Cameron Iron Works, Inc.

National Labor Relations Board - Board Decisions

Oct 29, 1984

272 N.L.R.B. 984 (N.L.R.B. 1984)

984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cameron Iron Works, Inc. and J. E. Keeling
Local Union No. 15, International Association of
Machinists and Aerospace Workers, AFL-CIO
and J. E. Keeling. Cases 23-CA-9379 and 23-
CB-2793
29 October 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 16 March 1984 Administrative Law Judge
William A. Gershuny issued the attached decision.
The General Counsel and the Charging Party filed
exceptions, and the General Counsel filed a sup-
porting brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
MEMBER HUNTER, concurring.
I agree with my colleagues that the Respondents
did not violate the Act by resuming dues checkoffs
pursuant to unrevoked checkoff authorizations for
employees after their return to the bargaining unit
from supervisory positions. I disagree, however,
with their reliance on the judge's analysis of the
facts under A. 0. Smith Corp., 227 NLRB 854
(1977).
A. 0. Smith, as the judge acknowledges, in-
volved solely the issue of the application of a bar-
gaining agreement's union-security provision to an
employee who during successive periods was first a
' We do not rely on the Judge's discussion of Cameron Iron Works, 235
NLRB 287 (1978), enf denied 591 F 2d 1 (5th Cir 1979), in which the
Issue was whether the employer and the union could Impose additional
conditions on checkoff revocation without obtaining new authorization
cards from employees That Issue is not presented in the instant case Ad-
ditionally, the Judge incorrectly stated that the prior case involved the
same authorization cards at Issue here, subsequent to the litigation in the
prior case, the wording of the authorization cards was changed We also
do not rely on the complaint allegations in the Federal court lawsuit of
which the Judge took judicial notice The lawsuit Involves only a fraction
of the employees involved in the Instant case, and the complaint itself is
not evidence of the matters alleged
We do find merit in the Judge's analysis of the facts under A 0 Smith
Corp. 227 NLRB 854 (1977), and his conclusion that, on this record, the
employees who transferred out of the bargaining unit had a reasonable
expectancy of reemployment in the unit
unit employee, then a supervisor, and then again an
employee. The key question in A. 0. Smith was
whether the statutory 30-day grace period under
Section 8(a)(3) of the Act would again be applica-
ble to such an employee on his return to the unit.
A divided Board held that it would not on the
basis that the individual involved had a reasonable
expectancy when he became a supervisor that he
would return to the bargaining unit.
I find that the principle involving the continuing
validity of an individual's unrevoked dues-checkoff
authorization is distinct from those underlying a
union-security provision. While the latter is inher-
ently tied to the proviso language in Section 8(a)(3)
and is valid only during the term of the collective-
bargaining agreement, an individual's checkoff au-
thorization is solely a voluntary contract between
an employee and his employer.' Thus, the employ-
ee's checkoff authorization may survive the bar-
gaining agreement's expiration 2 or the member's
resignation from the union. 3 Accordingly, I find
that A. 0. Smith is inapposite and do not pass on
whether it was correctly decided.
The basis for my agreement with the result
reached by the majority, that the Respondents did
not violate the Act by the resumption of dues
checkoff for the former supervisors after their
return to the bargaining unit, is that these supervi-
sors made no attempt to rescind their dues-checkoff
authorizations which have thus continued to
remain valid. It is well established that the terms of
a checkoff authorization, including those pertaining
to revocability, must be specifically expressed in
the authorization itself. 4 Only in certain circum-
stances, none of which are present here, will the
Board depart from this rule and find that a check-
off authorization is revocable beyond its terms, 6 is
revoked by operation of law due to the effect of
certain terms in the checkoff authorization, 6 or is
' See Machinists Local 2045 (Eagle Signal), 268 NLRB 635 (1984)
2 See American Nurses' Assn, 250 NLRB 1324, 1331 (1980), Frito-Lay,
Inc. 243 NLRB 137 (1979) Cf Robbins Door & Sash Co, 260 NLRB 659
(1982)
3 See American Nurses' Assn, supra at 1331, Chemical Workers Local
143 (American Cyanamid), 188 NLRB 705, 707 (1971) Cf cases at fn 6
below
' Trico Products Corp. 238 NLRB 1306, 1309 (1978)
5 Bedford Can Mfg Corp, 162 NLRB 1428 (1967), Penn Cork & Clo-
sures, 156 NLRB 411 (1965), enfd 376 F 2d 52 (2d Or 1967), in which
the Board held that a vote to deauthorize a union from maintaining a
union-security clause made outstanding checkoff authorizations revocable
at will
6 Eagle Signal, supra, Steelworkers Local 7450 (Asarco Inc ), 246 NLRB
878 (1979), Carpenters (Campbell Industries), 243 NLRB 147 (1979) In
each of these cases, the Board held that an employee's resignation from
membership served to revoke his dues-checkoff authorization because the
authorization stated that his dues were in consideration for membership
or were otherwise a quid pro quo for membership
272 NLRB No. 147
CAMERON IRON WORKS 985
revoked due to events unrelated to the terms of the
checkoff. 7 In the two cases in which the Board
held that an independent intervening event can-
celed the authorization, its holding was based on
the total severance of the employment relationship
by the individual who signed the checkoff. In the
present case, no severance of the employment rela-
tionship occurred while those who had signed dues
checkoffs were in supervisory positions. Their
tenure with the Respondent Employer remained
undisturbed, and under the bargaining agreement's
seniority provisions they continued to accrue bar-
gaining unit seniority while serving as supervisors.
In the absence of any affirmative act on the part of
these supervisors to revoke their checkoffs while
outside the bargaining unit, I conclude that their
checkoff authorizations remained effective and that
the Respondents lawfully resumed honoring the
checkoffs. 8
7 Railway Clerks (Yellow Cab), 205 NLRB 890 (1973), Cavalier Indus-
tries, 195 NLRB 1121 (1972), enf denied 473 F 2d 1258 (6th Or 1973)
8 Although the Respondent Employer refrained from making dues de-
ductions for those who had signed checkoff authorizations during the
period they were supervisors, this suspension of dues checkoffs did not
serve as a revocation of the authorizations See Sun Harbor Caribe, Inc,
237 NLRB 444,446 (1978)
DECISION
WILLIAM A. GERSHUNY, Administrative Law Judge.
A hearing was conducted in Houston, Texas, on January
10, 1984, on a consolidated complaint issued September
16, 1983, alleging violations of Section 8(a)(1) and (2)
and Section 8(b)(1)(A) based on the Employer's with-
holding of union dues at the request of the Union pursu-
ant to lawful dues-checkoff authorizations executed by
bargaining unit employees who thereafter were trans-
ferred to nonbargaining unit positions and then returned
to the bargaining unit.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleges, the answers admit and, I find
that Respondent Employer is an employer within the
meaning of Section 2(2), (6), and (7) of the Act and Re-
spondent Union is a labor organization within the mean-
ing of Section 2(5) of the Act
ll UNFAIR LABOR PRACTICES
A. The Facts
The facts are not in dispute Respondents, without
waiving their right to offer evidence in the event mo-
tions to dismiss are not granted, Fed R Civ P 41(b), stip-
ulated as follows.
(1) That the approximately 130 employees listed on
Appendix A to the complaint were bargaining unit em-
ployees about the dates indicated in the Appendix as
"Company Seniority."
(2) That each employee executed a checkoff authoriza-
tion while employed in the unit
(3) That thereafter while each employee was in a non-
bargaining unit, salaried position, no union dues were
withheld.
(4) That thereafter each employee was returned to a
bargaining unit position
(5) That the Employer was requested by the Union to
commence again to honor the checkoff authorizations.
(6) That pursuant to the above request the Employer
withheld union dues and transmitted the moneys to the
Union.
There is no evidence that any of the employees took
steps to revoke their authorizations. The collective-bar-
gaining agreement contemplates the movement of em-
ployees in and out of the bargaining unit by providing
for the accumulation of seniority by bargaining unit em-
ployees while serving in a nonbargaining unit position
(G.C. Exh. 2, art. XII, sec. 18.)'
At the conclusion of the General Counsel's case, 2 Re-
spondents moved to dismiss the consolidated complaint
in its entirety on a number of grounds, and the parties
agreed to a schedule for the filing of responsive briefs.
B. Discussion
Once again, the Company and the Union are drawn
into costly and time consuming litigation over the check-
off of dues and, once again, the congested dockets of the
Board are taxed by the Charging Parties who have failed
to avail themselves of lawful and nonburdensome con-
tract procedures for the revocation of their dues-check-
off authorizations.
In NLRB v. Cameron Iron Works, 591 F 2d 1 (5th Cir
1979), (Cameron Iron Works 1), the court of appeals re-
fused to enforce a Board order finding violations of Sec-
tion 8(a)(1) and (3) and Section 8(b)(1)(A) and (2), hold-
ing instead that in the absence of record evidence of em-
ployer bad faith or discrimination enforcement of an un-
revoked dues-checkoff authorization card is not violative
of the Act; that in the absence of record evidence of co-
ercion, restraint, or discrimination, the union's request
that the employer withhold dues where employees failed
to give the requisite revocation notice to the union simi-
larly is not violative of the Act; and that in any event a
"notice-to-union" requirement added to the original rev-
ocation procedure is nonburdensome and lawful
The present complaint, Cameron Iron Works II, in-
volves another aspect of those same authorization cards
It alleges that the Company unlawfully gave assistance
' Although the briefs make reference to subsequent arbitration pro-
ceedings dealing with the validity of the employees' return to the bar-
gaining unit, the record contains no such evidence and, accordingly, all
such references are stncken At the same time, however, I take notice of
allegations contained in a complaint filed by 30 of the Charging Parties in
the United States District Court for the Southern District of Texas at
Civil No H-83-5853, in which they allege they "would not have accept-
ed salaried positions without the assurance by Defendant Company of
their right to return to bargaining unit jobs"
2 The record consists of the formal papers, the stipulations, and the
contract
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Union in violation of Section 8(a)(2) and unlawful-
ly interfered with the Section 7 rights of employees in
violation of Section 8(a)(1) and that the Union unlawful-
ly restrained employees in the exercise of those nghts in
violation of Section 8(b)(1)(A) by acting on dues-check-
off authorizations which were "voided" when employees
left the bargaining unit for "permanent supervisory
and/or salaried positions outside the bargaining unit"
As in Cameron Iron Works I, the General Counsel's
proof in Cameron Iron Works II falls well short of the
mark.
The evidence is brief: 130 employees who had execut-
ed dues-checkoff authorizations while employed in the
bargaining unit were transferred to nonbargaming unit
positions, during which time no dues were withheld; on
their return to the unit, dues checkoff recommenced at
the request of the Union
The record deficiencies, however, are most significant
There is no evidence that the positions into which the
employees were moved were permanent. On the con-
trary, the contract, by providing for continued seniority
for bargaining unit employees while working outside the
unit, clearly refutes any suggestion of the "permanency"
of a transfer to a salaried position. Nor did any employee
testify otherwise, presumably for the reason that their
testimony, like their allegations in the pending district
court litigation, would establish an expectancy to return
to the unit.
There is no evidence that the authorizations, by their
terms, were automatically revoked upon transfer to a
nonbargaming unit position within the Company. The
authorization form, set forth in article XVII of the con-
tract, provides only that "this authonzation shall contin-
ue in effect unless revoked by me during a period of rev-
ocation as above provided"
There is no evidence that any of the 130 employees at-
tempted to revoke his authorization or that he was pre-
vented from doing so
There is no evidence of bad faith on the Company's
part Rather, the only inference to be drawn from this
record is that it acted, at the request of the Union, on the
good-faith belief of the continued validity of the dues-
checkoff authorizations, particularly in the absence of a
single revocation notice.
And, finally, there is no evidence of restraint or coer-
cion on the part of the Union. Again, the only permissi-
ble inference is that the Union, like the Company, acted
on the good-faith belief that the cards remained effective
upon return of the employees to the unit.
On this record, Cameron Iron Works I compels dismis-
sal of the complaint
The complaint must be dismissed for yet another
reason—the authorizations continued to be valid, inas-
much as the transfer of the Charging Parties to nonbar-
gaining unit positions was not permanent and their status
as "employees" under the contract remained unaffected.
In A. 0. Smith Corp., 227 NLRB 854 (1977), a case
dealing with the liability for dues under a union-security
clause requiring new employees to become union mem-
bers within 30 days of hire, the Board recognized as
"sound" the general principle, established in Electrical
Workers Local 399 IBEW (Illinois Bell Telephone), 200
NLRB 1050 (1972), enfd 499 F.2d 56 (7th Cir. 1974),
cert denied 419 U.S. 896 (1974), that supervisors return-
ing to the bargaining unit should be treated as new em-
ployees. Nevertheless, it cautioned against a blind adher-
ence to this principle in cases "in which the line between
'supervisor' and 'employee' is not so clearly drawn as it
was in Illinois Bell." The General Counsel has not
heeded that advice here.
The record in A. 0. Smith, like the record here, con-
tained a contract which provided for the accumulation
of contractual seniority for employees working in non-
bargaining unit positions and a factual picture which
demonstrated the movement of employees back and forth
between unit and nonunit positions. Framing the test of
permanency in terms of whether there exists a "reasona-
ble expectancy that when an individual becomes a super-
visor he may soon return to the unit," the Board went
on to conclude that such an expectancy existed under the
facts.
While A. 0. Smith dealt with the issue in the context
of dues liability on return to the unit, NLRB v. Cavalier
Industries, 195 NLRB 1121 (1972), enf. denied 473 F.2d
1258 (6th Cir. 1973), addressed the precise issue present-
ed here—whether an otherwise valid authorization con-
tinues in effect upon return of the employee to the bar-
gaining unit. In Cavalier, the employee returned to work
for the company after a 3-year absence due to illness
She was reemployed without a new job application, was
returned to her former wage rate which was higher than
that of a new employee, and was not charged an initi-
ation fee by the union. Disagreeing with the Board's con-
clusion that, under the facts, the employee had no rea-
sonable expectancy of reemployment, the court of ap-
peals held the authorization to have continuing validity
for the reasons that the employment relationship was not
severed and no revocation of the authorization was at-
tempted
Here, the General Counsel and the Charging Party
rested on a record which reflects a contractual right to
accumulate seniority and movement on the part of 130
employees out of, and back into, the unit. No other evi-
dence was offered relative to the "permanent" nature of
the transfer and not a single employee was called by
either counsel for the General Counsel or the Charging
Party to testify as to their expectancy based on pnor
practice. Indeed, the District Court allegations, of which
I take notice, establish just the contrary—that each ex-
pected to be able to return to the bargaining unit.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 3
ORDER
It is ordered that Respondents' motions to dismiss be
granted and that the consolidated complaint be dis-
missed.
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 objections to them shall be deemed waived for all pur-
poses