments for all employees who shall
have individually signed and delivered to the Company
voluntary assignment and authorization cards written
in such form as may be agreed upon between the
parties to this Agreement 2
The checkoff authorization agreed to by the Respondent
Employer and Steelworkers International Union which has
been in use at the mission unit since 1964 is set out in
pertinent part below
This assignment and authorization shall be effective
and cannot be cancelled for a period of one ( 1) year
from the date appearing above or until the termination
date of the current collective bargaining agreement
between the Company and the Union , whichever
occurs sooner
I hereby voluntarily authorize you to continue the
above authorization and assignment in effect after the
expiration of the shorter of the periods above specified,
for further successive periods of one (1) year from such
date I agree that this authorization and assignment
shall become effective and c not be cancelled by me
during any of such years , but that I may cancel and
revoke by giving to the appropriate management
representative of the plant in which I am then
employed , an individual written notice signed by me
and which shall be postmarked or received by the
Company within fifteen days following the expiration
of any such year or within the fifteen days following the
termination date of any collective bargaining agree-
ment between the Company and the Union covering
my employment if such date shall occur within one of
such annual periods Such notice of revocation shall
become effective respecting the dues for the month
following the month in which such written notice is
given, a copy of any such notice will be given by me to
the Financial Secretary of the Local Union
Local Union No
United Steelworkers of
America
Signature
The 15 employees whose checkoff authorization revoca-
tions the Respondents are charged with refusing to honor
executed authorizations and the Respondent Employer
when the parties in art IV provided in pertinent part An employee whose
job classification or department is changed may transfer his membership to
a labor organization other than the one to which he has authorized dues
deduction by executing a new dues deduction authorization card Said new
dues deduction authorization card properly executed will cancel any
previous check off assignment
AMERICAN SMELTING & REFINING COMPANY 1009
received individual written notices revoking these authori-
zations on the dates set out below
Ck-Off
Authorf-
zation
Executed
Resp. Emp
Rec'd.
Notice
Of Rev.
3/
Walter Bedard 11/1/67 11/24/71
Salvatore Boager 12/1/68 12/8/71
Dallas Burk 10/27/64 10/29/71
Jim Evans 10/31/64 11/15/71
Miles Gregory 10/26/64 10/27/71
George Jowers 11/6/69 11/17/71
Dick McClure 10/26/64 10/27/71
Otis Munson 11/2/64 11/5/71
Armando Rodriguez 10/29/68 11/12/71
Navor Rodriguez 11/10/66 11/18/71
Candido Sanabria 11/1/70 11/5/71
Lyle Schroeder 10/1/69 10/14/71
Hoyt Story 10/26/64 10/27/71
Charles Stumbaugh 10/28/64 10/29/71
Ronnie Wells 11/13/71 11/15/71
Only one of the employees, George Jowers, complied with
the portion of the checkoff authorization which states that,
"a copy of any such notice [referring to notice of
revocation] will be given by me to the Financial Secretary
of the Local Union " Jowers, when he gave notice to the
Respondent Employer, mailed a copy to the Respondent
Union's financial secretary, Warren Waggoner Employees
Bedard, Burk, McClure, Munson A Rodriguez, N
Rodriguez, Stumbaugh, Gregory, Story, and Wells, when
they gave notice to Respondent Employer, also gave a
copy of their revocation personally or through the mail to
the president of Respondent Union, Gilbert Weber
Employee Schroeder gave a copy of his letter of revocation
to the Respondent Union's recording secretary, Thomas
Grant, who informed Weber about the letter Employee
Sanabria handed a copy of his letter of revocation to
Weber who declined to accept the letter Employee Boager
mailed a copy of his letter to the Respondent Union at a
"freeway address" which he took from the phone directory
The letter was returned to him because of an insufficient
address Employee Evans, as was the case of employee
Boager, mailed a letter to Respondent Union at the
"freeway address' which was not received by the Union 4
Employees Boager and Evans testified that when they
signed their checkoff authorization cards in 1968 and 1964,
respectively, that the then president of the Respondent
Union, McClintock, told them they could revoke the
authorizations within 15 days after 1 year from the date
they had signed Employee Gregory testified that each
president of the Respondent Union has told employees
that their anniversary date for purposes of revoking their
checkoff authorizations was the date they signed the
authorization
During the fall of 1971, at a time prior to the anniversary
of the date they had signed authorization cards, several of
the employees named above gave notice to the Company
of their intent to cancel such authorizations At that time,
officials of Respondent Employer told the employees that
the revocations were not timely because such notice had to
be given within 15 days after the month and day of their
initial execution of the checkoff authorization (checkoff
anniversary date) This instruction was based upon
Respondent Employer's interpretation of the language in
the checkoff authorization which in its opinion allowed
employees to revoke their authorizations within 15 days
after checkoff anniversary date or within 15 days following
the termination date of a contract Following the Respon-
dent Employer's advice, the employees who were informed
their revocations were premature submitted them, as
described in detail above, within 15 days of their checkoff
anniversary dates
One of the employees, Miles Gregory, the Charging
Party in these proceedings, at the time he was told in
September 1971 by the Company his revocation was
premature also had a conversation with the president of
Respondent Union, Gilbert Weber Weber credibly testi-
fied he dust told Gregory that his letter of revocation was
untimely Gregory, on the other hand, testified that Weber
also told him his revocation would be timely on his
checkoff anniversary date, October 26, 1971 In specifically
denying he said this, Weber explained that he could not
have given Gregory his anniversary date because this
information was in the possession of the Union's secretary-
treasurer This is corroborated by Gregory who initially
testified that "all" Weber told him was "he would check
with the secretary-treasurer and that my letter was too
early " It was at the suggestion of counsel for the General
Counsel that Gregory first testified that Weber told him his
anniversary date would be October 26, 1971, and his
testimony to that effect impressed me as being improvised
Moreover, he was the only employee witness of the
approximately 15 called by General Counsel who claims
that Weber told him he could revoke his checkoff
authorization on its anniversary date
Weber, an employee employed in the mission unit, has
been president of the Union since May 1971 Assisting
Weber in the administration of the bargaining agreement is
Steelworkers International Union Staff Representative Van
Englestead, who has occupied this position at the mission
unit ever since the Respondent Employer's initial recogni-
tion of the International Union as anoint representative in
1964 Weber, early in September 1971, learned that a
number of employees wanted to revoke their Steelworkers
Union dues-checkoff authorizations and that officials of
Respondent Employer, as described above, were informing
them that they could revoke their checkoff authorization
on the checkoff anniversary date Since his interpretation
of the language contained in the checkoff authorization did
not square with what the Company was telling employees,
3 Bedard s written notice of revocation to the Respondent Employer which was returned because of an insufficient address Evans letter was
which was sent by regular mail was postmarked November 16, 1971 sent to the freeway address Under the circumstances I find that Evans
4 Respondent Union through its attorney at the hearing represented that letter was sent as he testified but not received by the Respondent Union
'f did not receive a letter of revocation from Evans Like Boager s letter
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weber met with Van Englestead on or about September
13, 1971, to discuss this matter Van Englestead informed
him that an employee could revoke his checkoff authoriza-
tion on the checkoff anniversary date only until the
expiration date of the contract in effect when the checkoff
was signed and that when a new contract was entered into
the anniversary date for revoking such a checkoff was the
date of the expiration of the preceding contract This
interpretation was apparently based upon the following
language contained in the checkoff authorization "This
assignment and authorization shall be effective and cannot
be cancelled for a period one (1) year from the date
appearing above [referring to the date the checkoff was
signed] or until the termination date of the current
collective bargaining agreement between the Company and
the Union [referring to June 30, 1971, the expiration date
of the most recently expired contract], whichever occurs
sooner I hereby voluntarily authorize you to continue the
above authorization and assignment in effect after the
expiration of the shorter of the periods above specified
[which with respect to the employees involved in this case
would be June 30], for further successive periods of one (1)
year from such date " Van Englestead testified without
contradiction that other local unions of the Steelworkers
International Union serviced by him, since at least 1956,
have been using a dues-checkoff authorization card
identical to the one involved in this case, and that it has
always been interpreted by the local unions in this fashion
Following his conversation with Van Englestead, Weber
late in September or early in October, met with P A Lewis
and Thomas Scartaccini, Respondent Employer's superin-
tendent and assistant superintendent at the mission unit
He informed them he had heard the Company was telling
employees they could revoke their checkoff authorizations
on the checkoff anniversary date, and advised them that in
the Respondent Union's opinion this was an incorrect
reading of the language in the checkoff authorization and
explained the Union's interpretation, briefly stated, that
the checkoff anniversary date controlled until a contract
expired at which point the employees' anniversary dates
became the contract expiration date Weber pointed out
the portions of the checkoff relied upon by the Union to
support this reading Lewis did not agree with this
interpretation, stating that the card was not easy to
understand and that he had to think about the matter and
secure some advice Thereafter, to make sure he under-
stood the Respondent Union's interpretation Lewis, before
he consulted with his superiors, asked Van Englestead for a
further clarification Van Englestead explained the Res-
pondent Union's reading of the checkoff authorization,
stating he had been using the interpretation for a number
of years At this point in time, Lewis phoned his superior,
James Moore, the labor director of the Respondent
Employer's southwest mining property, told him about the
problem, and upon request mailed Moore a copy of the
checkoff authorization card Moore read it and came to the
conclusion that Respondent Union's interpretation was
correct Moore then informed his superior, the director of
industrial relations, about the problem and upon consider-
ation he agreed that the Respondent Union 's interpretation
was correct and instructed Moore that as of that date,
(mid-October) the Steelworkers Union checkoff authoriza-
tion cards signed by mission unit employees would be so
interpreted Lewis advised his department heads to so
advise the mission unit employees, and Moore advised Van
Englestead that the Company concurred with the Respon-
dent Union's position In addition , in determining whether
employees who signed checkoff authorizations for Joint
Representative Teamsters Union Local 310 have submitted
timely notices of revocation, Respondent Employer has
advised this Union and employees that it will give the
Teamster Union 's authorization card the same interpreta-
tion as the Steelworkers union card 5
Scartaccini and Lewis , after the Employer's reinterpreta-
tion of the Steelworkers card , during the months of
October and November 1971, spoke to several of the
employees who had previously submitted requests to
revoke their authorizations They informed the employees
of the Company's new interpretation of the language in the
checkoff authorization , explaining that in these circum-
stances their requests were untimely and that the next date
they could revoke was on the anniversary date of the
expiration date of the collective -bargaming agreement,
namely, July 1, 1972 During this same period, Weber and
Van Englestead also told several employees that their
requests to revoke their checkoff authorizations were not
timely Gregory testified that Weber told him he could not
get out of the Respondent Union until July 1, 1972, stating,
to Gregory, "It's just been changed to that "6 Jowers
testified that both Weber and Van Englestead told him that
Van Englestead had talked to the union lawyer and Van
Englestead had told Weber that the union card was being
interpreted wrong, they explained to Jowers the interpreta-
tion of the Respondent Union , and told Jowers he could
revoke his authorization on the anniversary date of the
contract And, Story testified Weber told him that he could
not get out of the Respondent Union until July 1972
The result of the Respondent Employer 's decision to
abide by the language of the dues checkoff authorization
as construed by Respondent Union was its refusal to honor
the written notices of cancellation submitted by the 15
employees named in the complaint , and to continue to
check off the dues of these employees except, as described
below, in the case of Sanabna These moneys were
remitted for all 15 employees to the Steelworkers Interna-
tional Union through January 1972 Since January 1972,
except for employees Wells, Sanabna, and Navor Rodri-
guez, the company has impounded and is holding the
moneys pending a decision and order in these proceedings
by the Board However, due to an accounting oversight the
dues of Wells and N Rodriguez are still being remitted to
the Steelworkers International Union In the case of
Sanabna the Respondent Employer canceled his Steel-
workers International Union checkoff on or about Febru-
ary 9, 1972 At this time he had executed a checkoff
authorization for Joint Representative Teamsters Local
310, after he received a change of job classification Article
IV of the parties' current collective-bargaining agreement,
5 The language is identical on both the Teamster and Steelworker cards
6 Weber testified he did not tell Gregory there had been changes but
just explained the interpretation given the card
AMERICAN SMELTING & REFINING COMPANY 1011
as described above, allows an employee whose job
classification has been changed to transfer his membership
from one to another of the Unions, and to execute a new
checkoff authorization card which cancels any previous
checkoff card In connection with Sanabria's execution of
a checkoff authorization for the Teamsters Union, Weber
credibly testified that in November 1971, when Sanabna
approached him with a letter revoking his Steelworkers
International Union checkoff, that Weber refused to
accept the letter, explaining to Sanabria that it was not
timely but advised Sanabria to talk with the chief steward
for the Teamsters Union who would take care of his
problems 7 Weber referred him to the Teamsters Union
steward for the reason that he believed Sanabria had
changed his job classification which in Weber's opinion,
under the contract, entitled him to transfer into the
Teamsters Union and to automatically cancel his Steel-
workers Union checkoff authorization Sanabna substan-
tially corroborates Weber Sanabria testified that, in
November 1971, Weber referred him to the Teamsters
Union steward during the course of a discussion about a
checkoff authorization card and that it was after this
conversation with Weber that he signed his authorization
for the Teamsters Union
B Conclusionary Findings and Discussion
The General Counsel's basic contentions are that the
Respondents violated the Act by (1) Respondent Employ-
er's refusal at the request of Respondent Union to honor
the timely checkoff revocations of employees and thus,
without authority, continuing to check off union dues, and
(2) misrepresenting to employees their rights under the
checkoff authorization to revoke the authorization Res-
pondents basically contend (1) The checkoff revocations
were not timely under a correct interpretation of the terms
of the authorizations, (2) The issue posed by this case is a
dispute involving contract interpretation rather than one
involving an interpretation or application of the Act, (3) In
any event, since this is a matter of contract interpretation,
the Board should defer to the parties' contractual griev-
ance-arbitration procedure 8 Additionally, Respondent
Employer urges that as a matter of law, an employer
cannot unlawfully assist only a part of a certified joint
bargaining representative and that, under these circum-
stances, the complaint does not state a cause of action by
its failure to name the other three unions who together with
Respondent Union represent the mission unit 9 Respon-
dent Union also urges that under any construction of the
checkoff authorization the revocations of the employees,
except for Jowers, were not effective because they did not
comply with the portion of the check-off which requires
that they give a copy of their revocation to the financial
7 Weber at this time knew that Sanabria wanted to change his affiliation
from Respondent Union to the Teamsters Union In August 1971
Sanabria without success attempted to cancel his Steelworkers Interna
tional Union checkoff authorization by signing a checkoff authorization
for the Teamsters Union Respondent Union knew of this by at least 1971
S None of the employees have filed a grievance over the Respondents
refusal to honor their revocations At the hearing each Respondent
expressed a willingness to submit the dispute to arbitration under the
contractual procedures notwithstanding the expiration of any time limits
the contract may contain on the filing and processing of any such
grievances by the employees
9 This defense is without ment for the reasons that none of the other
secretary of the Respondent Union
It is now well settled that the deduction of dues from an
employee's pay after the employee has effectively revoked
the checkoff authorization constitutes a violation of the
Act, as does a union's causation of such conduct See
Industrial Towel and Uniform Service, A Division of Cavalier
Industries, Inc, et al, 195 NLRB No 187 Likewise, it is
also well settled "that it will not effectuate the policies of
the Act for the Board to impose upon the parties its
interpretation of the meaning of ambiguous contract
checkoff provisions as implemented by employees' authon-
zation cards where, a respondent acted reasonably
and in good faith " Miller Brewing Company, 193 NLRB
No 88, citing Morton Salt Company, 119 NLRB 1402 In
the instant proceeding the principal issue posed by the
dispute is whether the employees' checkoff revocations
were effective In other words, whether they were effective
under the terms of the authorization Without deciding
which interpretation of the portion of the authorization
which relates to revocation is the most valid, the Respon-
dents' or the General Counsel's, I am of the opinion that
the Respondents' interpretation is not unreasonable and is
a plausible one 10 Further, I believe the Respondents' good
faith and reasonableness is demonstrated by the following
(1) The interpretation given the checkoff authorization by
Respondents is the same as the interpretation given to the
identical authorization by other local unions affiliated with
the United Steelworkers of America, (2) The Respondent
Employer has given the same interpretation to the identical
checkoff authorization used by Joint Representative
Teamsters Local 310, (3) Respondent Employer, except for
an inadvertent oversight in the case of two of the
employees, has stopped paying money over to the
Respondent Union, pursuant to the disputed checkoff
authorizations, but rather has placed the checked off sums
in escrow to await the Board's decision, and (4) Respon-
dents have informed the Charging Party of their willing-
ness to submit this dispute to arbitration under the
contractual grievance-arbitration procedure, notwithstand-
ing the expiration of any time limits the contract may
contain for processing such grievances
In reaching the conclusion that the record fails to
establish a lack of good faith on the part of the
Respondents, I have considered the statement made on
November 9, 1971, by the Respondent Union's chief
steward, Joseph Veter, to employee Wells that Wells could
revoke his authorization on its anniversary date and the
fact that employee Ellis' revocation submitted on his
checkoff anniversary September 26, 1971, was honored at
that time by the Respondent Employer Veter's sole
function was the processing of employees' grievances
three unions that jointly represent the mission unit employees were parties
to the authorizations involved in this case none of them received any of the
dues checked off by the Respondent Employer pursuant to these
authorizations and there is no evidence nor does the General Counsel or
Respondents contend that any of the other Unions requested or caused the
Respondent Employer to refuse to honor the revocations submitted by the
employees named in the consolidated complaint
io I am also of the opinion that the Respondent Union s contention that
a notice of revocation is not effective if the employee does not give a copy to
the financial secretary rather than to some other Union official is a plausible
interpretation of the meaning of the language in the authorization
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the contract There is no claim nor evidence he was
connected in any way with the administration of the
checkoff portions of the contract which as revealed at the
hearing was a task handled by Weber, Van Englestead and
the financial secretary Under the circumstances, the
evidence is insufficient to establish Veter's opinion ex-
pressed to Wells as anything more than his personal
opinion not attributable to the Respondent Union
Regarding Ellis' revocation which took place shortly before
the Respondent Employer accepted the Union's interpreta-
tion of the authorization, there is no evidence that the
Respondent Union by conduct in effect can be said to have
agreed with the Company's decision to cancel Ellis'
authorization In any event, Ellis' revocation is an isolated
case, the only one of its kind, which by itself is not
sufficient to demonstrate that the Respondent Union, prior
to September 1971, was at all times allowing employees to
revoke on their checkoff anniversary date, and that it
changed this interpretation of the authorization in October
1971, as a means to prevent the employees named in the
complaint from canceling their authorizations I have also
considered the fact that when employees signed their
checkoff authorizations they were told that they could
cancel the authorization on the anniversary date of the
signing of the authorization In my opinion this is an
ambiguous statement which is not inconsistent with the
Respondent Union's interpretation under which the
employees can when they first sign such an authorization,
revoke it on the checkoff anniversary date until the
expiration of the contract Equally ambiguous is the
testimony of Gregory that Weber when he told him he
could not get out of the Respondent Union until July 1,
1972, explained, "It's just been changed to that " One
inference which might be drawn from this is that the
Respondent Union just changed its interpretation of the
authorization However, another interpretation and the
one which under the circumstances is the more plausible is
that the Employer had agreed with the Union's interpreta-
tion of the authorization, and because of this the Employer
had just changed its interpretation previously announced
to the employees In short, the evidence does not establish
that the Respondent Union's interpretation agreed to by
the Company was of recent vintage and specifically
designed to circumvent employees from canceling their
authorization cards
Nor is there evidence of enmity on the part of
Respondents to employees' exercise of their protected right
under Section 7 of the Act to refrain from having their
dues checked off, or to have their dues checked off for a
union other than the Respondent Union There is not a
scintilla of evidence which demonstrates that Respondent
Employer would like employees to authorize the Respon-
dent Union to check off their dues rather than have their
dues checked off by another union or by no union
Likewise , there is no evidence that Respondent Union has
in the past interfered with the right of employees to cancel
checkoff authorizations To the contrary, when employee
Muir on July 1, 1971, within 15 days of the expiration date
of the contract , notified the Respondents he was canceling
his Steelworkers Union authorization , the Respondent
Union honored this revocation In addition , Respondent
Union even assisted an employee in cancelling his
Steelworkers Union authorization Thus, in November
1971, Weber, the president of Respondent Union, directed
employee Sanabria to speak with the chief steward of
Teamsters Local 310 because Weber was of the opinion
that due to his change in job classification , Sanabna, under
the terms of the collective bargaining agreement could, as
he had previously expressed an intent to do, cancel his
authorization signed for Respondent Union by signing an
authorization for the Teamsters Union
To sum up, for the reasons set out above , I find that
Respondents acted reasonably and in good faith in
construing the authorizations and the collective -bargaining
agreement , and conclude that under these circumstances it
would not effectuate the policies of the Act for the Board
to impose upon the parties its interpretation of the meaning
of an ambiguous contract checkoff provision as imple-
mented by the employees ' authorization cards Miller
Brewing Company, 193 NLRB No 88, Morton Salt Co, 119
NLRB 1402 , International Chemical Workers Union, Local
143, AFL-CIO, 188 NLRB No 100 A fortiori, the
explanation of the parties ' interpretation of the authoriza-
tion by officials of Respondents to the employees cannot,
as alleged in the consolidated complaint , be described as a
misrepresentation violative of the Act 11
CONCLUSIONS OF LAW
1 American Smelting & Refining Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
2 United Steelworkers of America Local # 6705 is a
labor organization within the meaning of Section 2(5) of
the Act
3 Respondents have not engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (2) and
Section 8(b)(1)(A) of the Act
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 12
ORDER
The consolidated complaint is dismissed in its entirety
11 I note that none of the employees who were told in August and Rules and Regulations of the National Labor Relations Board the findings
September 1971 by Respondent Employer that they could revoke their conclusions and recommended order herein shall as provided in Sec
authorizations later that year on their checkoff anniversary date suffered 102 48 of the Rules and Regulations be adopted by the Board and become
any detriment as a result of their reliance upon this misinformation its findings conclusions and Order and all objections thereto shall be
12 In the event no exceptions are filed as provided by Sec 102 46 of the deemed waived for all purposes