Frito-Lay

National Labor Relations Board - Board Decisions

Jun 28, 1979

243 N.L.R.B. 137 (N.L.R.B. 1979)

cation to my Employer with a copy to the Local
Union, not more than twenty (20) days and not
less than ten (10) days prior to the expiration of
each period of one year or of the applicable col-
lective bargaining agreement between my Em-
ployer and the Union, whichever occurs first.
On July 27, 1976, during the hiatus between the
expiration of the old contract and the execution of the
new agreement, six employees who had executed au-
thorizations resigned their memberships in Respon-
dent Union. In addition, they notified both the Union
and the Company that they no longer authorized
withdrawal of union dues from their paychecks. Re-
spondent Company initially complied with the em-
ployees' request and ceased payroll deductions for
these six individuals. Thereafter, the Union com-
plained to the Company that under the correct inter-
pretation of the authorizations, dues deductions were
still mandated because the six employees had failed
to revoke "between ten and twenty days prior to the
anniversary of authorization or the termination of the
contract." Upon reflection. the Company agreed with
the Union's interpretation and reinstituted the deduc-
tions effective September 4, 1976.
Based on the foregoing, our dissenting colleague
would find that Respondent Company violated Sec-
tion 8(a)(1) and (3) of the Act, and that Respondent
Union violated Section 8(b)(I)(A) and (2). She prem-
ises this finding on her view that, the specific provi-
sions in the employees' dues-checkoff authorizations
regarding irrevocability notwithstanding. Section
302(c)(4) of the Act rendered the authorizations revo-
cable at will when the collective-bargaining agree-
ment expired on June 9, 1976. For the reasons stated
hereafter, we consider our colleague's application of
Section 302(c)(4) to the facts of this case inappropri-
ate and, in any case. her interpretation of that section
erroneous.
Checkoff is a means by which employees voluntar-
ily assign a portion of their wages to a union in order
to pay their dues and other obligations to the union.
It is well settled that an employer violates Section
8(a)(3), (2), and (1) if it continues to withhold dues
from employees' wages after the employees have val-
idly revoked their checkoff authorizations. See Indus-
trial Towel and Uniform Service, a Division of Cavalier
Industries, Inc., 195 NLRB 1121 (1972). It is equally
well settled that a union violates Section 8(b)(1)(A)
and (2) if it causes an employer to make deductions in
such circumstances. See Atlanta Printing Specialties
and Paper Products Union Local 527, AFL CIO (The
Mead Corporation), 215 NLRB 237, 238, footnote 4
(1974), enfd. 523 F.2d 783 (5th Cir. 1975). Thus, the
sole question presented in the instant case is whether
employees have the right to revoke their checkoff au-
Frito-Lay, Inc. and Rosalee Salinas, Amalgamated
Meatcutters and Butcher Workmen of North Amer-
ica, Local 540 and Rosalee Salinas. Cases 16-CA
6787 and 16-CB-1183
June 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On September 15, 1977, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter. the General Counsel filed
exceptions and a supporting brief. Respondent Union
filed a brief in opposition to General Counsel's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
We have decided to affirm the Administrative Law
Judge's Decision. However, in response to our dis-
senting colleague's opinion, we shall review briefly
the facts and relevant legal principles that support
this result. The facts were stipulated. The Company
and the Union have been signatories to successive
bargaining agreements since 1964. Of the two agree-
ments relevant to this dispute, the first ran from June
10, 1973, to June 9. 1976: the second was executed on
October 26, 1976, retroactive to June 10, 1976. Both
agreements provided for an agency shop and for
checkoff for employees who executed written checkoff
authorizations. The authorization form utilized here
provides, in pertinent part:
This authorization shall take effect as of the
date hereof and shall remain in effect until re-
voked by me as hereinafter set forth. This autho-
rization shall be irrevocable for a period of one
year from the date hereof, or until the termina-
tion of the collective bargaining agreement now
in effect between my Employer and the Union,
or, if no such agreement is now in effect, until the
termination of any collective bargaining agree-
ment which may hereafter become effective be-
tween my Employer and the Union, whichever
occurs first. This authorization shall be irrevoca-
ble after the expiration of the shorter of the peri-
ods above specified for further successive periods
of one year from the date of expiration of such
period or until the termination of any collective
bargaining agreement which may be effective
during such successive periods, whichever occurs
first. Revocation of this authorization shall be ef-
fective only if I give written notice of such revo-
243 NLRB No. 16
FRITO-LAY 137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thorizations whenever no collective-bargaining agree-
ment is in effect regardless of the specific provisions in
their authorizations limiting revocability.
Our dissenting colleague's suggestion that the va-
lidity of checkoff arrangements for purposes of Sec-
tion 8 must be judged in light of the provisions of
Section 302(c)(4) is contrary to well-settled law. In
Salant & Salant, Inc., 88 NLRB 816, 817 818 (1950),
the Board stated:
ITIhe limitations on checkoff in Section 302 were
intended neither to create a new unfair labor
practice, nor even to be considered in determining
whether checkoff violates Section 8 of the Act.
We reach this conclusion for the following rea-
sons: (1) The original House Bill as reported and
passed specifically made a checkoff that did not
meet certain requirements an unfair labor prac-
tice under Section 8(a)(2), but this provision was
eliminated from that section in conference, and
from the Bill as finally enacted, thereby implying
that unlawful checkoff was not intended to be
made a per se unfair labor practice; (2) The re-
strictions on checkoff appear instead in Title ll
of the Act, with a similar implication; and (3)
Section 302 itself establishes what was plainly in-
tended to be the method of enforcing and pre-
venting violations of its provisions, viz, criminal
sanctions and injunction by U.S. District Courts,
upon prosecution and petition for injunction by
the Attorney General. [Emphasis supplied.]'
Consequently, our dissenting colleague is in error in
suggesting that conduct which violates Section
302(c)(4) necessarily is an unfair labor practice.2
Moreover, assuming arguendo that Section
302(c)(4) is relevant to the issues in this proceeding,
we can find no support for our dissenting colleague's
assertion that that section renders all checkoff autho-
rizations, regardless of their terms, revocable at will in
the absence of a collective-bargaining agreement.
Section 302 of the Act makes it a crime for an em-
ployer to willfully "pay, lend, or deliver" money to a
labor organization or for a labor organization to "re-
quest, demand, receive, or accept" such payments, ex-
cept in certain limited circumstances. These restric-
tions were intended to deal with several forms of
labor racketeering (e.g., bribery, extortion, and other
corrupt dealings). See Monroe Lodge No. 770, Inter-
I Thus, although our dissenting colleague apparently would have it other-
wise, the Board has interpreted Sec. 3 02(cX4) not by reference to "some
vague legislative intent" but rather in light of the clear legislative history of
the section.
2 The Board has generally adhered to the approach taken in Soalan. E.g.,
Bagget Industrial Constructors Incorporated, 219 NLRB 171 (1975); Biiso
Towboat Company, Inc., 192 NLRB 885 (1971); but cf. The Mead Corpora-
tion, supra.
national Association of Machinists and Aerospace
Workers, AFL-CIO v. Litton Business System, Inc.,
334 F.Supp. 310 (W.D.Va., 1971). Thus, the Act
exempts from proscription certain types of payments
which further legitimate ends. Among these are pay-
ments deducted from employees' wages in the form of
union dues. Section 302(c)(4), however, restricts such
checkoff arrangements by the additional proviso that
"[t]he employer [have] received from each employee,
on whose account such deductions are made, a writ-
ten assignment which shall not be irrevocable for a
period of more than one year, or beyond the termina-
tion date of the applicable collective agreement,
whichever occurs sooner." All that is evident from
this provision, however, is that Congress sought to
insure that such authorizations could be revoked at
least once a year and at the termination of any "ap-
plicable collective agreement." Consistent with this
interpretation of congressional intent, the courts have
construed Section 302(c)(4) to permit the use of au-
thorizations which automatically renew unless they
are revoked during an escape period ofL for example,
10 days before or after the expiration of I year from
their execution or the termination of the applicable
collective-bargaining agreement. See, e.g., Litton
Business S.'vslems, Inc., supra:, /malgamnated Meat
('ltterv and Allied Workers of North A. merica, Local
No. 593 v. Shen-,Mar Food Products. Inc., 405 F.Supp.
1122 (W.D.Va., 1975). See also "Justice Department's
Opinion on Checkoff of May 13, 1948," 22 LRRM 46
(1948). Thus, there is no violation of Section 302(c)(4)
if checkoff authorizations are irrevocable for stated
periods and automatically renewed fr like periods,
as long as employees are accorded an opportunity to
revoke their authorizations at least once a year and at
the termination of any applicable collective-bargain-
ing agreements. And the limiting of the opportunity
to revoke to a reasonable escape period, such as be-
tween 20 and 10 days before the expiration of either
of these periods, does not require a different result.
Our dissenting colleague's conclusion that Section
302(c)(4) mandates that checkoff authorizations be re-
vocable at will whenever there is no collective-bar-
gaining agreement in effect, and that an attempt to
countermand that principle per se violates Section 8,
is based on a fundamental misinterpretation of the
cases on which she relies. Those cases hold that,
where an intent that checkoffs be revocable at will
following the expiration of a collective agreement is
evident from the applicable collective-bargaining
agreement or from the checkoff authorizations them-
selves, it will constitute a violation of the Act for an
employer and a union to seek to countermand that
intent. Thus, in International Chemical Workers
Union. Local 143, AFL CIO (Lederle Lahoratories,
Division of/American Cvtanamid Conmpany). 188 NLRB
138
executed checkoff authorizations which cxpres.s/l con-
templated the possibility of periods when no contract
would be in effect. The authorizations provided that
they would be irrevocable except for two escape peri-
ods; one 10-day period ending 10 days prior to the
expiration of I year from the date the authorization
was executed: and one 10-day period ending 10 days
prior to the expiration of any collective-bargaining
agreement in effect or which became effective after
the execution of the authorization. Since the employ-
ees did not revoke their authorizations during either
of these escape periods, the Union and the Employer
were justified in considering the authorizations still
valid. Hence, we see no good reason to hold unlawful
Respondent Union's request (or the Employer's ac-
quiescence in that request) that the Employer con-
tinue to deduct dues pursuant to such outstanding
checkoff authorizations. Accordingly, we adopt the
Administrative Law Judge's dismissal of the com-
plaints.
ORDLER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaints be, and they hereby are.
dismissed in their entirety.
MEMBt R MURPIIY, dissenting:
The majority is holding that checkoff authoriza-
tions here are legally revoked only during the 20 to
10-day period prior to expiration of the collective-
bargaining agreement or the anniversary of the
checkoff authorizations, as provided therein. Accord-
ingly, they find that revocations made during the con-
tract hiatus period were ineffective and that Respon-
dents did not violate Section 8(h)(1(A) and (2) and
Section 8(a)(l) and (3) of the Act by their failure to
honor them. I disagree. I find that, as a matter of law,
under the clear mandate of the proviso to Section
302(c)(4) of the Act, a dues-checkoff authorization is
revocable when a collective-bargaining contract is not
in effect. The appropriate parts of Section 302(c)(4)
read:
Sec. 302. (a) It shall be unlawful fior any em-
ployer or association of employers ... to pa,
lend, or deliver... anv money or other thing of
value-
* * * * *
(2) to any labor organization ... which repre-
sents ... any of the employees of such employer
705 (1971), the Board found, inter alia, that a union
did not violate Section 8(b)(1)(A) when it demanded
that dues he checked off during a contractual hiatus
period pursuant to unrevoked checkoff authoriza-
tions. To be sure, our dissenting colleague is correct
in observing that the Board stated that "all of the
authorizations became terminable at will after the
contract expired." Id. at 707. But she fails to note that
the Board also specifically stated that the dispute was
one "involving contract interpretation rather than
one involving an interpretation and application of the
Act." And in Lowell Corrugated Container Corpora-
lion, 177 NLRB 169 (1969), the Board adopted the
trial examiner's finding that an employer did not vio-
late the Act when it continued to honor unrevoked
checkoff authorizations after the expiration of the
contract. Moreover, the cases cited by the trial exam-
iner in Lowell Corrugated Container Corporation hold
that revocations of checkoff authorizations must be
honored after the expiration of a collective-bargain-
ing agreement if, either by their express terms 3 or by
implication, 4 it is clear that they were intended to be
revocable at will when no contract was in effect.'
In agreement with the Administrative Law Judge,
we do not believe the facts here warrant finding that
Respondents committed an unfair labor practice by
the continued deduction of dues after the contract
expired and employees attempted to revoke their
checkoff authorizations. The employees voluntarily
See Merchants Fast Motor Lines, 171 NLRB 1444 (1968) (aulhorizations
were expressly revocable at any time). Similarly. in San Diego Cournt Dis
trict Council of Carpenters and Joiners of America (Campbell Industries) 243
NLRB 147. the Board holds today that a union violated Sec. 8(bXlX)A)
when it caused the employer to continue to withhold dues from employees'
wages after those employees had successfully resigned from the union Al-
though resignation ordinarily does not revoke outstanding checkoff authori-
zations, the Board holds that it did so in that case because the authorizations
specifically provided that they were "in consideration of the benefits received
as a result of membership in the Union." Cf. Lederle lrhboratories, Aupra
Since such language does not appear in the authorizations used in the instant
case, our dissenting colleague's contention that our decision is "directly in
conflict" with Campbell is plainly wrong.
'In Bedford Can Manufacturing Corp., 162 NLRB 1428 (1967),. and in
Penn Cork & Closures. Inc.. 156 NL.RB 41 1(1965), enfd. 376 F.2d 52 (2d Cir.
1967), the Board held that a vote to deauthorize a union from maintaining a
union-securit) clause made outstanding checkoff authorizations revocable at
will. The Board reasoned that it would not infer that "absent the compulsion
of the union-security clause to pay dues], the employees would have acqui-
esced in the renewal of their checkoff authorizations." 162 NLRB at 1431.
But a similar inference is not warranted regarding a contractual hiatus pe-
riod.
5 See also The Associated Press. 199 NLRB 1110 ( 1972). petition for review
denied 492 F.2d 662 (D.C. Cir. 1974), where the Board found that an arbitra-
tor's award. holding that authorizations which are valid otherwise do not
automatically become revocable at will during a hiatus between contracts,
was not repugnant to the policies and purposes of the Act under Spielberg
Manufacturing Company. 112 NLRB 1080 (1955).
In her dissenting opinion, our colleague points to a remark by the trial
examiner in Lowell Corrugated Container Corporation that "the employee is
free to repudiate or revoke his authorization at any time after the contract
expired" as supporting her views here. Our colleague fails to note. however.
that the cases cited by the trial examiner in connection with this dictum
observation plainly do not support such a broad proposition
* * *
FR IT1-0-I.A Y 139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) The provisions of this section shall not be
applicable . . . (4) with respect to money de-
ducted from wages of employees in payment of
membership dues in a labor organization: Pro-
vided, That the employer has received from each
employee, on whose account such deductions are
made, a written assignment which shall not be
irrevocable for a period of more than one year,
or beyond the termination date of the applicable
collective agreement, whichever occurs sooner;
There is no dispute concerning the facts and briefly
they are as follows: The Union and the Company had
a bargaining agreement which expired on June 9,
1976. Thereafter, on October 25, 1976, they entered
into a succeeding agreement. Despite the second con-
tract's being retroactive to June 10, there was, for
purposes here, no agreement in effect between June 9
and October 25. Both of the contracts contained an
agency-shop provision requiring in effect that each
employee pay union dues as a condition of employ-
ment and also a dues-checkoff provision providing for
company deduction of dues from the pay of employ-
ees who submitted authorization forms. The particu-
lar authorizations provide essentially that they would
be irrevocable for a year or "until the termination of
the collective bargaining agreement now in effect
.... " They further provided that revocation of autho-
rization could be effected by written notice given not
more than 20 nor less than 10 days prior to the expi-
ration of each -year period or of the applicable bar-
gaining agreement.
On or about July 27, 1976-that is, during the June
9 to October 25 contractual hiatus period-six em-
ployees submitted notices to the Company and the
Union stating they were terminating their union
membership and were withdrawing authorization for
the checkoff of their union dues. As a consequence,
the Company stopped deducting dues from the six
employees' pay. The Union, by letter dated August
27, objected to the Company's honoring the revoca-
tions which it stated was "contrary to the check-off
authorizations." More specifically, it contended, as
does the majority here, that the revocations were not
effective because the forms specified they be sub-
mitted "between ten (10) and twenty (20) days prior
to the anniversary of the authorization or termination
of the existing contract." Since none of the revoca-
tions in dispute here was submitted during this pe-
riod, the Union demanded that checkoff of the six
employees' dues be reinstated. The Company, with-
out the affected employees' consent, complied as of
September 4, 1976, with the Union's demand.
In dispute here is the effectiveness of the employ-
ees' checkoff revocations and the legality of the Com-
pany's and the Union's failure and refusal to honor
those revocations. The Union's position is, as the
facts recited above indicate, straightforward. It basi-
cally contends, as it stated in its letter to the Com-
pany, that, as the employees did not submit their re-
vocations during the "escape" period just prior to the
contract's expiration period, each authorization was
renewed for another term as specified by its provi-
sions. The General Counsel6 contends, however, that
the duration of the authorizations was limited by the
parties' bargaining agreement to the period of that
agreement, that the authorization escape period was
too limited and thus in effect not binding on employ-
ees, that during the contractual hiatus period the au-
thorizations were terminable at will, and thus the re-
vocations submitted in July were necessarily effective.
The Administrative Law Judge and presumably my
colleagues of the majority-concluded essentially that
the authorizations were not controlled by or tied to
the language of the bargaining contract but were
separate agreements to be separately construed; that
the provided "escape" period was not unlawfully re-
strictive; and that, in consequence of the foregoing,
the authorizations had, as the Union argues. renewed
for another binding term at the time the disputed re-
vocations were submitted. He found no violations in
the refusal to honor them. The majority agreed.
I find in agreement with the General Counsel that
the authorizations were revocable upon request dur-
ing the contractual hiatus period. As I indicated
above, this result is fully supported by a reading of
the plain language of Section 302(c)(4) of the Act
which provides, inter alia, that a wage assignment
"shall not be irrevocable ... beyond the termination
date of the applicable collective agreement .... " No
legal exegesis looking for vague implications of the
language used or for some veiled legislative intent is
necessary here, for the language is clear on its face
that once the contract terminates the authorization is
revocable. And this rather obvious conclusion is in
accord with past Board decisions on the matter.7
b The Company filed no brief in support of its position in failing to honor
the revocations.
7 See Internarional Chemical Workerr Union, Local 143, AFL CIO (Led-
erle Laboratories, etc), 188 NLRB 707 (1971). where the Board stated that
authorizations in a union's possession "became terminable at will after the
lunderlying] contract expired .... " See also Lowell Corrugated Container
Corporation, 177 NLRB 169 (1969). in which the Board adopted the admin-
istrative law judge's (then called trial examiner) decision in which it was
concluded that "[the] employee is free to repudiate or revoke his authoriza-
tion at any time after the contract [sanctioning the authorization] expired."
177 NLRB at 173. But see The Associated Press 199 NLRB 1110 (1972).
cited by the Administrative Law Judge in this proceeding in support of his
result. In that case, the Board essentially held not repugnant to the Act an
arbitration decision to the effect that revocations must be submitted during
the authorizations' escape period and did not become terminable at will with
the expiration of the underlying contract. Insofar as the arbitrator's conclu-
sions involve an interpretation of the provision of the Act. they are obviously
wrong. And I find it difficult to conceive that the members of the majority in
this case would in effect defer to an arbitrator where a basic interpretation of
the Act is involved. Consequently, The Associated Press case is of no help in
resolving the issues here before the Board.
140
DECISION
STATEMENr OF tll: CASI
CHARLES W. SCHNEIDER. Administrative Law Judge: On
September 13, 1976, Rosalee Salinas, the Charging Party.
filed separate unfair labor practice charges pursuant to the
National Labor Relations Act, 29 U.S.C.. §151 cr xeq..
against Frito-Lay, Inc., the Company, and against Amalga-
mated Meatcutters and Butcher W'orkmen of North Amer-
ica, Local 540, the Union.
On January 19, 1977, the Acting Regional Director for
Region 16 of the Board issued a complaint upon the charge
against the Union. On February 9. 1977. the Regional Di-
rector issued a complaint upon the charge against the Com-
pany. and consolidated the two cases.
The complaints allege, in sum. that the Company. at the
insistence of the Union. deducted union dues from the pa
of Salinas and five other employees,' although the employ-
ees had revoked their authorizations for such deductions.
By such action the Company allegedly violated Section
8(a)(1) and (3) of the Act, and the Union violated Section
8(b)(1)(A) and (2) of the Act.
The Company and the Union dulb filed answers denying
the commission of unfair labor practices.
Thereafter the parties entered into stipulation as to the
facts. The stipulation provided for a waiver of hearing on
the complaints and for submission of the matter to a duls
designated administrative law judge. Thereafter I was dulv
designated the Administrative Law Judge. Briefs were sub-
sequently filed by the General Counsel and the Union. and
have been considered. Upon the record thus made, and the
briefs, I make the following:
FINI)IN;S OF FA( I
I. JURISDICTION AND l.ABOR ORGASIZ.ATION
There is, furthermore, no need to consider, as did
the Administrative Law Judge, whether or not an au-
thorization is tied to or controlled by the "applicable
collective agreement," for the statute is patently con-
cerned solely with the existence of a current bargain-
ing agreement as a condition precedent to an employ-
ee's being held to an irrevocable checkoff. Neither is
it necessary to consider if the contract gave rise to, or
limits, or otherwise seeks to affect the checkoff, for
the matter before the Board concerns a statutory, not
contractual, limitation on checkoff. Similarly, that the
employees may have, pursuant to the language of the
authorizations, been able to revoke their authoriza-
tions shortly before the contract expired is of no con-
sequence concerning the present issue, for contractual
permission to revoke prior to termination cannot limit
an employee's statutory right to revoke after termina-
tion, when no contract is in effect. 8
In short, contrary to the position taken by the ma-
jority, Section 302 provides on its face that the employ-
ees could revoke their authorization after the contract
terminated, and that is what they did. Consequently,
the Company's failure to honor those revocations
compelled the employees to submit to a checkoff they
no longer authorized-and had legally canceled and
forced the employees as a condition of employment to
the Union where there was no lawful union-security
provision in effect. By failing to honor the revocations
the Company violated Section 8(a)(3) and (1) of the
Act, and the Union by causing the Company to fail to
honor the revocations violated Section 8(b)(l)(A) and
(2). 1 would so find9 and issue an appropriate reme-
dial order.'0
m Whether or not the limited "escape" penod specified in the authorization
was legally sufficient is not relevant to the issue under consideration. Never-
theless, for purposes of discussion in this proceeding, I assume that it was.
The majonty's contrary position seems to be on essential points directly
in conflict with its decision in San Diego CounOt District Council of Carpen-
lers and Joiners of America (Campbell Industries), 243 NLRB 147 (1979).
There the majority held that a resignation from union membership during a
contractual hiatus period automatically canceled outstanding unrevoked au-
thorizations. Here it holds that a revocation in addition to a resignation does
not during a contractual hiatus period cancel an outstanding revocation.
However. these inconsistencies do not bother the majority.
I Contrary to the argument of my colleagues. I quite obviously am not
contending that Sec. 302 of the Act created a new unfair labor practice, and
the difference between us, as they should realize, does not concern any such
matter. But I do appreciate that by so confounding our differences they have
provided themselves with several really irrelevant cases to cite against my
purported position. This is commonly referred to as knocking down straw-
men, or perhaps even strawwomen. What I am obviously holding is that the
authorizations in dispute were effectively terminated and, thus, that the con-
tinued checking off was unlawful. My position is predicated on my conclu-
sion that, once the underlying contract giving rise to authorizations had
expired, the authorizations, irrespective of their specific language, became
terminable at will. A plain reading of Sec. 302 and of the cases I cite, without
the strained exegesis of the majonty, seems to me. as I point out above, to
soundly support this result. But, alas, I have failed to convince my colleagues
of that fact and therein lies our difference.
Frito-Lay. Inc., herein called Frito-La., is a Delaware
corporation with its principal office in Dallas. Texas. where
it is engaged in the manufacture and distribution of snack
food products. During the past year, Frito-Lay. in the
course and conduct of its business operations from its )al-
las, Texas. facility purchased and received goods and mate-
rials valued in excess of $50.000 which were transported to
its place of business in Dallas. Texas. in interstate com-
merce directly from suppliers in States of the United States
other than the State of Texas. Frito-Lay is, and has been at
all times material herein. engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
The Union is. and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of the
Act.
If. THE UNFAIR LABOR PRAC II(ICS
A. The Issue
The issue is the validity of the continuation of union dues
deductions by the Company from the wages of the six
I Sheryl Carroll. Winnie Cole, Shirley Fae Green, Marie Myrtle Rle.
and Mary Spain.
FRITO-LAY 141
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
named employees, pursuant to the Union's insistence
thereon, after the employees had sought to revoke authori-
zations previously given for such deductions. More specifi-
cally, the question is whether the authorizations could, con-
sistently with Section 302(c)(4) of the Act, be made
revocable only during a specified and limited period of
time, and if so, whether such a limitation on revocation
applies during a period of time when a collective-bargain-
ing agreement is not in existence.
B. Section 302(c)(4)
Section 302 of the National Labor Relations Act, inter
alia, prohibits the payment of money by an employer to a
labor organization, with certain exceptions. Among the ex-
ceptions is one, in Section 302(c)(4), permitting an employer
to deduct union dues from the wages of an employee,
. . .Provided, That the employer has received from
each employee, on whose account such deductions are
made, a written assignment which shall not be irrevo-
cable for a period of more than one year, or beyond
the termination date of the applicable collective agree-
ment, whichever occurs sooner....
C. The Facts
I. The contracts
Since 1964 the Company and the Union have continu-
ously been parties to collective-bargaining agreements
which have included provsions for deductions by the Com-
pany of union membership dues from employees' wages,
upon written authorization signed by the employees. Two
of those bargaining agreements are involved in the present
controversy. The first became effective on June 10, 1973,
and expired on June 9, 1976; the second was executed on
October 25, 1976, retroactive to June 10, 1976, and effective
to June 9, 1979. No contract was in existence covering the
period between June 9 and October 25, 1976, until the new
and retroactive agreement was executed on October 25,
1976.
Both of those contracts contained clauses providing that
union membership was not compulsory, but setting up an
"agency shop": that is, provision that nonmembers of the
Union were required to pay the Union the equivalent of
union dues. The Union further agreed to accept into mem-
bership, without discrimination, any employee who prop-
erly tendered application, and to represent all unit employ-
ees fairly without regard to union membership.
In addition, the contracts required the Company to de-
duct from the wages of employees who executed written
authorizations permitting it, monthly dues and initiation
fees, and to remit those sums to the Union.
Those various provisions are found in articles 2 and 3 of
the 1973 76 contract, and its 1976 successor, which read as
follows:
ARTICLE 2
Authorized Dues Deduction
Section I. The Company shall deduct, as to each
employee who shall authorize it in writing in an appro-
priate form agreed to by the Union and the Company,
and as to each employee who has heretofore executed
a form which is on file with the Company and which
has not been revoked, and for so long only during the
period of this Agreement is in effect as such authoriza-
tion shall remain in force, from the first pay payable to
such employee each month, monthly union dues and
initiation fees for the current month and remit same to
the appropriate Local Union Officials. This authoriza-
tion shall take effect as of the date hereof and shall
continue in effect for successive one-year periods or
until the termination of this Agreement.
ARTICLE 3
Agency Shop
Section . Membership in the Union is not compul-
sory. Employees have the right to join, not join, main-
tain, or drop their membership in the Union as they
see fit. Neither party shall exert any pressure on or
discriminate against an employee as regards such mat-
ters. The Union agrees to accept into its membership
without discrimination any employee who properly
tenders application for such membership.
Section 2. The Union is required under this Agree-
ment to represent all of the employees in the bargain-
ing unit fairly and equally without regard to whether
or not any employee is a member of the Union. The
terms of this Agreement have been made for all em-
ployees in the bargaining unit and not only for mem-
bers of the Union. and this Agreement has been ex-
ecuted by the Employer after it has satisfied itself that
the Union is the choice of the majority of the employ-
ees in the bargaining unit. Accordingly, it is recognized
that it is fair for each employee in the bargaining unit,
whether a Union member or not, to pay his propor-
tionate share of the cost of representation and assume
that share of the obligation along with his receipt of
equal benefits contained in this Agreement.
Section 3. In accordance with the policy set forth in
Sections I and 2 of this Article, each employee who is
not a member of the Union shall be required to pay the
Union, the employee's exclusive bargaining representa-
tive, an amount of money equal to that paid by an
employee in the bargaining unit who is a member of
the Union, which shall be limited to an amount of
money equal to the Union's regular and usual dues.
This amount of money is in payment for services ren-
dered by the Union and is not payment for the privi-
lege of work. Accordingly, it is not, nor is it intended to
be, a work permit or a condition for the privilege to
work. It is a payment necessary to preserve, and to
prevent limitations upon, the bargaining power of the
Union and its power to represent the employees as to
their wages, hours, grievances, terms and other condi-
tions of employment. For present employees, such pay-
ments shall commence thirty-one (31) working days
following the effective date or on the date of execution
of this Agreement, whichever is later, and for new em-
ployees, the payment shall start thirty-one (31) work-
ing days following the date of employment.
142
These formls have been contintousl mIn use since 1964.
All six of the employees involved signed such authoriza-
tions on or about the follouwing dates: Sherl Carroll. Jul
28. 1973: Winnie Cole, November 28. 1973: Shirle Faye
Green. March 26, 1970; Marie MNrtle Rile. February 10.
1964: Rosalee Salinas. ebruary 27. 1973: Mar Spain.
July 24. 1964.2
3. The attempted revocations and the result
On or about July 27. 1976. all six of the involved emplo!-
ees attempted to terminate their memberships in the Union
and to revoke their dues authorizations, hb delverin to the
Compan and the Union the lllow-ing ritten notice, dated
July 27, 1976, signed hb each of the emploeeS
We. the undersigned. hereb terminate our memrnber-
ship in Amalgamated Meat ('utters and Butcher
W'orkmen of North America ,\ l. ('10() .ocall nion
No. 540 .... We no longer authorize the itlhdra, al of
union dues from our paychecks.
Pursuant t that ntice, the ('omp;anl ceased lmaking
dues paroll deductions t r the six emplo ec oni o about
Jul 31, 1976, and made no deductions during the month of'
August.
Thereafter, by letter dated August 27. 1976. the nion
demanded that dues deductions be reinstituted for those
employees. he tnion's letter stated. in prt:
Your action is contrar, to te checkoff authorizationl
in our tfiles t'ir each of these individuals.
The letter then quoted the tex\t of the authoriitiont,'. and
concluded:
The sum of' this language is that depending upon
which occurs first. notification of termination of check-
off authorization must be forwarded between ten (10}
and twenty (201 days prior to the anniversary of autho-
rization or the termination of the existing contract.
None of the above referenced individuals have met
with this requirement.
On behalf of Local 540 we demand that ou deduct
and forward union dues from the above referenced in-
dividuals.
Thereafter. the Company reinstituted the pastroll dues
deductions effective September 4, 1976, without conulilng
the employees concerned and absent the execution f nies
dues deduction authorizations bh said employees. aind has
continued to deduct and remit such dues to the nion on a
regular periodic basis. At no time between June 9. 1976.
and September 4. 1976. did the Company and the Union
negotiate a new collective-hargaining agreement to succeed
the one which terminated on June 9. 1976.
2 Spain's card is undated, hut it is stipulated that she signed the authoriza-
tion on or about the date given
2. The checkoff authorizations
The checkoff authorizations signed by employees. includ-
ing the six involved here. which also included application
for membership in the Union. were in the following firm:
DESIGNATION AD CIIECKOFF AUTHORIZATION
I hereby request and accept membership
in Amalgamated Meat Cutters and Butcher
Wbrkmen of North America, Local Union No.
540, and designate said labor organiza-
tion as my sole and exclusive represen-
tative for the purposes of collective
bargaining with my Employer in respect
to rates of pay, wages, hours of employ-
ment or other conditions of eployment.
I further authorize and direct my
Enployer, , at Store No. ,to
deduct from the first pay payable to me
each mDonth the initiation fee and the
regular monthly Local Union dues for
the current (or preceding) month and to
remit the same to the Financial Sec-
retary of said Local Union.
This authorization shall take effect
as of the date hereof and shall remain
in effect until revoked by me as here-
inafter set forth. This authorization
shall be irrevocable for a period of
one year from the date hereof, or until
the termination of the collective
bargaining agreement now in effect be-
tween my Employer and the Union, or,
if no such agreement is now in effect,
until the termination of any collective
bargaining agreement which may hereafter
become effective between my Employer and
the Union, whichever occurs first.
This authorization shall be irrevocable
after the expiration of the shorter of
the periods above specified for further
successive periods of one year from the
date of expiration of such period or
until the termination of any collective
bargaining agreement which may be
effective during such successive periods,
whichever occurs first. Revocation of
this authorization shall be effective
only if I give written notice of such
revocation to my Employer with a copy to
the Local Union, not more than twenty
(20) days and not less than ten (10)
days prior to the expiration of each
period of one year or of the applicable
collective bargaining agreement be
tween my Employer and the Union, which-
ever occurs first.
FRITO-I.AY 143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Contentions
No contention is raised concerning the validity of the
employees' termination of their union membership. Nor is
issue raised as to their obligation to continue to pay dues to
the Union under the "agency shop." Neither issue being
presented, no opinion is expressed on them.
The General Counsel contends that, under what he
deems to be the Board's interpretation of Section 302(c)(4).
the "escape" or "window" provision of the checkoff autho-
rizations limiting revocations to a period of 10 days shortly
prior to the expiration of 1 year from the anniversary date.
or of an applicable collective-bargaining agreement, which-
ever occurs first, is invalid, and that when the 1973 76 con-
tract expired, the authorizations became revocable at will.
I heref'ore. the contention runs, the Company violated Sec-
ion 8(a)(I) and (3) of the Act by refusing to honor the
revocations after September 3, 1976, and the Union vio-
lated Section 8(b)( 1}(A) and (2) of the Act by causing the
Company to do so.
In addition, the General ounsel contends that, as to
lar Spain. the dues authorization was not binding at all
hecause it does not reflect the date it was signed and/or the
employer to whom it is directed.
The Uinion contends that the employees had a definite
and aited upon means for revoking the authorizations
during the escape or window period, failed to avail them-
selves ol it. and the authorizations were therefore automati-
cally renewed for another year beyond June 9, 1976-the
expiration date of' the 1973 76 contract.
The Company has not filed a brief. Hence its contentions
are limited to the denials in its answer that it committed
unfair labor practices.
E. ('onclusions
Under article 2 of the bargaining contract, and the terms
of the authorizations, the Company is required to deduct
union dues and initiation fees from the wages of employees
who have authorized it, and remit them to the Union.'
The only question presented is the validity of the Compa-
ny's and the Union's actions respecting the proper interpre-
tation of the authorizations; the construction of the con-
tract is not in question, except in one respect which I find
neither relevant nor apt. Thus, the General Counsel urges
that since article 2 of the contract only authorizes the Com-
pany to deduct dues and fees from wages "for so long only
during the period of this Agreement is in effect as such autho-
rization shall remain in force [emphasis supplied]," the au-
thorizations terminated with the expiration of the contract.
I find that contention not sustained. The problem does not
I Sec. 302(c(4) refers specifically to the deduction of "membership dues"
only. However, on May 13, 1948, the U.S. Department of Justice, in re-
sponse to a request from the Solicitor of the U.S. Department of Labor for
an opinion as to the legality under Sec. 302(c) of certain types of checkoff
authorizations, issued an opinion stating, inter alia, that "initiation fees and
assessments, being incidents of membership, should be considered as falling
within the classification of 'membership dues." 22 LRRM 46, 47. That opin-
ion has not, to my knowledge, been challenged since. In including initiation
fees within the deductible sums, art. 2 of the contract, and the authorizations
here, are found to be within the latitude permitted by the statute. No con-
trary contention is raised.
involve construction of the contract, an undertaking to
which the Company and the Union are the primary parties,
but the construction of the authorizations, which are quite
independent agreements to which the contracting parties
are the Company and the employees. Whether the Union
has any interest in the authorizations, such as a third party
beneficiary or an assignor, sufficient to give it a right of
action in their enforcement, need not be determined, and I
express no opinion on it.' While anyone may choose to
waive, or agree not to accept, benefits accruing to him as a
collateral consequence of arrangements between other per-
sons, the substantive rights and obligations of the employ-
ees and the Company created by the contracts between
them cannot be altered by agreements between the Com-
pany and the Union.
The General Counsel's relevant contentions are based on
two apparent premises: (1) that the limited escape or win-
dow period permitting revocation only if notice is given
"not more than 20 and not less than 10 days" prior to the
expiration date is illegal, and (2) as a consequence all revo-
cations became revocable at will upon expiration of the
contract.
The General Counsel cites no relevant authority for that
proposition, though he does cite what I deem to be a distin-
guishable case: N.L. R.B. v. Atlanta Printing Specialties and
Paper Products Union [The Mead Corporation], 523 F.2d
783 (5th Cir. 1975), discussed later. Indeed, the contention
is contrary to the opinion of the U.S. Department of Justice
dated May 13, 1948, referred to .supra. In that opinion the
Department stated that, in its view, an authorization which
declared that it
. . .shall be automatically renewed . . . unless written
notice is given by me to the Employer and the Union
not more than twenty (20) days and not less than ten
(10) days prior to the expiration of each period of one
(I ) year, or of each applicable collective agreement . . .
whichever occurs sooner
is "properly a matter for judicial interpretation," but that
the proposed form "does not appear to be 'irrevocable for a
period of more than one year'," and therefore,
. . . we are of the opinion that the check-off under the
proposed form of authorization would not appear to
constitute a willful violation of subsection (c)(4), and,
further, a case arising under this set of facts should not
be considered an adequate basis for prosecution. [22
LRRM 46, 47]
The escape period provided in the present case appears
to track precisely that described in the Justice Department
opinion and found not to be an adequate cse for prosecu-
tion. Of course, that opinion did state that the problem was
one "properly a matter of judicial interpretation." But un-
less there is authority, either in decisions of the Board or of
the Courts, establishing the invalidity of limited escape pe-
riods under Section 302(c)(4), it would appear to me that
the opinion of the Department of Justice has by this time
' See, for example, the arbitrator's statement in the case of The As.vAiuaed
Press, 199 NLRB 11 10, 112. (1972), a case more fully discussed inroa. to the
effect that a checkoff authorization was "essentially a wage assignment by
the employee in favor of the Union."'
144
In my opinion, the 4 Alanm Printing case therelore stanids,
not for the proposition that upon expiration of a collccti c-
bargaining contract an authorization under Section
302(c)(4) becomes revocable at will. but rather for the prin-
ciple that premature negotiation of a new contract cannot
operate to extend the period of irrevocability beyond the
statutory period.
Seemingly supportive of the view that the conduct of the
Company and the Union here did not deprive the emplo%-
ees of any rights under Section 302(c)(4). is the casc of I/'h
Associated Press, 199 NLRB II10, pet. for reviews denied
492 F.2d 662 (D.C. Cir. 1974).
In that case a collective-bargaining contract between the
Wire Service Guild and the Associated Press was due to
expire on December 31. 1968, but was extended by mutual
consent on a day-to-day basis until about January 4. 1969.
A new tentative agreement was reached on Januar\ 17.
which was ultimately executed on April 25. retroactie to
January 15. During the period when no collective-bargain-
ing agreement was in effect, a number of members of the
Guild attempted to revoke their authorizations for checkoff
of Guild dues from their wages. The authorizations relevant
here,6 in standard form, provided for automatic renewal at
the end of each anniversary period or contract expiration
date, unless written notice of revocation was given to the
Associated Press and the Guild "not more than thirty (3()
days and not less than fifteen (15) days)" prior to the appli-
cable expiration date. For purposes here, that date was the
expiration of the contract. The Associated Press honored
the revocations. over protest by the Guild that the escape
period was December 2 to 16. Ultimately. by Court order.
the issue was submitted to an arbitrator pursuant to a con-
tractual clause. The arbitrator held that the authorizations
permitted revocation in the periods December 2 to 16. and
December 7 to 22, but at no other time, and that the at-
tempted revocations in January were of no effect. (199
NLRB at 1112.)
Both the General Counsel and the Associated Press con-
tended before the Board that the checkoff authorizations
became terminable at will during the contractual hiatus,
thus rendering the arbitration award "patently repugnant
to basic Board law," (199 NLRB at 1112-13.) The Board
thus summed up the arbitrator's decision:
In dealing with AP's argument that during the hi-
atus the revocation requirements of authorization form
A were of no force and effect, thus permitting the in-
volved employees to revoke at any time and in any
manner during that period, the arbitrator, in finding no
merit in AP's contention, reasoned that the checkoff
authorization was essentially a wage assignment by the
consequently unable to file a timely notice of revocation. As the court in the
Murtha case said:
In the instant case, neither of the above fixed dates for revocation being
ascertainable, we are of the opinion that authorizations were, during
said penod. revocable at will, and that the Company subsequently had
no authority to further deduct union dues. ." [42 LRRM 28541
In the instant case, unlike Murtha and unlike Atlanta, the emplosees knew
precisely when the contract was to expire, no changes had been made ill the
expiration dates, and the employees thus had ample opportunity to revoke
their checkoffs during the escape periods
'Other authorizations involved in the case do not bear on the instant
problem.
acquired the status of persuasive interpretation, and that
the authorizations here were therefore automatically re-
newed for another year by the failure of the alleged discrim-
inatees to give notice of revocation between May 20 and
May 30, 1976. Widespread use of the escape requirement
since the issuance of the opinion suggests that it has been
adopted as the law of the market place, and thus not to be
displaced without persuasive reason. If that is so, the Union
did not commit an unfair labor practice by demanding the
resumption of dues payments pursuant to the authoriza-
tions, or the Company by resuming them.
The Board's decision in the case of Atlanta Printing Spe-
cialties, 215 NLRB 237, enfd. 523 F.2d 783 (5th Cir. 1975),
provides no authority for the General Counsel's contention
to the contrary, though the court's decision contains a state-
ment on which the General Counsel relies.
In that case the authorizations provided for a 15-day es-
cape period immediately preceding the anniversary date of
the authorization or the termination date of the collective-
bargaining agreement, whichever occurred first. The bar-
gaining agreement was scheduled to expire on November 1.,
1973. Between October 17 and November 1, 1973, within
the 15-day period, a number of employees gave notice of
revocation of their authorizations. However, in the interim,
on October 13, 1973. the union and employer involved pre-
maturely negotiated another agreement effective October
15. The employer, at the insistence of the union, then re-
fused to honor the revocations. The Board found the ac-
tions of the employer and the union in those respects un-
lawful, on the ground that they had denied the employees
the opportunity, guaranteed by the statute, to terminate the
authorizations at least once yearly. That decision, of course,
is clearly consistent with the purposes and the command of
Section 302(cX4), and is not authority for a finding of viola-
tion here.
The statement of the circuit court in that case, which the
General Counsel deems supportive of his position, is to the
effect that, "the Union concedes that where there is no col-
lective bargaining contract in effect, dues checkoff authori-
zations are revocable at will. See Murtha v. Pet Dairyv Prod-
ucts Co., 44 Tenn. App. 460, 314 S.W. 2d 185 (1975), [42
LRRM 2850]." (Atlanta Printing at 788). I do not interpret
that statement as a declaration by the court that dues
checkoff authorizations are revocable at will in the absence
of a bargaining agreement, for the court's opinion clearly
discloses its understanding that a valid dues assignment
may be made under Section 302(c)(4) in the absence of a
bargaining agreement. The court's words are, in my opin-
ion, a statement of the union's position (and not necessarily
one the court adopted), or in the alternative a declaration
that where proper notice of revocation is given, or cannot
be given because of ambiguity or concealment, the authori-
zation is terminable at will-a conclusion quite support-
able.'
5 This interpretation of the Allanta opinion seems reinforced by the facts
of the Murtha case cited by the court, apparently as authority. There the
employees had signed authorizations providing for a 15-day escape period.
between 60 and 75 days before the contract expired, without specifying any
dates. The contract was then extended indefinitely pending negotiation of a
new agreement. Thus, the employees were unable to determine the termina-
tion date of the old agreement, or the dates of the escape penod, and were
FRITO-I.AY 145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee in favor of the Union which existed apart
from the collective-bargaining agreement and therefore
"survived the expiration of the contract and the em-
ployees were bound by its terms as was the emloyer."
In this regard, the arbitrator further explained that,
while termination of the contract, if sooner than a year
from the annual revocation date, affords an employee
the opportunity to revoke in less than a year, the
checkoff by its terms lawfully required that this oppor-
tunity be exercised during the specified 15-day period
befiore contract expiration. Finally, the arbitrator
found that Section 302(c)(4) of the Act only requires
that the checkoff be revocable at least once a year, and
that one such time may be measured by the contract's
expiration date, if sooner than the annual revocation
date; however, the arbitrator held that the statute does
not require that the authorization cease upon contract
termination.
To the extent relevant here, the Board found the arbitra-
tor's award in Associated Press met the standards set forth
in Spielberg Manufacturing Company, 112 NLRB 1080
(1955), for recognition of an arbitrator's award as disposi-
tive of an issue before the Board, and therefore dismissed
the complaint in that respect.
Thus, the Board appears to have specifically rejected the
argument that during a contractual hiatus an employee
may terminate his checkoff at will. While the Board's ac-
ceptance of an arbitrator's apparently reasonable findings
of fact may not necessarily indicate that the Board would
have found the same way as a matter of first impression, an
arbitrator's legal premises "patently repugnant to basic
Board law", are not acceptable under Spielberg principles,
and must consequently be rejected. The Board found the
arbitrator's award in Associated Press "not clearly repug-
nant to the purposes and policies of the Act." (199 NLRB
at 1114) It must therefore be said, as a minimum, that the
Associated Press case stands for the proposition that it is
compatible with the Act to hold as a matter of law, () that
checkoff authorizations otherwise valid do not automati-
cally become terminable at the will of the employee during
a hiatus between collective-bargaining contracts, (2) that
escape periods of limited and reasonable duration are au-
thorized by Section 302(c)(4), and (3) that enforcement of
authorizations otherwise valid, in circumstances compatible
with those principles, is not an unfair labor practice.
In the instant case the escape period, identical with that
approved by the Department of Justice in 1948, is limited
and reasonable, and the alleged discriminatees failed to
avail themselves of the opportunity to revoke the authoriza-
tions during the escape period. The authorizations were
therefore renewed according to their terms for the appropri-
ate statutory period.
On balance, then, I conclude that the General Counsel's
contentions are not sustained. Decisions cited by the Gen-
eral Counsel dealing with requirements for maintenance of
union membership or their application are inapposite to the
present problem. No question of maintenance of such mem-
bership, or of compliance with the agency shop requirement
of the contracts, is raised by the pleadings; the issues re-
volve solely around rights and obligations arising from dues
checkoff authorizations under Section 302(c)(4). A dues
checkoff clause is not a union-security device. Shen-Mar
Food Products, Inc., 221 NLRB 1329, 557 F.2d 396 (4th Cir.
1977); N.L.R.B. v. Atlanta Printing Specialties, supra at
786 787. There was no contractual requirement for union
membership as a condition of employment. Hence, authori-
ties dealing with such requirements, or other union security,
disciplinary, or union activity problems, are inapplicable.
Additional theory as to Spain
Concerning employee Mary Spain, the General C('ounsel
argues that because her checkoff authorization does not
bear on its face a date of execution or the name of an
employer, it is in essence a nullity, since no period of expi-
ration can be deduced from it, and no employer named to
whom it can be presented to be honored.
However, the stipulation establishes the date Spain
signed the authorization as about July 24, 1964. and satis-
factorily permits the inference that the Company was the
intended employer.
Thus, Spain and the other five alleged discriminatees
signed and delivered to the Company and to the Union the
July 27, 1976, statement terminating their membership in
the Union, and declaring that they no longer authorized the
withdrawal of union dues from their paychecks. In these
circumstances, I believe it can be safely concluded that the
intended employer in Spain's authorization was the Com-
pany, that the authorization was given to the Company as
authority for the deduction of Spain's dues from her wages,
that it has continuously been used for that purpose except
for the hiatus period in August and September 1976, and
that there is no evidence or claim that the intended em-
ployer is anyone other than the Company. I therefore find
that Spain's authorization complies with the requirements
of the statute. What the result would be if the evidence did
not disclose the date the document was executed, or left in
doubt the name of the employer, need not be determined.'
On the basis of the facts adduced I find no part of the
complaint sustained by the evidence.
Upon the foregoing finding of fact and conclusions, I
hereby issue the following recommended:
ORDER8
I recommend that the complaint be dismissed in the en-
tirety.
' It may be noted that a somewhat similar contention as to the dates of
authorizations, made in N.L.RB. v. Atlanta Printing Specialties 523 F.2d
783. 785. was termed "immaterial" by the court of appeals. which said:
It is immaterial that the original execution date of each authorization
is unknown, since all were renewed at least once yearly, and had there-
fore either been executed or renewed during the 1970 73 collective bar-
gaining agreement. The legal consequences of renewal are exactly the
same as execution of a new authorization. . .Therefore. since the
authorizations, of which the revocation provision is a subsidiary part,
were executed or renewed during the 1973 collective bargaining agree-
ment, that agreement is the "applicable" one whose expiration date
provides an escape period for revocations.
A similar conclusion may thus be applicable here.
' In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
146