Gulf-Wandes Corp.

National Labor Relations Board - Board Decisions

Jun 9, 1978

236 N.L.R.B. 810 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gulf-Wandes Corporation and Oil, Chemical and
Atomic Workers International Union. Case 15-CA-
6465
June 9, 1978
DECISION AND ORDER
BY MEMBERS JENKINS. PENELLO. AND MURPHY
On January 30, 1978, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed an
answering brief.
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.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge but
only to the extent consistent herewith.
Respondent, in its exceptions to the Decision of
the Administrative law Judge recommending that
an 8(a)(5) violation of the Act be found arising from
Respondent's refusal to remit dues to Oil, Chemical
and Atomic Workers International Union, AFL-
CIO, Local 4-620, contends that there was no con-
tractual obligation to make these assignments and
that the complaint should be dismissed in its entirety.
Our review of the record and credited testimony con-
vinces us that Respondent's exceptions have merit.
Respondent is engaged in the business of fabricat-
ing and distributing plastic materials at its principal
place of business in Baton Rouge, Louisiana. On
April 19, 1976, the Oil. Chemical and Atomic Work-
ers International Union, AFL-CIO (referred to as
the International), was certified as the collective-bar-
gaining representative of the employees in a unit con-
sisting of:
All production, maintenance, and warehouse
employees and truck drivers employed by Re-
spondent at its 8325 South Choctaw Drive, Ba-
ton Rouge, Louisiana, plant; excluding all office
clerical employees, professional employees,
salesmen, guards and supervisors as defined in
the Act.
Formal negotiations for a collective-bargaining
agreement commenced on or about July 1976, and a
contract retroactive to December 16, 1976. was exe-
cuted on January 27, 1977. During the course of ne-
gotiations, the International unsuccessfully sought
recognition for both the International and the Local
Union ' as the joint bargaining representatives of the
employees. When this proposal was resisted by Re-
spondent, the International dropped this request.
The recognition provision of the collective-bargain-
ing agreement reads:
This collective Bargaining Agreement (hereinaf-
ter referred to as the "Agreement") hereby is en-
tered into as of December 16, 1976, by and
between GULF-WANDES CORPORATION (the "Em-
ployer") and OIL CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION (the "Union") with the
parties agreeing as follows:
ARTICLE I RECOGNITION
Union
1.00 The Employer recognizes the Union as
the sole and exclusive representative, for pur-
poses of collective-bargaining with respect to
rates of pay, wages, hours and other terms and
conditions of employment of all employees in
the bargaining unit specifically described in this
Agreement.
International Representative James A. Riley testi-
fied that, on or about October 14, 1976, during a
recess in the negotiations, he approached Thomas
Beckley, Respondent's attorney, and informed him
that no agreement on the contract could be reached
unless the International was granted a dues checkoff.
Beckley replied that this was not a problem since
dues checkoff was one of the items Resondent was
going to agree to. After bargaining resumed, Riley
immediately brought up the subject of dues checkoff
and J. D. Atkinson, president of Gulf-Wandes,
agreed to the inclusion of a checkoff provision in the
contract. Riley then inquired whether Respondent
was agreeable to using the dues-checkoff authoriza-
tion forms currently being used in the area by the
Local. According to Riley's testimony, Beckley re-
plied in the affirmative but asked if Riley had a copy
of the dues-checkoff authorization form. Riley testi-
fied that he did not have a form with him at the
meeting but assured Beckley that it contained stan-
dard dues-checkoff language used by the Local. Ac-
cording to Riley, Beckley replied that if standard lan-
guage was used it would be acceptable and Atkinson
agreed.
Atkinson testified that the negotiating session
when the checkoff was discussed occurred on Sep-
tember 2, 1976. According to Atkinson, he volun-
tarily agreed to the principle of dues checkoff where-
upon Riley inquired whether the checkoff
'Oil, Chemical and Atomic Workers International Union, AFL-CIO.
Local 4 620.
236 NLRB No. 93
810
GULF-WANDES CORPORATION
authorization form used in the Baton Rouge area
would be acceptable. Before Atkinson could reply,
Beckley stated that it would probably be all right but
that he wanted to take a look at it. The International
never furnished an authorization form for approval
by Respondent either at negotiations or after the exe-
cution of the contract.
There were no other discussions concerning the
checkoff provisions of the contract. The checkoff
clause agreed to by the parties reads in pertinent
part:
2.01 Payment of dues by employees to the
Union shall be entirely voluntary. To the extent
permitted by law, the following shall apply:
(a) The Employer shall deduct from the wages
of those employees who so authorize such de-
A.I-I - y - * - -.JpLI -n-A la-fu ...Wi..L. LI th1.1
UUXtIlII" Dy a
zation, the
Union.
(b) The auth
the employee
be furnished
shall be app
being used.
(d) For the e
Employer sha
consecutive
amounts as
amounts shal
ly after dedu
list of the na
wages dues h
deducted fror
On or about Fe
ted dues-checkoff
ted to Responden
part:
From and a
Wandes Corl
the amount c
same to the (
International
such deductic
surer of said
tinues on to
forth in Secti
Respondent ret
formed the Inter
tions in favor of
April 6, 1977, Int
Rousselle forwarded executed checkoff authoriza-
tions to Respondent. An accompanying letter in-
formed Respondent that it was authorized and di-
rected to deduct dues in accordance with article II,
section 2.01(a) of the contract and submit these dues
to the secretary-treasurer of the Local. The letter
continued. "In accordance with the above directive,
you are released from any and all legal obligations
relative thereto." Respondent replied to the Interna-
tional by letter on April 17, 1977:
[Wle are, on advice of counsel, returning here-
with your dues deduction authorization. We will
neither check-off dues for local 4-620 nor remit
any dues to them.
Please furnish us with dues deduction authori-
zations in favor of the International Union.
annur al dus eabise by -gLVaL - - At the hearing Respondent reiterated that it was will-annual dues established by theau deeaie t ing to check off dues and remit them to the Interna-
tional if appropriate assignments from the employees
iorization form to be executed by were made.
shall contain an assignment, shall The central issue in this case is whether, under the
by the Union to the Employer and contract, Respondent was obligated to honor the as-
xroved by the Employer prior to signment of a debt from the International to the Lo-
cal. having received authorizations from employees
* * * * to do so. The Administrative Law Judge found noth-
ing in the contract to foreclose the International
from assigning receipt of such dues, to which it is
all make authorized deductions for entitled, to the l ocal or any other party. The Admin-
pays in as nearly equal monthly istrative l aw Judge concluded that the dues-checkoff
I b e remitted to the Uniont. Deducted provision represented a broad agreement on the part
of Respondent to remit dues to whichever labor or-
ctions are effected together with a ganization an employee might assign its receipt. Ac-
mes of the employees from whose cordingly, he found that by refusing to checkoff dues
ave been deducted and the amount from the wages of employees and remit them to the
bm each. ILocal, Respondent breached its obligations under
ebruary 14, 1977, employees execu- the checkoff provision of the contract and thereby
authorizations which were submit- violated Section 8(a)(5) of the Act.
It. The form used read in pertinent In arriving at this conclusion, the Administrative
law Judge rejected Respondent's Section 302 de-
fter this the -- day of fense as lacking in merit. The Administrative Law
19-, 1 hereby authorize Gulf- Judge also found that Respondent's reservation of
the right to approve the specific form was presum-
poration to deduct from my wages ably in order to insure compliance with the provi-
4f my monthly union dues, and payf my onthly union dues, and pa' -sions of Section 302 of the Act. However. the Admin-
Oil, Chemical and Atomic Workersnio, Chemical and Atomic Workers istrative Law Judge found that, by failing to require
Union, AFL-CIO, Local -620 submission bv the International of the proposed
)n to be paid to the Secretary-Trea- dues-checkoff for m prior to execution of the con-
Local Union. . . . [The form con- tract, Respondent had waived any rights it had there-
track the revocation language set under. In support of this waiver theory, the Adminis-
ion 302(c)(4) of the Act.] trative L aw Judge cites credited testimony that
turned these authorizations and in- Respondent had acquiesced in the use of "standard
-national that checkoff authoriza- dues check-off language" at the time of negotiations.
the Local were unacceptable. On Moreover. the Administrative Law Judge states that
ernational Representative Ernest J. Respondent's refusal to check off dues was not be-
811
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause the form itself was defective, but because Re-
spondent objected to participating in a dues checkoff
in favor of the uncertified Local.
Respondent in its exceptions denies any obligation
under the contract either to recognize or checkoff
dues for the Local. It contends that the International
is the only party attempting to unilaterally modify
the contract and that the International. in direct con-
travention of the specific terms of the contract, never
furnished the authorization form to Respondent for
approval although the International was fully aware
that such a step was necessary.
As set forth above, the dues-checkoff provision of
the contract specifically states that:
The authorization form to be executed by the
employee shall contain an assignment, shall be
furnished by the Union to the Employer and
shall be approved by the Employer prior to
being used.
The discussions contemporaneous with the agree-
ment on dues-checkoff language do not explain the
purpose of this language. The limited discussion con-
cerning the authorization card went only to the lan-
guage of the card, not to the identity of the parties
named on the card. The Administrative Law Judge
credits testimony that Respondent expressed no ob-
jection to the use of the standard dues-checkoff lan-
guage used by the Local in the Baton Rouge area. He
also found, however, that this agreement to use stan-
dard dues-checkoff language did not mean that Re-
spondent consented to remit dues to the Local. In
fact, it is uncontested that Respondent adamantly re-
fused to recognize the Local as proposed by the
Union during collective bargaining, and Respondent
never agreed to check off dues in favor of the Local.
A contract is to be interpreted to give meaning to
all its provisions. The Administrative Law Judge
made the narrow presumption that Respondent's
right to approve the checkoff authorization form
used was designed only to insure compliance with the
provisions of Section 302 of the Act. This ignores
section 201(d) of the contract which provides in per-
tinent part that "dues deductions shall be remitted to
the Union." The term "Union" in the contract is de-
fined to refer to the International. We infer from the
contract as a whole, as well as from the bargaining
history, that Respondent reserved its right to approve
the checkoff authorization form used in order to in-
sure that the form did not contravene the overall in-
tent of the parties. Respondent's bargaining conduct
demonstrates that it had no intention of allowing the
dues checkoff to be used as a vehicle for rendering
direct assistance to the Local or as a device for
"shoehorning" the Local into representative status
vis-a-vis Respondent's employees.
Thus, the International's submission to Respon-
dent of executed dues-checkoff authorization forms
in favor of the Local without obtaining the prior ap-
proval of Respondent was not in substantial compli-
ance with the contract. This interpretation of the
contract is consistent with the following testimony of
International Representative Riley:
Q. (Mr. Beckley) Now let me ask you the
question again. I'm not asking you, Jim, about
the language and the card I'm asking you about
whether or not the company agreed to check-off
dues for the Local?
A. (Mr. Riley) I never asked you in that
sense. I don't recall on a check-off for the Local.
Q. You were just checking about the use of
that kind of card?
A. Right.
Because it had according to the contract, we
had to be accepted by the company, whatever
check-off was used."
Dues checkoff is a mandatory subject of collective
bargaining, but the parties need not agree to a check-
off provision. In the instant case, the parties agreed
to a checkoff provision which required the approval
by Respondent of the authorization form prior to its
use. Respondent's refusal to approve an authoriza-
tion form in favor of the Local is consistent with its
bargaining posture throughout the negotiations. Un-
der the facts of this case, we cannot conclude that
Respondent's refusal to honor the checkoff forms
was unreasonable or capricious.
The record is devoid of any evidence which sup-
ports the Administrative Law Judge's holding that,
by agreeing to the use of standard dues-checkoff lan-
guage, the parties intended to waive the provision of
the contract requiring the approval by Respondent
prior to the use of a particular authorization form.
This interpretation of section 2.01 of the contract ad-
vanced by the Administrative Law Judge would ren-
der the entire clause a nullity. The record also pro-
vides no support for the Administrative Law Judge's
conclusion that section 2.01 of the contract mandat-
ed that Respondent require the International to sub-
mit the proposed authorization form prior to the exe-
cution of the contract. The burden to furnish the
checkoff authorization form for approval was on the
International and the contract merely states that the
International had to fulfill this obligation prior to the
utilization of a particular form.
Under the circumstances of this case, there is no
basis for a finding that Respondent unilaterally mod-
ified the contract's checkoff provision. Respondent
adhered to the contract agreed to by the parties and
812
GULF-WANDES CORPORATION
the International was the party which chose to ignore
its obligations under the checkoff provisions of the
contract. Accordingly, contrary to the Administra-
tive Law Judge, we find that, on these facts, Respon-
dent's conduct did not violate the Act. We therefore
shall dismiss the complaint.
ORDER
Pursuant to
Relations Act,
lations Board
herein be, and
Section 10(c) of the National labor
as amended, the National Labor Re-
hereby orders that the complaint
it hereby is, dismissed in its entirety.
zation separate and distinct from the International. Thus,
Ernest J. Rousselle, an international representative of the
Union. testified that Local 4-620 is chartered by the Inter-
national as a labor organization and has been in existence
since 1968. Employees participate in the ILocal and it exists
in part for the purpose of dealing with employers engaged
in commerce. including the Respondent, concerning wages.
hours, and other terms and conditions of employment. I
find that Local 4-620 is a labor organization within the
meaning of Section 2(5) of the Act.
It is not contended by the International or the General
Counsel that Local 4 620 does not constitute a labor orga-
nization distinct from the International.
III THli E t. GECiD I NFAIR i.ABOR PRACTICES
DECISION
A. Sumnloar of the Material Facts
STATEMENT OF THF CASE
JAMES L. ROSE, Administrative Law Judge: This matter
was heard at Baton Rouge, Louisiana, on September 29,
1977, upon a complaint which alleges, in essence, that the
Respondent has breached, and therefore unilaterally al-
tered, its collective-bargaining agreement with the Charg-
ing Party by failure to remit dues pursuant to employees'
lawful assignments. The Respondent is alleged to have thus
violated Section 8(a)(5) of the National Labor Relations
Act, as amended, 29 U.S.C. Sec. 151, el seq.
The Respondent admitted the material factual allega-
tions but denied that it has committed any unfair labor
practices. Affirmatively, the Respondent alleged that it has
no contractual obligation to make the dues checkoff au-
thorized by its employees; and, were it to do so, such
would violate Section 302 of the Act.
Upon the record as a whole, including my observation of
the witnesses, briefs, and arguments of counsel, I herebs
make the following:
FINDINGS OF FACT AND CONCLU;SIONS OF LAW
I SJlRISDICTION
The Respondent, Gulf-Wandes Corporation, is a Louisi-
ana corporation engaged in fabricating and distributing
plastic materials at its principal place of business in Baton
Rouge, Louisiana. In the conduct of its business, the Re-
spondent annually sells and ships goods and products val-
ued in excess of $50,000 directly to points outside the State
of Louisiana, The Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
11 THE LABOR ORGANIZATIONS INV)OLVED
The Charging Party, Oil, Chemical and Atomic Workers
International Union (herein the International or the
Union), is admitted to be and I find is, a labor organization
within the meaning of Section 2(5) of the Act.
Oil, Chemical and Atomic Workers International Union,
AFL-CIO, Local 4-620 (herein Local 4-620), is an organt-
On April 19. 1976, following a Board conducted election,
the International was certified as the bargaining represen-
tative of the Respondent's employees in the following unit:
All production, maintenance, and warehouse em-
ployees and truck drivers employed by Respondent at
its 8325 South Choctaw Drive, Baton Rouge, I.ouisi-
ana. plant; excluding all office clerical employees. pro-
fessional employees, salesmen, guards and supervisors
as defined in the Act.
I hereafter, the parties commenced negotiations and ulti-
matelV entered into a collective-bargaining agreement ef-
fective December 16. 1976. The Respondent notes that the
agreement was reached following a strike, implying that
the employees engaged in an economic strike in connection
with negotiating the contract. I find however, based upon
the Board's Decision in Gulf-W`aondes Corporation. that the
strike, though occurring during the period of negotiations,
wAas caused by the Respondent's unfair labor practices.
Material to the issues here is the Union's proposal dur-
ing negotiations that the Respondent recognize both the
International and Local 4-620 as the joint bargaining rep-
resentatives of the employees. Respondent objected to rec-
ognizing Local 4-620 and this proposal ;ls discarded.
Thus the contract executed by the parties reads in perti-
nelli part
Ihis collective Bargaining Agreement (hereinafter re-
ferred to as the "Agreement") hereby is entered into as
of Decnember 16. 1976, h, and between (;t F WANLt)i
( ORPORAII(ON (the "Emplover") and oii. (H MI(AIL AND
SAi()il \1 ORKRiS INIIRN4I IONA i UNION (the "Union")
with the parties agreeing as follows:
AR I It I RF(O(;NITION
Union
1.00() Ihe Emploxer recognizes the Union as the sole
and exclusive represrentative, for purposes of collec-
tive-bargaining with respect to rates of pay, wages,
hours and other terms and conditions of emplosment
of all emplosees in the bargaining unit specifically de-
scribed in this Atreement.
'21 NI Ru '-' 19'*7
813
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties further agreed to a dues-e
which reads, in pertinent part:
2.01 Payment of dues by employee.
shall be entirely voluntary. To the exte
law, the following shall apply:
(a) The Employer shall deduct frol
those employees who so authorize s
by a proper and lawful written au
annual dues established by the Unic
(b) The authorization form to be (
employee shall contain an assignme
nished by the Union to the Emplo)
approved by the Employer prior to
* *
(d) For the convenience of the emp
ployer shall make authorized deduct
utive pays in as nearly equal mont
reasonably convenient. Deducted al
remitted to the Union promptly after
effected together with a list of the n;
ployees from whose wages dues have
and the amount deducted from eacl
On February 14, 1977, and thereafter, er
ted dues check-off assignments which we
the Respondent. The form used reads:
From and after this the - da
19--. I hereby authorize Gulf-Wandes
deduct from my wages the amount
union dues, and pay same to the Oil
Atomic Workers International Union,
cal 4-620, such deduction to be paid t
Treasurer of said Local Union....
tinues on to track the revocation langi
Section 302(c)(4) of the Act.]
The Respondent refused to make deducti
these authorizations and returned them
Thus, on April 6. 1977, Rousselle wrote the
Respondent enclosing the checkoff assignIn
the annual dues is $108 with monthly ins
The letter continued:
You are authorized and directed by th
and Atomic Workers International L
such dues in accordance with Article
tract and to submit such deductions I
Secretary-Treasurer of Local 4-620 of
cal and Atomic Workers, 365 Nlagn(
nue, Baton Rouge, Louisiana 70808.
The Respondent's president, J. D. Ac
sponded to this letter on April 7 saving:
In reply to your letter of April 6, 1
advice of counsel, returning herewith
duction authorization. We will neither
for Local 4 620 nor remit anyt dues to
Please furnish us with dues deductioi
in favor of the International Union.
checkoff clause
s to the Union
:nt permitted by
m the wages of
At the hearing the Respondent's counsel stated that the
Respondent is ready and willing to check off dues and
remit them to the International if appropriate assignments
from the employees are submitted.
B. Analysis
such deductions The Charging Party and the General Counsel contend
thorization, the that the Respondent is obligated, pursuant to the collec-
on. tive-bargaining agreement, to deduct dues from employees'
executed by the wages, for those who signed the checkoff authorization, and
nt, shall be fur- remit same to Local 4-620.
ier and shall be The Respondent argues that it did not agree to remit
being used. dues to Local 4-620 and that to do so would subject it to
potential jeopardy under the provisions of Section 302 of
the Act.
,loyees, the Em- While the Respondent's defenses have some surface ap-
ions for consec- peal, I conclude that they are without substance. I con-
hly amounts as clude that by refusing to deduct dues from employees'
mounts shall be wages, pursuant to their authorizations, and by refusing to
r deductions are remit such dues to Local 4-620, the Respondent breached
ames of the em- its obligations under the collective-bargaining agreement.
ebeen deducted Breach of a collective-bargaining agreement is a violation
h. of Section 8(a)(5) of the Act, and such amounts to a unila-
teral change.2
rployees execu- While the merits of this matter (the Respondent's con-
tractual obligations) might appropriately have been de-
termined by an arbitrator, the Respondent refused to sub-
ay of -- , mit the issue to arbitration, following the Regional
Corporation to Director's notice that were it to do so, issuance of the com-
of my monthly plaint herein would be deferred.
Chemical and
AFL CIO. Lo- I. The Respondent's obligations under the
o the Secretary- collective-bargaining agreement
[The form con-
uage set forth in In essence, the Respondent contends that it did not obli-
gate itself to check off dues for Local 4-620 because it is
ions pursuant to the International with which the Respondent has the col-
to the Union. lective-bargaining agreement.
president of the Weaving through the Respondent's argument in this re-
rients. He stated spect is its contention that somehow the International is
tallments of $9. attempting to force the Respondent to recognize Local 4-
620 as the employees' bargaining representative.
It is well settled that a certified bargaining representative
te Oil, (Chemical cannot assign its status as such to another, nor does certifi-
Jnion to deduct cation of an international imply that the employees meant
2.01 of the con- to include a local union thereof as their bargaining repre-
to T. I andeche, sentative. 4
the Oil. ('hemi- However, in assigning dues to which it is entitled from
olia Wood Ave- its members to another labor organization, the Union does
not thereby indicate that it is attempting also to assign its
Ikinson III, lo- status as the bargaining representative. This case, in short,
has little to do with the fact that the International, and not
:ts Local 4-20, is the certified bargaining representative of
977 we are, on the employees.
h our dues dc-
r check off dues -Geurd,,n Industries, Inc., 217 NLRB 1018 (1975): Terri-Flex Products,
them. In . 200 NLRB 3 (19721.
' his contenlion was raised and rejected by Ihe Board in Gulf-Wandes
n authorizations (or/,,ralton, iura.
4 .,4 V.orden (onmpanr, Inc., 159 NLRB 1730 (1966).
814
GULF-WANDES CORPORATION
This case involves, no more and no less, the assignment
of a debt from the International to Local 4-620 and wheth-
er under the contract the Respondent was obligated to
honor that assignment, having received authorizations
from employees to do so.
While the contract is clearly unambiguous with regard to
who the "Union" is, the General Counsel arguing that the
word is meant to encompass both the International and
Local 4-620, there is nothing in the contract to foreclose
the Union from assigning receipt of such dues to which it is
entitled to Local 4-620, or to another union or to a bank.
In arguing that it is not obligated to honor such an as-
signment, the Respondent is basically taking the position
that the dues-checkoff provision in this contract is a union-
security device and, in effect, since its contract is with the
Union, it is obligated under the checkoff provision to remit
dues to the Union and only to the Union. The Internation-
al only is entitled to the security provided by checkoff and
such cannot be assigned. This because status as the bar-
gaining representative cannot be assigned.5 Dues checkoff.
however, is not as the Respondent implicitly contends.
Thus, in N.L.R.B. v. Atlanta Printing Specialties and Paper
Products Union 527, AFL-CIO,6 the court said:
The flaw in the union's argument is its underlining
assumption that dues checkoff is a union security de-
vice.
The dues checkoff section of the Act, on the other
hand, far from being a union security provision, seems
designed as a provision for administrative conve-
nience in the collection of union dues. An employee
could revoke the dues deduction authorization, and
yet continue to pay dues personally.
The nub of this matter really involves what the parties
agreed to. The Respondent asserts that the checkoff clause
is narrow-that it agreed to check off and remit the dues of
employees only where the assignee is the International. But
there is nothing in the contract to require such a construc-
tion. To the contrary, the contract is silent with regard to
who employees might assign receipt of their dues, though
impliedly it would be the Union. Further, the contract does
not address the question of assigning the right to receive
dues to another.
Given this lack of information, I conclude that the most
reasonable analysis of the parties' intent is: the Respon-
dent agreed to the principle of checking off dues from the
wages of those employees submitting proper assignments.
Construction of the checkoff clause contended for by the
Respondent is so narrow as to be obstreperous. A checkoff
authorization, as noted by the Fifth Circuit. is an adminis-
trative convenience. Unions ask for this in negotiations
and companies either agree or not, depending upon their
particular economic interest, e.g., whether to check off
dues would be an administrative burden on the compan .
A company need not agree to a checkoff clause, but such is
'There is no maintenance-of-membership or similar clause in th, tln-
tract.
" 523 F 2d 783, 786 iC A . 1975).
a mandatory subject of bargaining.7
}laving agreed to the principle of checking off dues, the
Respondent could conceivablN have no legitimate reason
for not remitting the dues to the recipient designated by the
employees. Nor does the Respondent bring forth an) rea-
son why it would agree to remit dues to the Union but not
to another assignee.
Since the Respondent has shown no reason why the
clause should be narrowly construed, and absent specific
language in the clause resolving the question. I conclude
that the Respondent broadly agreed to remit dues to \shich-
ever labor organization an employee might assign its receipt.
Here the authorizations signed bo the employees are ialid
assignments of their wages. And should there have been ans
question, the letter of April 6 from the Union to the Respon-
dent is a clear assignment of its right to receive dues toc I.ocal
4-620. 1 accordingly conclude that by refusing to check off
dues from the wages of employees and remit them to Local
4-620, the Respondent breached its obligations undei the
checkoff provision of the contract and thereby violated Sec-
tion 8(a)(5) of the Act.
2. The Section 302 defense
The Respondent contends that were it to honor the em-
ployees' assignments and remit the dues money thus de-
ducted from wages to Local 4-620. it would violate Section
302 of the Act and be in jeopardy of criminal prosecution
Again, while this argument has some surface appeal. it is
not meritorious.
So far as is material here. the broad proscription of Sec-
tion 302 is:
It shall be unlawful for any employer . . to pas. lend,
or deliver, or agree to pay. lend, or deliver. amn moner
or other thing of value-
(2) to an' labor organization, or any officer or em-
ployee thereof, which represents, seeks to represent, or
would admit to membership, an, of the rcmploees of
such employer issho are emplo)ued in an indu,!trs af-
fecting commrrce ..
The evil'sought to he proscribed by Congress is obvious
Congress, however, went on to provide that under certaiin
circumstances and specific controlled conditions. pa).-
ments of mones could i.awfulls be made to labor organ iia-
tions.
Pertinent here is subsection (c) and the proviso in sub-
subsection (4) thereof:
(c) 'Ihe provisions of this section 13021 shall not be
applicable . .. (4) with respect to money deducted
from the wages of employees in payment of member-
ship dues in a labor organization: Provided, I hat the
employer has received from each emplo'ee, on w hose
account sach deductions are nmaide. a written assign-
ment which shall not be irrevocahle foir i period of not
more than one 'ear. or heysond the terminatiion da e of
J I R /I l')7 t S " , I 1 'l-o
815
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the applicable collective agreement, whichever occurs
sooner .
The Respondent submits that by the proviso language,
Congress meant that no dues checkoff could be made ab-
sent a collective-bargaining agreement naming specifically
the labor organization to receive the dues. The legislative
history of this section does not reveal any such intent on
the part of Congress.
On the contrary, what Congress clearly had in mind by
this proviso language was to prevent continuation of the
then prevalent practice of labor organizations and em-
ployers negotiating automatic dues checkoff. Congress
wanted employees free to choose to have dues deducted
from their wages or to pay their dues directly. And while
unclear why Congress wrote in two limitation periods for
the irrevocability of a checkoff assignment (I year and the
termination of the applicable collective-bargaining agree-
ment), 8 there is nothing in the Congressional Record to
indicate that thecollectiveagreementhad tonamespecifically
the union to receive the dues. Rather, the reference to a
collective agreement appears to be made because it was in
such instruments that unions and employees had agreed to
automatic checkoff.
Thus, explaining this provision to the Senate. Senator
Ball stated:
Finally, the fourth exception is with respect, but not
to welfare funds, but to the so-called check-off. It does
not prohibit the check-off, but provides that it is legal
only where it is individually authorized by the employ-
ee from whose wages the deduction is made, by an
authorization that is irrevocable for a period of not
more than I year.
And Senator Taft stated:
So far as the testimony shows that is the usual form
of check-off. Under it the employee himself signs a
slip or assignment authorizing the check-off. If he
once signs such an assignment under the collective-
bargaining agreement, it may continue indefinitely un-
til revoked, and it may be irrevocable during the life of
the particular contract, or for a period of 12 months.
That, I think, is substantially in accord with nine-
tenths of all check-off agreements, and simply pro-
hibits a checkoff made without any consent whatever
by the employees.' 0
Finally, the report of the Senate Committee on Labor and
Public Welfare, in referring to this particular provision,
stated:
Thus, the amendment makes extortion illegal and
also prevents the check-off of union dues unless au-
thorized in writing by the individual employee. Such
authorization may be irrevocable for a period of con-
tract, which is the usual form of check-off today."
See N1. R B . A4liantl Printing .Specialties and Paper Product t:Unon.
srupra
s II Leg. Hist. 1304 (1974).
I< Id at 1311.
H1 I eg Hisi 458 (1947) (S. Rep. No 105 on S 1126 Supplemental
Views)
From the limited amount of comment in connection
with this section, it appears that Congress simply wanted to
insure that employees' dues would not be deducted by an
employer and remitted to a union without authorization
from the individual employee, which becomes particularly
important where maintenance of membership is also re-
quired. Further, Congress clearly wanted such authoriza-
tions as might be given by employees to be revocable at
some point in time in order to prevent fraud and undue
influence on employees by their representative.
There is nothing in the legislative history from which to
conclude that a written contract in which the employer
agrees to make the dues checkoff is required. In fact, such
case authority, as exists in this area, indicates that checkoff
by an employer is permissible, assuming an appropriate
authorization from an employee, even in the absence of a
contract, e.g., where the contract has expired.' 2 If existance
of a contract is not mandatory for operation of dues check-
off, a fortiori a specific clause naming the assignee is not
required. Of course, absent a contract the employer would
not be obligated to make the deduction. But such cannot
be equated with criminal liability should it do so.
Nor is there any particular reason to believe that Con-
gress meant to require a formalized agreement before al-
lowing an employer to make dues deductions. For in-
stance, the presence or absence of a checkoff clause in a
contract would not seem to have any bearing on the possi-
bility of extortion or on inhibiting employee rights. If an
employee executes an assignment which by its terms meets
the standards of Section 302(c)(4), why should not the em-
ployer be able to honor it?
Congress meant to protect employees. Such is accom-
plished by their execution of a written assignment. If the
employees here do not want their dues to be remitted to
Local 4-620 they need not make the assignment. Having
done so in clear language and by an assignment which
tracks Section 302(c)(4), the situation which Congress
sought to prevent does not exist. To accept the Respon-
dent's argument that Section 302(c)(4) requires naming the
dues assignee specifically in a collective agreement would
not put an unjustifiably strict and narrow construction on
this section of the Act.
The fifth circuit rejected a somewhat similar contention
in United Steel Workers of America, AFL-CIO v. United
States Gipsum Co. 3 There the company had argued that an
arbitrator's award requiring it to make dues payments pur-
suant to a checkoff authorization clause without corre-
sponding deductions from the employees' pay would ren-
der it liable under Section 302. The court said:
Since the purpose of § 302(a) is to protect employers
from extortion and to insure honest, uninfluenced rep-
resentation of employees, and in view of the exclusion
from its coverage of an arbitrator's award we hold that
§ 302(a) does not render the arbitrator's award here
unenforceable. [Citations omitted.] 14
In short, the construction of Section 302 suggested by
12 A' L. R. B. v. Atlanta Printing Specialties and Paper Products Union, supra.
' 492 F,2d 713 (C.A. 5. 1974).
14 Id at 734.
816
GULF-WANDES CORPORATION
the Respondent is neither supported by the Congressional
Record, nor by such case authority as has been referred to
me or independent research has disclosed. Accordingly, I
conclude that the Respondent's claim of possible criminal
liability is not meritorious and does not excuse it from
abiding by its contractual obligation.
C. Conclusions
While the violation here found does not necessarily in-
clude subjective bad faith, it might be noted that had the
Respondent actually had a good-faith belief that it was not
required under the contract to make the dues deductions
pursuant to the employee assignments, it could have taken
courses of action other than it did. Thus, the Respondent
could have agreed to submit the matter to arbitration, but
it did not. Though refusing to submit to arbitration is not
necessarily an unfair labor practice, such certainly, in situ-
ations such as this, tends to be evidence of lack of good
faith?5 The Respondent might also have put into an escrow
account so much of their wages as the employees assigned
pending determination of whether the money ought to be
remitted to Local 4-620 or to the International.
Again, while subjective bad faith is not an element of the
violation here, to the extent that the Respondent would
contend that its literal reading of the contract and Section
302 defenses somehow establishes good faith, I find that
they do not.
The Respondent further argues that by failing to submit
the assignment form to it for approval, the International
breached the contract. The flip side of this argument is the
General Counsel's contention that the Respondent agreed
to remit the dues to Local 4-620. During contract negotia-
tions there were dicussions between the parties concerning
the form to be used. The Union stated it intended to use
the form that normally was used in the Baton Rouge area,
and the Respondent agreed such would be sufficient. Thus,
argues the General Counsel, the Respondent thereby im-
plicitly agreed that the dues-checkoff clause was meant to
include remittance to Local 4-620, since Local 4-620 is
designated as the recipient in the form used by the Union
in the Baton Rouge area.
It is clear that the Respondent reserved the right to ap-
prove the specific form, presumably in order to insure com-
pliance with the provisions of Section 302. But by failing to
require submission by the Union of the proposed form
prior to execution of the contract, the Respondent waived
15 George E. Carroll, an Individual, d/b/a Carroll's Transfer Comprlna, e
al., 56 NLRB 935 (1944).
any rights it had thereunder. This I find from the testimony
of James Riley even though J.D. Atkinson III indicated
that his attorney said he wanted to look at it.
In any event, I believe that Respondent and the Union
meant that the employees would execute a form proper
under Section 302(c)(4). That the form ultimately used
names Local 4-620 does not imply the substance contend-
ed for it by the General Counsel-that the parties agreed in
the contract specifically that the Respondent would remit
dues to Local 4-620. However, I do find that the Respon-
dent waived approval of the specific form when assured
that the one to be used was "standard dues check-off lan-
guage." And in any event, here the Respondent does not
suggest that the form as such is defective.
I conclude that the Respondent has breached its collec-
tive-bargaining obligations to the Union by refusing to
remit dues to Local 4-620 pursuant to valid assignments by
employees. Accordingly, I will recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
IV E FECTE OF TlHE LNFAIR I.ABOR PRA( -i(E S IPON COMMER( E
The unfair labor practices found are unfair labor prac-
tices affecting commerce and the free flow of commerce
and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce within the
meaning of Section 2(6) and (7) of the Act.
v IIE RFMEDY
Having found that the Respondent has breached its bar-
gaining obligations by not remitting to Local 4-620, pur-
suant to appropriate assignment, dues of employees, I shall
recommend that it cease and desist therefrom and forth-
with commence making the appropriate deductions and
remittances pursuant to such valid assignments as are sub-
mitted to it. I shall also recommend that the Respondent
pay to Local 4-620 all dues properly authorized to be de-
ducted but which the Respondent failed to deduct and
transmit to Local 4-620.16 The determination of which em-
ployees signed valid authorizations and their effective
dates is a matter for the compliance stage of this proceed-
ing. Finally, the Respondent's liability under this remedy
shall include interest as provided for in Florida Steel Corpo-
ration, 17
[Recommended Order omitted from publication.]
I~ SItI AIpole ('omprnpnts ( tnrarm, 232 Nl.RB 723 ( 1977)
i 231 NTiRB 651 1977). Also see, generally. slv Plurnlbin & Hleaing ( o.
138 NLRR 71h (19621
817