Auto Workers Local 128 (Hobart Corp.)

National Labor Relations Board - Board Decisions

May 29, 1987

283 N.L.R.B. 1175 (N.L.R.B. 1987)

AUTO WORKERS LOCAL 128 (HOBART CORP.)
Local No. 128, International Union of United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America (Hobart Corporation) and
David W. Ferguson. Case 8-CB-5197
29 May 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, STEPHENS, AND
CRACRAFT
Upon a charge filed ' on , 20 April 1984 by David
W. Ferguson, an individual, the General Counsel
of the National Labor Relations Board issued a
complaint on 4 June 1984. The complaint alleges
that about 13 December 1983, Local No. 128,
International Union of United Automobile, Aero-
space and Agricultural Implement Workers of
America, the Respondent, has unlawfully refused
to accept the resignation of David W. Ferguson,
the Charging Party; has continued to demand that
Hobart Corporation, Ferguson's employer, contin-
ue to deduct dues from Ferguson's pay; and has
continued to receive such dues. The complaint fur-
ther alleges that by the acts and conduct described
above, and by each of these acts, the Respondent
has restrained and coerced, and is restraining and
coercing, employees in the exercise of the rights
guaranteed them by Section 7 of the Act, and that
the Respondent has been engaging in unfair labor
practices within the meaning of Section 8(b)(1)(A)
of the Act.
On 2 September 1986 the Respondent, the
Charging Party, and the General Counsel filed a
motion to transfer the proceeding to the Board and
a stipulation of facts, with exhibits attached. The
parties agreed that the charge, the complaint and
notice of hearing, the answer, and the stipulation of
facts with attached exhibits constitute the entire
record in the case, and that no oral testimony is
necessary or desired by any of the parties. ,The par-
ties waived a hearing before an administrative law
judge, the making of findings of facts and conclu-
sions of law by an administrative law judge, and
the issuance of an administrative law judge's deci-
sion. the parties submitted,this case for findings of
facts, conclusions of law, and order directly by the
Board.
On 12 November 1986 the Board issued an order
granting the parties' motion, approving the stipula-
tion, and.transferring the proceeding to the Board.
Thereafter the General Counsel and' the Respond-
ent filed briefs.
The National Labor Relations Board has delegat-
ed its authority' in this proceeding to a three-
member panel.
1175
On the entire record and the briefs, the Board
makes the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Hobart Corporation,
an Ohio corporation with an office and place of
business in Troy, Ohio, has been engaged in the
manufacture of home appliances. Annually, Hobart
Corporation, in the course and conduct of its busi-
ness operations, sells and ships from its Troy, Ohio
facility products, goods, and materials valued in
excess of $50,000 directly to points outside the
State of Ohio. We find that the Company is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
We find that the Respondent Union is and has
been at all times material herein a labor organiza-
tion within the meaning of Section 2(5) of the Act.
11. ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
The Respondent and the Hobart Corporation
had a collective-bargaining agreement in effect on
13 December 1983, which was effective by its
terms from 5 February 1981-31 , December 1983.
This collective-bargaining agreement (the Hobart
Agreement) provides, inter alia, that:
ARTICLE II
Maintenance of Union Membership
1. All employees who on the date of the sign-
ing of this Agreement are members of the
Union in good standing in accordance with its
Constitution-, and By-Laws, and those employ-
ees who may thereafter become members shall,
during the life of this Agreement as a condi-
tion of employment, remain members of the
Union in good standing; provided, however,
that during the period' stated in the Memoran-
dum of Understanding attached hereto as Ap-
pendix E any employee may resign from the
Union should he so desire. Any such resigna-
tion must be in writing and be mailed during
the period stated in the' said Memorandum of
Understanding by registered mail to the Union,
addressed to Local No. 128, International
Union, United Automobile, Aerospace & Agri-
cultural Implement Workers of America,
Troy,Ohio, attention to the Finance Secretary
[emphasis added].'
Article III, section 10, of the constitution and
bylaws of the Hobart unit of the Respondent pro-
283 NLRB No. 171
1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vides that "No member shall terminate his member-
ship except at such time as set forth in the current
contract between the Hobart Corp . and this unit of
Local No . 128, and according to the procedure set
forth therein."
David W. Ferguson has been an employee of the
Hobart Corporation at least since 1 January 1980.
He currently holds the position of millwright. On
13 December 1983 the Respondent received from
Ferguson a letter of resignation from membership
in the Respondent . This letter was mailed by certi-
fied mail . The letter is addressed to the Respond-
ent, attention of the finance secretary ,- and states
that "I- David, W. Ferguson do hereby submit
notice of resignation" from the Respondent. Since
13 December 1983 the Respondent has refused to
accept Ferguson 's resignation from union member-
ship . Further, since 13 December 1983 the Re-
spondent has continued to demand that Hobart
Corporation continue to deduct dues from Fergu-
son's pay, and has continued to receive such dues:
Ferguson 's applicable authorization for dues
checkoff, dated 24 November 1981, provides for
the withholding from Ferguson 's pay of "such
sums as the Financial Officer of said Local No. 128
may certify as due and owing from me as member-
ship dues , including an initiation or reinstatement
fee and monthly dues in such sum as may be estab-
lished from time to time as union dues in accord-
ance with the Constitution of the International
Union, UAW." The authorization is irrevocable for
1 year from the date of delivery or until the termi-
nation of the Hobart Agreement , whichever occurs
sooner, unless the employee gives written notice to
the 'Hobart Corporation and the Union not more
than , 20 or less ' than 10 days before either the 1-
year period ' or the ' Hobart Agreement expires,
whichever occurs sooner. There is 'no indication in
the record that Ferguson has given such notice.
B. Contentions of the Parties
The General Counsel contends that the Respond-
ent violated Section 8(b)(1)(A) by refusing to
accept Ferguson 's resignation . She argues that in
Machinists Local 1414 (Neufeld , Porsche-Audi), 270
NLRB 1330 (1984), the,Board held that a union's
imposition of restriction on a member 's right to
resign , as well as any other - restrictions a union
may impose on resignations from membership, vio-
lated the Act . She argues that ` although Neufeld di-
rectly concerned restrictions on resignation during
a strike or lockout , under Neufeld's language, any
restrictions on resignation are invalid . The General
Counsel cites several cases dealing specifically with
restrictions on the times during which union mem-
bers may ' resign , and argues that the Board's lan-
guage in these cases militates against any restrici-
tions on the manner of withdrawal, so long as the
resignation is clear and unequivocal . See Electrical
Workers IUE Local 441 (Phelps Dodge), 281 NLRB
1006 (1986); Sheet Metal Workers Local 73 (Safe
Air), 274 NLRB 374 (1985); Newspaper Guild Local
3 (New York News), 271 NLRB 1251 (1984); and
Bricklayers Local 17 (California Tile), 271 NLRB
1571.
She further argues that Ferguson 's resignation
letter manifests a clear intention to resign and,
moreover , the Respondent admits to having re-
ceived Ferguson 's resignation . She contends that in
Telephone Traffic Union Local 212 (New York Tele-
phone), 278 NLRB 988 (1986), the Board found
that a union violated Section 8 (b)(1)(A) by refusing
to accept, a member's resignation that had been
mailed by regular rather than registered mail, as
the union required, when the union did not dispute
receipt of the resignation . Finally, the General
Counsel argues that even if the restrictions in the
Hobart Agreement are lawful, the Respondent
failed to fulfill its fiduciary obligations to Ferguson,
because the record contains no evidence that the
Respondent notified ' him that he was required to
remit his resignation by registered , rather than cer-
tified , mail. See Phelps Dodge , supra.
The Respondent argues that the Board should
give full effect to the intent of the parties regarding
the procedure for resigning from the Union as
manifested in -the collective-bargaining agreement,
in keeping with the Board's policy of giving full
effect to contract language that does not violate
the Act. The Respondent argues that the parties
agreed that union members must send their resigna-
tion to the Union by registered mail and that be-
cause Ferguson failed to do so, his resignation was
ineffective . Moreover, it argues , the procedure for
resignation upon -which the parties have agreed is
not illegal.'
C. Discussion
We find that the Respondent has violated the
Act by refusing to accept Ferguson 's resignation
and by persisting in demanding that his Employer
continue to deduct and remit dues after the resigna-
tion . In Neufeld Porsche Audi the Board held that
"a union may not lawfully restrict the rights of its
members to resign from membership ." 270 NLRB
at 1336 . In Phelps Dodge, supra, the Board applied
the rule enunciated in Neufeld to restrictions con-
tained in a collective-bargaining agreement. In
' The question of the lawfulness of the temporal restriction on resigna-
tions was not put in issue by either party and is thus not before us for
resolution in this case. See Machinists Local 1414 (Neufeld Porsche-Audi),
270 NLRB 1330 , 1333 (1984)
AUTO WORKERS LOCAL 128 (HOBART CORP) 1177
Phelps Dodge, the Board specifically declined to
make an exception to the Neufeld rule in^ such
cases, and we again decline to do so. Under the
facts of this case, however, it is unnecessary to pass
on the legality of the requirement that resignations
be sent by registered mail. Thus, even assuming ar-
guendo that the collective-bargaining agreement's
restrictions on the manner of resignation are lawful
under Neufeld, Ferguson's resignation was effective
notwithstanding his failure to comply with the pro-
cedural requirement. In New York Telephone, supra,
the Board gave effect to a resignation sent to the
union by regular mail in contravention of the
union's requirement that resignations be sent by
registered mail. In New York Telephone, as here, the
union did not dispute that it had received the resig-
nation letter. Therefore, in view of the Respond-
ent's admitted receipt of his letter, Ferguson's res-
ignation by certified mail from the Respondent was
valid, and the Respondent's refusal to accept his
resignation violates Section 8(b)(1)(A). Typographi-
cal Union (Register Publishing), 270 NLRB 1386
(1984); Operating Engineers Local 12 (Associated En-
gineers), 282 NLRB 1337 (1987).2
Further, we find that the Respondent has violat-
ed the Act by continuing to demand that dues be
withheld from Ferguson's paycheck and by con-
tinuing to accept those dues. In Eagle Signal, supra,
the Board reiterated its well-settled' rule concerning
the effect of resignations from union membership
on dues-checkoff authorizations:
It is established Board law that a dues-
checkoff authorization . . . is a contract be-
tween 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 authori-
2 We find inapposite KCW Furniture Co, 247 NLRB 541 (1980), enfd.
634 F 2d 436 (9th Cir. 1980), which the Respondent, cites for the pnnci-
pie that where the parties have agreed to unambiguous contractual lan-
guage that does not violate the Act the Board should respect the agree-
ment That case concerned the operation of an automatic renewal clause
in a collective-bargaining agreement and not the right of members to
resign union membership, or any other comparable issue involving the
exercise of Sec 7 rights The Respondent also cites Machinists Local 2045
(Eagle Signal), 268 NLRB 635 at 637 (1984), solely for the proposition
that where the parties have agreed on a procedure for resignation from a
union , that procedure will be given full effect. Without passing on the
accuracy of the Respondent's interpretation of that portion of Eagle
Signal, we point out that, as noted above, the Board subsequently in
Phelps Liodge, supra at fn 1, did not give full effect to a restriction on
resignation from union membership contained in a collective-bargaining
agreement Further, as noted above, in New York Telephone, supra, the
Board found that even assuming that the union's procedural requirements
concerning the manner in which resignations were to be submitted were
lawful, the failure of the member seeking resignation to follow such re-
quirements was not a valid defense to an 8(b)(1)(A) violation where the
union in fact received his resignation letter
zation itself makes payment of dues a quid pro
quo for union membership. This is so whether
or not the resignation is made during the
period for revocation set forth in the authori-
zation itself.
268 NLRB at 637 (footnotes omitted). According-
ly, the issue here is whether the terms of Fergu-
son's written assignment make payment of dues a
quid pro quo for union membership. If they do,
then Ferguson's valid resignation will operate to
revoke his dues-checkoff authorization, "whether
or not the resignation is made during the period for
revocation set forth in the authorization itself."
Eagle Signal, supra at 637.
As noted above, the assignment executed by Fer-
guson specifically assigns to the Respondent "such
sums . . . as are due and owing from me as mem-
bership dues, including an initiation or reinstate-
ment fee in such sum as may be established from
time to time as union dues." The terms of this as-
signment are virtually indistinguishable in pertinent
respects fom the assignment in Eagle Signal, which
authorized the deduction of "regular monthly Union
dues . . . in accordance with regular membership
dues," 268 NLRB at 638, and from that in Postal
Service, 279 NLRB 40 (1986), which directed the
deduction of "such regular and periodic member-
ship dues as the Union may certify as due and
owing from me." In both Eagle Signal and Postal
Service, the Board concluded that the authoriza-
tions clearly conveyed that the employees paid
dues as a quid pro quo for union membership and
not to cover other financial obligations, such as "fi-
nancial core" payments in lieu of membership. In
light of the similarity of Ferguson's authorization
to those in Eagle Signal and Postal Service, we find
that Ferguson's authorization also clearly provides
for the payment of dues as quid pro quo for union
membership. Therefore, when Ferguson effectively
resigned his union membership, the financial obli-
gation he undertook when he assigned membership
dues to the ' Respondent ceased, for purposes of
dues checkoff.3
Accordingly, we conclude that the Respondent,
by continuing to demand that Hobart Corporation
continue to deduct dues from Ferguson's pay, and
by continuing to receive his dues, further violated
Section 8(b)(l)(A) of the Act.
CONCLUSIONS OF LAW
1. Hobart Corporation is an employer engaged in
commerce within Section 2(6) and (7) of the Act.
3 Member Johansen notes that the same result is reached if we con-
strue the authorization to continue but that, as the amount of dues owed
is zero, zero is the amount to be deducted and remitted.
1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. The, Respondent, Local No. 128, International
Union of United Automobile, Aerospace and Agri-
cultural Implement Workers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. By refusing to accept the resignation from
membership of David W. Ferguson, the Respond-
ent-violated Section 8(b)(1)(A) of the Act.
4. By continuing to demand that Hobart Corpo-
ration continue to deduct dues from David W. Fer-
guson's pay, and by continuing to receive such
dues after Ferguson's effective resignation, the Re-
spondent violated Section' 8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) `of the Act.
REMEDY
Having found that the Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(b)(1)(A) of the Act, we
shall order that it cease and desist therefrom and
take certain affirmative action necessary to effectu-
ate the policies of the Act. In addition, we shall
order that the Respondent make David W. Fergu-
son whole for any monetary loss he may have suf-
fered by reason of'the Respondent's unlawful con-
duct by refunding to him all dues withheld from
his 'pay after he had effectively resigned from
membership in the Respondent, with interest to be
computed in, the manner as prescribed in New Hori-
zons for the Retarded.4
ORDER
The National Labor Relations Board orders that
the Respondent,' Local No. 128, International
Union of United Automobile, Aerospace and Agri-
cultural Implement Workers of America, Troy,
Ohio, its officers, agents," and "representatives, shall
1. Cease and desist from.
(a) Refusing to accept David W. Ferguson's res-
ignation from membership.
(b) Continuing to demand that Hobart Corpora-
tion continue to deduct dues from Ferguson's pay
and continuing to receive such dues.
(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 neces-
sary to effectuate the policies of the Act.
(a) Accept David W. Ferguson's resignation
from -membership, and inform both him and his
4 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" 'for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U S C § 6621
Employer, Hobart Corporation, in writing of that
acceptance.
(b) Refund to David W. Ferguson the dues un-
lawfully deducted from his paycheck following his
valid" resignation, as set forth in the remedy section
of the decision.
(c) Post at its business office and other places
where notices to its members are customarily
posted copies of the attached notice marked "Ap-
pendix."5 Copies of the notice, on forms provided
by the Regional Director for Region 8, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and; maintained for 60 consecutive
days in conspicuous places including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to accept David W. Fergu-
son's resignation from membership in our organiza-
tion.
WE WILL NOT continue to demand that Hobart
Corporation continue to deduct dues from David
W. Ferguson's pay.
WE WILL NOT continue to accept dues unlawful-
ly deducted from Ferguson's pay.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL NOT accept the resignation of David
W. Ferguson and inform him and the Hobart Cor-
poration in writing that we have done so.
AUTO WORKERS LOCAL 128 (HOBART CORP.)
WE WILL refund to David W. Ferguson dues un-
lawfully withheld from his pay, with interest.
LOCAL No. 128, INTERNATIONAL
UNION OF UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IM-
PLEMENT WORKERS OF AMERICA
1179
*U.S. G.P.O. 19894241-524:00003