Boston Gas Co.

National Labor Relations Board - Board Decisions

Mar 6, 1961

130 N.L.R.B. 1230 (N.L.R.B. 1961)

1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. International Union, Allied Industrial Workers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of the em-
ployees listed in Appendix A, thereby discouraging membership in and activity on
behalf of the above-named labor organization , the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) of
the Act.
3. All production and maintenance employees at the Respondent 's plant, ex-
cluding all office clerical employees , guards, professional employees, and super-
visors as defined in the Act , constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 ( b) of the Act.
4. On December 12, 1959, and at all times since that date, the above-named
labor organization has been and now is the exclusive bargaining representative of
all employees in the above-described unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment, and other terms and'
conditions of employment by virtue of Section 9(a) of the Act.
5. By refusing, on December 15, 1959, and at all times thereafter, to bargain.
collectively with the aforesaid labor organization , the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
6. By interfering with , restraining , and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in,
unfair labor practices within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Boston Gas Company and Utility Workers Union of America,,
AFL-CIO, Petitioner. Case No. 1-RC-5691. March 6, 1961
SUPPLEMENTAL' DECISION MODIFYING DECISION AND'
DIRECTION OF ELECTION
On October 12, 1960, the Board issued a Decision and Direction of
Election in the instant proceeding,' finding therein that a subsisting-
contract was not a bar, and citing as authority Keystone Coat, Apron
c9 Towel Supply Company, et al., 121 NLRB 880, and Felter v. South-
ern Pacific Co., 359 U.S. 326.
On October 25,1960, the Industrial Union Department of the AFL--
CIO, on behalf of the Utility Workers Union of America, AFL-CIO,
the Petitioner herein, and 62 other national and international affiliated
unions, filed a motion for reconsideration and reargument urging the-
Board to reverse its finding that the contract's checkoff provision is:
illegal under the above-cited cases . By letter dated November 2,1960,
the Employer advised that it had no objetcion to the motion for re-
consideration. Thereafter, other labor organizations and representa-
tives of management, by letter and telegraphic requests, urged the-
Board to reconsider its decision . On November 4, 1960, in the absences
1129 NLRB 369.
130 NLRB No. 126.
BOSTON GAS COMPANY 1231
of any objection and in accord with the position of the moving parties,
an election was held among the Employer's employees. This election
was won by the Intervenors, Local Union No. 12003 and Local Union
No. 12118, District 50, United Mine Workers of America. On Novem-
ber 8, 1960, the Board granted the motion for reconsideration, and
authorized the filing of amicus briefs by interested employers and
labor organizations.
. Upon reconsideration, the Board modifies the Decision of October
12, 1960, insofar as that Decision holds that the contract between the
Employer and the Intervenors herein is not a bar to an election.
Chairman Leedom and Members Rodgers, who did not participate.
in the original Decision herein, hold that a contract clause requiring
than an employee give written notice of revocation to both an em-
ployer and a union does not constitute such an impediment to an em-
ployee's freedom of revocation as to defeat a ,contract as a bar. They
find that such `a clause is not unduly burdensome upon employees, and
that employees are not thereby "effectively" precluded from revoking
their dues assignments.2
However, as an election has been held in this proceeding in which
the Petitioner and the Intervenors participated, and as the election
was won by the Intervenors, the Union which was maintaining that
its contract was a bar-a position now upheld by the Board-we will
not vacate the Board's Direction of Election or the certification issued
the Intervenors.
MEMBER JENKINS, concurring :
Having reconsidered the matter, I cannot find Felter v. Southern
Pacific Co., 359 U.S. 326, relevant. The Railway Labor Act authorizes
"checkoff" agreements and affirmatively states that "assignments .. .
shall be revocable in writing after the expiration of one year." A
railroad union and a railroad entered into, and attempted to enforce
against an employee of the railroad, an agreement that only a writing
executed on a form furnished by that union and to be forwarded by
it to the railroad would terminate his assignment. Both the union
and the railroad knew that Felter had attempted to terminate the
assignment by forwarding the identical forms supplied by the union
to which he had switched his allegiance. They, nevertheless, con-
tinued to check off his dues. The suit against both the union and the
railroad was for a declaration that he had complied with statutory
standards for effective revocation and for an injunction against fur-
ther dues deductions in favor of the union from whose membership
he had withdrawn. The sole question was whether he had validly
revoked the checkoff. The court held that such a requirement for
a See Wm. Wolf Bakery, Inc., 122 NLRB 630, and Department of Justice Opinion on
Checkoff, 22 LRRM 47, referred to in Wm. Wolf Bakery, Inc.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
revocation could not validly be enforced against an individual em-
ployee, because it would restrict his statutory right to revoke an as-
signment after 1 year. The case obviously has nothing to do with the
legality or illegality of a requirement for notice of intent to revoke.
It has nothing to do with a determination of the legality of the pro-
visions relating to checkoff, or to a determination that a contract
should or should not be held to bar a representation proceeding.
The significant difference between a requirement for notice to the
union as well as to the employer and the type of agreement involved
in the Felter case is carefully stated by Mr. Justice Brennan (at 334-
336) :
Of course, the parties may act to minimize the procedural prob-
lems caused by Congress' choice [for individual authorizations].
Carriers and labor organizations may set up procedures through
the collective agreement for processing, between themselves, indi-
vidual assignments and revocations received, and carriers may
make reasonable designations, in or out of collective bargaining
contracts, of agents to whom revocations may be sent. . . . But
Congress . . . did not make any provision for preliminary corre-
spondence or dealings between the employee and the organization
when the employee wanted to stop the checkoff, whether incident
to terminating his affiliation or not. The complete freedom of
individual choice in this area, undampened by the necessity of
such preliminary dealings with the labor organization to make
it effective, . . . [Emphasis supplied.]
In a requirement for joint notice of intent to revoke, there is no re-
quirement for any "preliminary dealings with the labor organization
to make it effective." Nor does the labor organization have unilateral
control over any express condition precedent to effecting the revoca-
tion. As the contract in this case did not condition revocation of a
checkoff upon prior consent of the union to supply forms requi-
site thereto, I am satisfied, after reconsideration of the matter, that
the facts of the instant case are not governed by the Felter decision.
Accordingly, I join in the result reached by my colleagues of the
majority.
MEMBER FANNING, concurring :
I concur in the majority's modification of the Board's initial decision
herein, so as to find that provisions of checkoff clauses requiring an
employee to give written notice to the union,. as well as to the em-
ployer, before his revocation of his dues deduction authorization will
become effective, will not alone be sufficient to remove the contract as
a bar to a representation election. However, I do not concur in the
majority's reasoning.
BOSTON. GAS COMPANY 1233
The Board's original decision held that, because such. dual notifica-
tion- provisions required an Employer to treat as a nullity. a dues revo-
cation notice sent to the Employer alone, it constituted an infringe-
ment of the employees statutory right to revoke his dues deduction
authorization, and under the Board's Keystone decision,' removed the
contract as a bar. The majority presents no persuasive arguments
for rejection of such reasoning. I see no essential difference between
a contract which requires the checkoff of dues even though the -em-
ployee has revoked the Employer's authority to continue such practice,
and a contract which requires the checkoff of dues without also re-
quiring voluntary authorization from the employee. Such differences
as may exist are differences in degree and not in kind, and in neither
case is the execution of the contract violative of Section 302, rather it
is the payment of the dues in, question to the union which is, 'or may
be, illegal. If the Keystone rule, as it relates to checkoff clauses, is
adhered to in the latter situation, `then I think it can with justice be
applied in the former situation.
After careful consideration, I have concluded that the contract-
bar rule set forth in the Keystone case, insofar as it relates to checkoff
clauses, should be reversed. I find merit in the argument that check-
off clauses, whether they contain reference to the proper authorization
and revocation procedures or not, do not significantly affect an em-
ployee's relationship to' the union. With or without such provisions
the employee's obligation to pay dues remains the same, and however
the checkoff provisions are worded, there'must exist an unrevoked
voluntary authorization of the checkoff before it lawfully can be made.
Congress, as the Board "has recognized, has delegated to the Justice
Department and the Court the responsibility for enforcing the pro-
visions of Section 302.
As the Board stated in Crown Products Company, 99 NLRB 602,
In our, recent Salant s case, the Board construed Section 302 as
not creating a new unfair labor practice. In reaching our con-
clusion, we noted that Section 302 is a criminal statute and appears
in Title III of the Act, and that Congress charged the attorney-
general and the courts, but not this Board, with its enforcement.
Our basic concern is with the preventive provisions of Title I of
the Act. As the administration of Section 302 was not delegated
to the Board, we believe that Congress did not intend that we
should examine into the checkoff provisions of the collective bar-
gaining contracts in order to ascertain their legality under another
section.. The resolution of questions concerning checkoff is ap-
" Salant & Salant, Inc., 88 NLRB 816.
8 Keystone Coat, Apron, & Towel Supply Company , 121 NLRB 880, 885,'886.
597254-61-vol. 130-79
1234 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD
propriately left to the agencies charged with the administration
and interpretation of Section 302, lest the same Government issue
a multiplicity of interpretations. Therefore, we find that consid-
erations as to, the legality of the checkoff provisions herein under
Section 302 are irrelevant and immaterial to the contract bar
issue.
Our experience under the Keystone rule of inquiring. as to the legality
of the checkoff provisions, has demonstrated the:w: sdom in the above
policy. For, even though the Board conscientiously attempts to fol-
low Justice Department interpretations of Section 302, insofar as
they exist, inevitably we are called to pass upon situations, as here,
where no definitive statement of policy exists. Moreover, as our con-
cern is directed to what the contractual provisions require, and the
concern of the Justice Department is with the actual conditions
under which dues are checked off and paid over to the union, our
inquiry will always tend to result in a different interpretation and
assessment of the legality of the contracting parties conduct than that
reached by the Justice Department. Evidence of -this may: be, seen
in our experience in the instant case and the Wm. Wolf Bakery case.'
Accordingly, I have concluded that application of the Keystone
rule as it relates to checkoff provisions, of which our initial decision
herein was but ,a particular application, does not effectuate the policies
of the Act. I therefore reverse my prior decision herein, and agree
with the majority that the inclusion of the dual notification. provisions
in the checkoff clause was an insufficient basis for holding that the
contract could not serve as a bar to an election of representatives.
Notwithstanding the foregoing, I join with the majority decision
insofar as it declines to vacate and set aside the direction of election,
the elections, or the certification of representatives. As the Intervenor
won the election, it was not prejudiced by the prior decision that its
contract was not a bar to the election, or the instant modification of
that decision.
MEMBER KIMBALL , dissenting :
As a member of the original panel in this case, I was of the view
that a subsisting contract was not a bar to the holding of an election,
as I believed that the United States Supreme Court decision in Felter
v. Southern Pacific Co., 359 U.S. 326, was dispositive of the question
posed therein.
I have considered the motion for reconsideration and reargument
submitted by the interested parties herein, and find nothing therein
which persuades me to alter my original position. I therefore dissent
from the Supplemental Decision Modifying Decision and Direction of
Election.
4 Wm. Wolf Bakery, Inc., 122 NLRB 630.