Furr's, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1982

264 N.L.R.B. 554 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furr's, Inc. and Retail Clerks Union, Local 368, af-
filiated with Retail Clerks International Union,
AFL-CIO. Cases 16-CA-8499 and 16-CA-
8360
September 30, 1982
DECISION AND ORDER
Upon charges duly filed in Case 16-CA-8360 on
March 1, 1979, and in Case 16-CA-8499 on May
18, 1979, and an amendment thereof on May 29,
1979, by Retail Clerks Union, Local 368, affiliated
with Retail Clerks International Union, AFL-CIO
(the Charging Party or the Union), the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 16, issued a con-
solidated complaint and notice of hearing, dated
June 7, 1979, against Furr's, Inc. (herein called Re-
spondent). The complaint alleges that by refusing
to check off the union dues of certain employees
pursuant to a valid checkoff authorization, and to
remit said dues to the Union pursuant to the par-
ties' collective-bargaining agreement, Respondent
had engaged in, and is engaging in, certain unfair
labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge and complaint and
notice of hearing were duly served on the parties.
Respondent filed an answer to the complaint deny-
ing the commission of unfair labor practices and re-
questing that the Board defer to two recent arbitra-
tion decisions interpreting the provisions of the col-
lective-bargaining agreement applicable here. On
July 6 and 9, 1979, the parties executed a stipula-
tion of facts in which the parties waived a hearing
before an administrative law judge and the issuance
of an administrative law judge's decision, and
agreed to submit the case to the Board for findings
of fact, conclusions of law, and an order, based on
a record consisting of the stipulation and the exhib-
its attached thereto. On September 26, 1979, the
Board issued an order approving the stipulation
and transferring the proceeding to the Board.
Thereafter, the General Counsel, Respondent, and
the Charging Party filed briefs in support of their
positions.
On the basis of the stipulation, the briefs, and the
entire record in this case, the Board makes the fol-
lowing:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Texas corporation, with its princi-
pal office in Lubbock, Texas, is engaged in operat-
ing retail grocery stores in Texas and New Mexico.
264 NLRB No. 77
During the past 12 months, which period is repre-
sentative of all times material herein, Respondent
purchased and received directly from suppliers lo-
cated outside Texas goods valued in excess of
$50,000, and during the same period Respondent's
dollar volume of business exceeded $500,000.
Respondent admits, and we find, that it is, and at
all times material herein has been, an employer as
defined in Section 2(2) of the Act, engaged in com-
merce and operations affecting commerce as de-
fined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Prior to November 4, 1976, a majority of the em-
ployees of Respondent, in the unit described below,
designated the Union as their representative for the
purposes of collective bargaining:
All full time and part-time employees working
for Respondent in stores located in Amarillo,
Texas; excluding managers, assistant managers,
second assistant managers, meat department
employees, watchmen, guards and supervisors
as defined in the Act.
From April 3, 1978; and continuing to date, the
Union has been the exclusive representative of the
employees in the unit described above. On July 31,
1978, the Union and Respondent entered into a col-
lective-bargaining agreement which by its terms
was effective from April 3, 1978, to April 4, 1981.
The preceding contract was effective from Septem-
ber 29, 1976, to April 2, 1978. Both agreements in-
cluded provisions for authorization of dues check-
off directly from an employee's paycheck, with all
collected sums being remitted directly to the
Union. Specifically, article 2, section B, reads:
B. Check Off. The Employer agrees to a
check-off of Union membership dues, consist-
ing of monthly dues, initiation fees, and uni-
form assessments for all Union members cov-
ered by this agreement, provided the Union
delivers to the Employer a written authoriza-
tion signed by the employee irrevocable for
one (1) year or the expiration of this agree-
ment, whichever occurs sooner.
The checkoff authorization forms provided by
the Union stated that:
[t]his authorization may be revoked on any an-
niversary date of this authorization or on the
554
FURR'S, INC.
expiration date of any collective bargaining
agreement between the Company and the
Union, by written notice to the Company and
the Union not more than fifteen (15) days or
less than ten (10) days prior to such anniversa-
ry date or such expiration date.
Prior to the immediate controversy, Respondent
and the Union had submitted to an arbitrator the
issue of whether the aforedescribed checkoff au-
thorization forms conflicted with article 2, section
B, and article 19 of the contract. Article 19 states:
The Employer agrees not to enter into any
agreement or contract with his employees, in-
dividually or collectively, which in any way
conflicts with the terms and provisions of this
Agreement.
Pursuant to the 1976-78 contract, employees
Frank Boyett, Greg Morrison, Vincent Simon, and
Pete Zamaro, Jr., had requested Respondent to
cancel their dues-checkoff authorizations, and Re-
spondent had honored their requests. The Union
protested Respondent's action, contending that
since the revocation requests did not fall within the
time periods prescribed in the checkoff authoriza-
tion form, Respondent was not at liberty to honor
those requests. The issue eventually came to a
hearing before Arbitrator Russell Neas, on June 30,
1978. Subsequent to the hearing, but prior to the is-
suance of the award, Respondent and the Union
entered into negotiations toward their current
1978-81 contract. Neither party, however, pro-
posed amendments or revisions to article 2, section
B, or article 19, since each believed that the pend-
ing arbitration award would vindicate its position.
On July 19, 1978, the arbitrator issued his decision
and award in favor of Respondent. On November
6, 1978, Respondent and the Union appeared before
Arbitrator Harold Leeper on the identical issue,
this time with respect to the revocation request of
employee Dwight Bishop. On December 12, 1978,
Arbitrator Leeper issued his opinion and award in
favor of Respondent, affirming, in all aspects, Neas'
earlier decision.
Arbitrator Neas concluded in his decision that
the absence of any contractual language evidencing
an intent to incorporate by reference administrative
machinery governing revocation of checkoff au-
thorization indicated that the parties desired that
matters pertaining to checkoff be controlled exclu-
sively by the comprehensive and unambiguous
terms of article 2, section B; those terms do not
define any escape period limitations on checkoff re-
vocability; and the escape period provisions in the
authorization forms consequently conflicted with
article 2, section B, and with article 19 of the con-
tract. Arbitrator Leeper, in his subsequent decision,
reached the same conclusions.
Between July 18, 1978, and April 23, 1979, the
following employees submitted requests for discon-
tinuance of dues checkoff: Greg Baldwin, Linda
Barnes, Edna Cameron, Joe Fenner, Sherrie Lynn
Huskins, Donald Podzemny, Julie Poirot, and
Andy Seals. Respondent honored these requests
and eliminated dues deductions from their pay-
checks. On or about February 15, 1979, the Union
protested Respondent's honoring the withdrawal
requests of Baldwin, Fenner, Hunter, Poirot, Pod-
zemny, and Seals. By letter dated February 20,
1979, Respondent acknowledged the Union's pro-
test, but stated that its actions were properly predi-
cated on the contract and the arbitration decisions.
B. Contentions of the Parties
The General Counsel contends that the two arbi-
tration awards are repugnant to the purposes and
policies of the Act and thus deferral under Spiel-
berg Manufacturing Company, 112 NLRB 1080
(1955), is inappropriate. In support of this conten-
tion he relies on the Board's decision in Shen-Mar
Food Products, Inc., 221 NLRB 1329, 1330 (1975),
enfd. 557 F.2d 396 (4th Cir. 1977). The General
Counsel argues that the fundamental weakness in
the two arbitration opinions is that the arbitrators
drew an improper inference from the absence of
specific contractual language regarding implemen-
tation of revocation of checkoff or the failure of
the agreement to refer to external administrative
machinery to govern revocation. The General
Counsel asserts that the arbitrators erroneously
construed this silence to be a waiver by the Union
of its right to administer revocation of checkoff ac-
cording to the terms appearing on the face of the
authorization form. Citing Shen-Mar, the General
Counsel argues that waiver cannot be inferred,
absent specific contract language or bargaining his-
tory demonstrating an intent to waive. To hold
otherwise would permit Respondent unilaterally to
determine the procedure governing revocation, a
result the Union clearly did not intend. The Gener-
al Counsel noted that the court, in enforcing the
Board's Order in Shen-Mar, stated that "[t]he au-
thorization card is the primary requisite to the va-
lidity of any arrangement under the statute and the
Board's conclusion that the authorization card and
Article II of the agreement should be read together
is consonant with the statutory pattern."' Accord-
ingly, the General Counsel argues, since Respond-
ent honored revocation requests that did not com-
port with the revocation provisions set forth in the
I ,L.R. RB Shen-Mar Food Products. Inc., 557 F. 2d at 399
555
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorization form, it unilaterally altered its con-
tractual obligation to the Union in violation of Sec-
tion 8(a)(5) and (1) of the Act. For virtually the
same reasons articulated by the General Counsel,
the Union contends that Respondent's conduct
constitutes clear violations of Section 8(a)(5) of the
Act.
Respondent, on the other hand, contends that the
arbitration decisions fully comport with Board law
and that the reasoning and conclusions embodied in
those opinions should be adopted by the Board. It
asserts that the arbitration proceedings were fair
and regular, were attended by the parties, and the
resulting awards were consonant with prior Board
decisions. Thus, as the arbitrations fully comply
with Spielberg standards, the Board should defer to
the awards and dismiss the complaint. Substantive-
ly, Respondent argues that the contractual provi-
sions involved in the current controversy are clear,
and, in accordance with the recent arbitration deci-
sions, should be accorded their plain meaning. Arti-
cle 2, section B, mirroring the language of Section
302(c)(4) of the Act, Respondent says, sets forth
the conditions under which an employee can au-
thorize Respondent to deduct dues from his/her
paycheck and remit that amount directly to the
Union. Article 19 provides that Respondent will
not enter into any agreement with its employees
which will conflict with the terms of the collec-
tive-bargaining agreement. As the agreement to
deduct dues is an agreement between employer and
employee, any provision contained in the checkoff
authorization which contravenes article 2, section
B, would be void under article 19. Thus, Respond-
ent argues that since the limited escape period set
forth on the authorization form is without a con-
tractual predicate, that provision is without effect.
Therefore, as its conduct is clearly in accord with
its contractual obligations, Respondent argues that
the Union's contentions are without merit. Re-
spondent further argues that the General Counsel's
and Charging Party's reliance on Shen-Mar, supra,
is misplaced, since the cases are factually distin-
guishable. Thus, contrary to the instant contract,
the agreement in Shen-Mar, supra, did not contain
statutory checkoff language and therefore it was in-
cumbent upon the parties to look to the authoriza-
tion form to set the minimum parameters regarding
the parties obligations with respect to checkoff, in-
cluding revocation. As the instant agreement pro-
vides the legal requirements for checkoff and revo-
cation, recourse to an external document, i.e., the
authorization card, is unnecessary.
Analysis and Conclusions
Under Spielberg, supra, the Board will defer to an
arbitrator's decision where (1) the proceedings
appear to have been fair and regular; (2) all parties
have agreed to be bound by the arbitrator's deci-
sion; and (3) the arbitrator's decision is not "clearly
repugnant" to the Act. Here, the General Counsel
and the Union contend that the decisions are re-
pugnant, apparently conceding that the other crite-
ria have been met. In any event, it is clear that the
proceedings were fair and regular and that the par-
ties, the Union and Respondent, agreed to be
bound by the arbitrator's decision. Of course, the
two awards did not involve the employees who are
named in this proceeding as having requested Re-
spondent to terminate their checkoff authorizations.
However, deferral is appropriate in the instant case
since the prior arbitrations involved the same con-
tractual question relevant to the employees here,
and, in this instance, the interests of these employ-
ees were adequately represented by the Company
which argued the same position to the arbitrators
as that taken by the employees now. Under these
circumstances, "we find no serious procedural infir-
mities in the arbitration proceedings which warrant
disregarding the arbitrator's award." 2
In addition, we find that the awards are not
clearly repugnant to the purposes and policies of
the Act. The Act itself requires only, in Section
302(c)(4), that employees be accorded an opportu-
nity to revoke their checkoff authorizations at least
once a year and at the termination of any applica-
ble collective-bargaining agreements.3 Beyond that,
it is well-established Board law that disputes about
checkoff procedures essentially involve contract in-
terpretations rather than interpretation and applica-
tion of the Act.4 Furthermore, the Board has spe-
cifically recognized that such contract issues are
fully capable of resolution through arbitration.5
The arbitrators here have found that the parties
clearly contemplated implementation of dues-
checkoff procedures and so unambiguously pro-
vided in article 2, section B, of the contract that
Respondent will honor authorizations that are ir-
revocable for 1 year or at the expiration of the col-
lective-bargaining agreement, whichever event
occurs first. The contract contains no other provi-
sion governing revocation of an employee's check-
off authorization, nor is there any reference to an
extra-contractual procedure to cover such an oc-
2 International Harvester Company, 138 NLRB 923, 928 (1962).
3 E.g., Frito-Lay, Inc., 243 NLRB 137 (1978).
4Frito-Lay. Inc.. supra; International Chemical Workers Union. Local
143, AFL-CIO (Lederle Laboratories, Division of American Cyanamid
Company), 188 NLRB 705, 707 (1971).
6 The Associated Press, 199 NLRB 1110, 1114 (1972).
556
FURR'S, INC.
currence. In addition, under article 19 of the con-
tract Respondent is prohibited from entering into
any agreement that would conflict with the con-
tract. Having determined that the parties intended
that their contract set forth only the initial period
barring dues-checkoff revocation, and since the
parties' rights and obligations with respect to that
subject are defined by collective bargaining, the ar-
bitrators decided that the presence of a more re-
strictive unilaterally devised revocation procedure
in the authorization contract conflicted with the
controlling bargaining agreement provisions and
was thus unenforceable. Accordingly, the arbitra-
tors concluded that Respondent had no contractual
obligation to honor the procedures outlined in the
authorization form.
Whether the Board would have made the same
interpretation of the contract on de novo review of
the facts is immaterial here. Before deferring under
Spielberg, we need only be satisfied that the arbitra-
tors' interpretations were not clearly wrong as a
matter of law. The General Counsel argues that
legal principles set forth in Shen-Mar mandate a
contrary interpretation of the contract here. We
disagree.
The General Counsel, as noted, argues that the
Board's decision in Shen-Mar, supra, is dispositive
of the case at bar. We disagree. In Shen-Mar the
parties negotiated a collective-bargaining agree-
ment which included, in pertinent part, the follow-
ing provisions regarding checkoff:
Section 1. The Company agrees to checkoff
from the pay of its employees, who are mem-
bers of the Union, the regular monthly dues
and initiation fees and to pay such monies col-
lected to the proper officers of the Union.
Section 2. The Union agrees to furnish to
the Company, individual dues deduction au-
thorization slips voluntarily signed by its em-
ployees for the purpose of this checkoff.
Section 3. The Union will indemnify and
save harmless the Company from any and all
claims and disputes by reason of the Compa-
ny's acting in reliance upon the voluntary as-
signments furnished it.
The checkoff authorization form, aside from
tracking the statutory language in Section
302(c)(4), 6 provided that the authorization would
6 Sec. 302 of the Act, in pertinent part, prohibits the payment of
money by an employer to a labor organization, with certain exceptions.
Among the exceptions is Sec 302(cX
4
) which permits 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 irrevocable for a period of more than one year, or
beyond the termination date of the applicable collective agreement,
whichever occurs sooner ....
be automatically renewed unless written notice by
registered mail was received by the employer and
the union between the 10th and 20th day prior to
the anniversary date of the execution of the author-
ization or the termination of the applicable agree-
ment. In finding that the employer violated Section
8(a)(5) by honoring untimely requests for revoca-
tion, the Board found that the contract clause
"clearly incorporate(d) by reference the voluntary
checkoff authorizations" and thus the employer
was obligated to comply with the revocation pro-
cedures contained therein. An alternative conclu-
sion, under the circumstances of that case, would
have vested in respondent the unilateral right to
determine checkoff revocation procedures.
In contrast to the contract as interpreted by the
Board in Shen-Mar, the contract as interpreted by
the arbitrators herein provides comprehensively for
checkoff procedures and fully sets forth the parties'
attendant obligations. The arbitrators consequently
perceived no need for reference to authorization
forms for clarification of the parties' unambiguous
contractual commitments. Contrary to the General
Counsel's assertion, the arbitrators did not affirm
Respondent's unilateral right to determine when it
would accept dues revocations. They merely de-
fined the revocation procedures for which Re-
spondent and the Union had knowingly bargained
and were thereafter mutually bound to honor. For
purposes of our Spielberg analysis, we are satisfied
that the Board clearly did not hold in Shen-Mar,
nor has it held elsewhere, that either the contract
interpretation made by the arbitrators or the revo-
cation procedure upon which they found the par-
ties to have agreed would be repugnant to the
Act. 7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER FANNING, concurring:
I concur with my colleagues in dismissing the
8(a)(5) allegations herein, although I do so for
somewhat different reasons. The facts are relatively
7Our dissenting colleague views our decision herein as an affirmation
of an arbitral finding that the Union has waived its right to participate in
collective-bargaining for the determination of dues revocation proce-
dures. We emphasize that no such finding of waiver is at issue. The arbi-
trators have defined a negotiated bilateral agreement which by itself con-
tains sufficient and clear terms intended to be exclusively controlling
with respect to both dues checkoff and revocation Consequently, the ar-
bitrators found that Respondent was not bound to honor further restric-
tions on dues revocation unilaterally imposed by the Union in extra-con-
tractual dues authorization forms.
557
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
straightforward. Briefly, Respondent-Employer
pursuant to its interpretation of the parties then
current 1976-78 contract honored certain employ-
ees' requests to revoke their dues-checkoff authori-
zations. The Union grieved and the matter eventu-
ally proceeded to arbitration. The arbitrator issued
a written award upholding the Employer's action
and interpretation of the contract. Thereafter, the
parties signed their 1978-81 contract, which, in
pertinent part, retained the identical language. The
same question was again presented for arbitration
after the Employer honored the request of employ-
ee Bishop to discontinue his dues checkoff. The
second arbitrator also issued an award upholding
the Employer's actions as consistent with the par-
ties' collective-bargaining agreement. When Re-
spondent thereafter similarly honored revocation
requests submitted by other employees, the Union
by letter of February 15, 1979, protested Respond-
ent's action and advised that it was referring the
matter to its attorney for arbitration. By letter
dated February 20, 1979, Respondent acknowl-
edged the Union's protest but iterated that its
action was taken under what it considered to be
the proper interpretation of the parties agreement,
which had "been supported by two recent and con-
secutive arbitrations." Thereafter, the Union filed
the charges herein.
Counsel for the General Counsel argues that the
Union, having twice attempted unsuccessfully to
resolve the matter to its liking through the parties'
agreed-upon grievance-arbitration procedures in
both the present and previous contracts, felt com-
pelled to file the instant charges. When the Compa-
ny refused to alter its stance and "recognize the
propriety" of the Union's position, choosing instead
to adhere to its own steadily maintained position,
urges the General Counsel, it thus violated Section
8(a)(5). I do not agree.
In my view, the action taken by Respondent in
full consonance with its own interpretation of the
contract, and the arbitrators' awards delineating the
meaning of the clause at issue does not, in the cir-
cumstances herein, constitute a violation of Section
8(a)(5). This does not mean that I necessarily
concur with the arbitrators' interpretations and
conclusions. Indeed, in most instances, I believe the
better policy is that enunciated in our decision in
Shen-Mar Food Products, Inc., 221 NLRB 1329
(1976). In that case, we found, as a factual matter,
that the checkoff authorization cards were clearly
incorporated into the collective-bargaining agree-
ment between the union and respondent. We fur-
ther indicated that sound labor policy warrants
drawing such an inference in the absence either of
contract language to the contrary, or a history of
negotiations to the latter effect. But the ultimate
issue is the correct interpretation of the clause,
what it is to which the parties agreed. More par-
ticularly whether or not Respondent agreed to the
Union's interpretation. If it had not, it did not vio-
late the Act.
When the parties signed their 1978-81 agreement
the question of the applicable contract clause's in-
terpretation had already been disputed, and an
answer provided through the parties' arbitration
procedure which vindicated Respondent. Whether
this Board would have reached a similar conclu-
sion in the first instance is not in my view disposi-
tive here. There is no indication Respondent in the
1978-81 contract reversed its position and acqui-
esced in the view urged by the Union. Indeed, the
very fact that the construction of the contract pre-
viously urged by Respondent had already been sus-
tained in the parties arbitration of the issue became
in itself a part of the parties' understanding of the
substance of their agreement, and a constituent ele-
ment in their bargaining history. This is unlike the
situation in Shen-Mar where respondent predicated
its new action on its contention that the State's
right-to-work law precluded it from deducting dues
of employees who terminated membership in the
union. Rather, Respondent here has acted consist-
ently in accord with an interpretation of the con-
tract supported by the bargaining history. There
has been no showing that when Respondent en-
tered into the second contract, the one at issue
here, fresh from its arbitration victory, it altered its
position and acceded to the union view. If it did
not agree to the union position, of course, its fail-
ure to adhere to the Union's view later was not un-
lawful. In these circumstances, I concur with my
colleagues in dismissing the complaint herein.
MEMBER JENKINS, dissenting:
I cannot agree with my colleagues that here the
Board should defer to the arbitrators' award under
the principles enunciated in Spielberg Manufactur-
ing Company, 112 NLRB 1080 (1955). Instead, I
agree with the General Counsel's contentions that
the Board's decision in Shen-Mar Food Products,
Inc., 221 NLRB 1329 (1976), is controlling here
and that the arbitrators' awards are plainly and
wholly at odds with that precedent. In addition, I
believe that consideration by the Board of the case
on its merits would compel a finding that Respond-
ent violated Section 8(a)(5) and (1) of the Act by
honoring employees' requests for revocation of
dues checkoff which were untimely under the
terms of the authorization cards.
The contract here provides that the Employer
agrees to a checkoff of union membership dues
558
FURR'S, INC.
"provided the Union delivers to the Employer a
written authorization signed by the employee irrev-
ocable for one (1) year or the expiration of the
contract, whichever occurs sooner." The scope of
the provision is clear: it provides for dues checkoff
in conformity with the statute,8 but it is silent with
respect to specific revocation procedures.
My colleagues find that the contract on its face
is silent with respect to any specific limitation on
dues other than that dues checkoff be in conform-
ity with the statute. Implicitly, they recognize, as
the arbitrators found, that the contract contains no
procedure governing the initiation, execution,
transmission, notification, or administration of an
employee's revocation request. Had the Union in-
tended to surrender to Respondent the right unilat-
erally to cease dues deductions such provision
could have been set forth in the contract. Absent
any such provision, my colleagues nevertheless
have adopted the arbitrators' treatment of contrac-
tual silence as a union waiver of any right to ad-
minister the checkoff procedures as set forth on the
face of the authorization form.9
This finding by my colleagues is wholly at odds
with the Board's decision in Shen-Mar. There, the
Board held that it will not infer that a union sur-
rendered to an employer the right unilaterally to
cease dues deductions, despite the existence of
valid voluntary dues authorizations, "in the absence
of unambiguous contract language to that effect or
a history of negotiations demonstrating that fact."
My colleagues fail to specify any unambiguous
contract language granting such a waiver. They
also fail to point to any history of negotiations
demonstrating a waiver. This failure to describe
such evidence is understandable. There is no such
language in the contract. There is no such evidence
in the factual stipulation. 10
s Sec. 302 of the Act, in pertinent part, prohibits the payment of
money by an employer to a labor organization, with certain exceptions.
Among the exceptions is Sec. 302(cX4) which permits 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 irrevocable for a period of more than one year, or
beyond the termination date of the applicable collective agreement,
whichever occurs sooner ...
9 In finding that Respondent had no contractual obligation to honor
the procedures outlined in the authorization form, both arbitrators relied
on the lack of any contractual language in art. 2, setting forth rules gov-
erning the administration of checkoff procedures. Thus, the arbitrators
treated this contractual silence as a union waiver of any right to adminis-
ter the checkoff procedure as set forth on the face of the authorization
form.
i' Although my colleagues contend that "no such finding of waiver is
at issue" here, they also state that "The arbitrators (rather than the par-
ties] have defined a negotiated bilateral agreement . . . exclusively con-
trolling . .. revocation " But the arbitrators specifically found that the
"contract contains no procedure governing initiation, execution, transmis-
sion, notification, or administration of an employee's revocation request."
Thus, it was from contractual silence that the arbitrators decided that the
My colleagues also rely on the inclusion of arti-
cle 19 in the contract to support their finding that
the parties intended the contract be silent with re-
spect to specific revocation procedures. Article 19
merely provides, however, that the "employer
agrees not to enter into an agreement or contract
with the employees . . . which in any way con-
flicts with the terms and provisions of this agree-
ment." Although my colleagues concede that the
contract covers only the initial period of irrevoca-
bility in accord with the Act, they nevertheless
find that the provisions of the authorization must
be deemed to be in conflict with the contract. But
it is readily apparent that the conflict between the
authorization and the contract arises from a "con-
tractual term" inferred from contractual silence by
my colleagues, directly contrary to the Board's de-
cision in Shen-Mar. " Hence, I dissent from my
colleagues' deferral to the arbitrators' awards that
are plainly and wholly at odds with Board prece-
dent.
On the merits, I find no basis on the record here
for reaching a result different from Shen-Mar.
Indeed, in all respects critical to the allegations
before us, the cases are similar.' 2 Thus, the con-
tracts in neither case contain procedures governing
an employee's revocation request. Both contracts,
however, refer to the union's providing to the em-
parties must have intended that Respondent v as not bound to honor the
dues revocation procedures set forth on the authorization form. This find-
ing is, however, wholly at odds with the Board's decision in Shen-.Mar, as
discussed elsewhere in this Decisiol, including fn 12. infra.
I also disagree with my colleague's concurring opinion that a different
result obtains here, as opposed to Shen-Mar, because Respondent's inter-
pretation or the contract is supported by the bargaining history; i.e., the
arbitration decisions Although this view has certain superficial appeal,
the fact remains that contractual silence is being used to show that Re-
spondent was not bound to honor the dues revocation procedure set
forth on the authorization form. Thus, if both parties had agreed with the
arbitrator's decisions, as obviously they have not from the existence of
this proceeding, they could have incorporated the agreement in the new
contract Clearly, they neither agreed nor changed the contract Indeed.
the stipulated record here is silent on this matter
"1 An effect of my colleagues' opinion is that an "irrevocable for I
year" checkoff authorization becomes revocable at will despite the fact
that neither the contract nor the authorization form provides for such an
open-ended escape period.
12 In Shen-Mar, the Board held in part:
Article 11, section 2, of the contract requires the Union to furnish
the Respondent with the "individual dues authorization slips" which
obviously refer to the authorization cards submitted to Respondent.
Respondent therefore knew that the attempted revocations were un-
timely. We cannot conclude that these individual dues authorization
slips, referred to in the contract, are contracts separately arrived at
between the Union and the employees involved. and have no bearing
on Respondent's contractual duty. Indeed, that construction is tanta-
mount to saying that the Union surrendered to Respondent the right
to unilaterally cease dues deductions, despite the existence of valid
voluntary dues authorizations Such an intent is so contrary to labor
relations experience that it should not be inferred in the absence of
unambiguous contract language to that effect or a history of negotia-
tions demonstrating that fact 2 Neither exists in the instant case
2 See C & C Plynood Corporation, 148 NLRB 414 (1964), enfd 385
US 421 (1967)
559
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer an authorization signed by the employee.13
'a As my colleagues state, the Board found in Shen-Mar that the em-
ployer violated Sec. 8(aX5) by honoring untimely requests for revocation
where the contract clause clearly incorporated by reference the volun-
tary checkoff authorizations and thus the employer was obligated to
comply with the revocation procedures contained therein.
The contract here similarly provides that the Union deliver to the Em-
ployer a written authorization signed by the employee. In the absence of
not only a contractual provision governing revocation procedures but
also unambiguous contract language or a history of negotiations demon-
strating that the Union had waived any right to administer the checkoff
procedures as set forth in the authorization, I see no reason for finding
there that Respondent was not obligated to comply with the valid volun-
tary revocation procedures contained in the authorizations signed by the
employees. To find otherwise would be to give Respondent the unilateral
right to determine checkoff revocation procedures, which my colleagues
recognize would have been an "alternative conclusion" in Shen-Mar.
I note that the Fourth Circuit, in enforcing the Board's Order in Shen-
Mar, stated that "It]he employee's authorization card is the primary req-
uisite to the validity of any arrangement under the statute, and the
Board's conclusion that the authorization card and Article II of the
agreement should be read together is consonant with the statutory pat-
tern." N.L.R.B. v. Shen-Mar Food Products, Inc.. 557 F.2d 396 (1977).
Similarly, both authorizations track Section 302 of
the Act and include valid voluntary revocation
procedures.1 4 The only difference in the two con-
tracts for the purposes of the allegations here is
that the instant contract, but not in Shen-Mar, pro-
vides on the face of the contract for the initial
period of irrevocability of dues checkoff in con-
formity with the statute. This difference in contrac-
tual language does not justify a different result,
however, because the statutory language is not at
odds with the terms of the authorization. Thus, I
would find that Respondent violated Section
8(a)(5) and (1) by honoring employees' requests for
revocation of dues checkoff which were untimely
under the terms of the authorization cards.
14 There is no dispute that the escape periods and revocation proce-
dures on the face of the authorizations are valid.
560