Hughes Aircraft Co.

National Labor Relations Board - Board Decisions

Apr 19, 1967

164 N.L.R.B. 76 (N.L.R.B. 1967)

76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Machinists &
Aerospace Workers, Local Lodge No. 933,
AFL-CIO (Hughes Aircraft Company,
Tucson Division ) and A . R. Greszler,
Richard McHenry , and Harry E. Ouder-
kirk. Cases 28-CB-377, 28-CB-380, and
28-CB-38).
April 19, 1967
DECISION AND ORDER
BY CHAIRMAN MCGULLOCH AND MEMBERS FANNING
AND JENKINS
On September 27, 1966, Trial Examiner
Marion C. Ladwig issued his Decision in the above-
entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
the Respondent cease and desist therefrom and take
certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found
that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint.
Thereafter, exceptions to the Trial Examiner's
Decision and a supporting brief were filed by the
General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner at the hearing and finds that no prejudicial
error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, only to the extent consistent
herewith.
The consolidated complaints in this case allege
that the Respondent, by refusing to recognize the
revocation of checkoff authorizations submitted by
the Charging Parties and by continuing to require
Hughes Aircraft to deduct the dues of the Charging
Parties, notwithstanding the attempted revocation,
restrained and coerced these employees in the
exercise of their rights guaranteed in Section 7 of the
Act and thereby violated Section 8(b)(1)(A) of the
Act.
Shortly after employment, each of the three
Charging Parties signed checkoff authorization
forms, and, subsequent to signing such forms, each
was temporarily laid off by the Employer, Hughes
Aircraft Company. During the period of layoff, their
memberships in the Union were canceled by the
Respondent. At the end of the layoff periods, each of
the Charging Parties returned to active employment
with the Employer. The Charging Parties attempted
to revoke their checkoff authorizations in
accordance with the terms of the collective-
bargaining agreement and continued to advise the
Respondent of their desire to revoke such
authorizations. The Respondent, however, has
refused to recognize the revocations as being timely
made, and concedes that it has continued to require
Hughes Aircraft to deduct their dues. As Arizona is a
"right to work" State, the collective-bargaining
contract does not require membership in the Union
as a condition of employment.
Charging Party Harry E. Ouderkirk was first
employed by the Employer in June 1961. He signed
the dues-deduction checkoff in October 1961. He
was laid off and recalled on two occasions:
November 1, 1963-June 9, 1964; and July 3,
1964-November 30, 1965. During the periods of
layoff, Ouderkirk neither paid dues nor purchased
unemployment stamps which would have excused
him from the payment of regular dues. Respondent
International's constitution provides that, under
such circumstances, membership is automatically
canceled. The Respondent's business representative
testified that Ouderkirk was "lapsed from
membership" in January 1964 for failure to apply for
unemployment stamps, and also that he never
subsequently applied for reinstatement in the
Union.'
On November 14, 1962, Ouderkirk sent a letter,
dated November 15, 1962, to his Employer and also
one to the Respondent Union canceling his dues-
checkoff authorization. The envelopes in which
these letters were sent were postmarked
November 14, 1962. The checkoff authorization
which Ouderkirk signed provided that "This
authorization and assignment shall be considered to
have been re-executed and extended year to year
hereafter for periods not to exceed one (1) year each
if not cancelled: ... (3) by written notice to the
Employer, copy to the Union ... dated U.S. Post
Office cancellation between November 15 and 30,
inclusive of the then currently effective yearly
period ...... Ouderkirk mailed his letters by
certified mail a day ahead of the specified time. The
Employer continued taking out his dues after the
letter of revocation, and Ouderkirk subsequently
complained to his union steward, who promised
repeatedly to check on the matter but never
subsequently advised Ouderkirk of any action taken.
After Ouderkirk was recalled from layoff in
November 1965, he found out in December of that
year that his employer was still checking off his
dues. He complained to the payroll department and
was told that his 1962 notice of revocation was too
early by 1 day, and that the letter was supposed to
I Sometime in December 1963 or January 1964, Ouderkirk
received a notice from the Respondent that he was delinquent in
his dues payment and that his membership in Respondent would
lapse if he did not pay the amount owing by March 31, 1964
164 NLRB No. 6
HUGHES AIRCRAFT COMPANY 77
have been sent by registered mail instead of certified
mail. Ouderkirk later talked to the head of employee
relations who also told him that the letter was a day
too early.
In March 1966, Ouderkirk received a letter from
the Union advising him that the Union's past
practices of automatically reinstating to membership
those who had allowed their membership to lapse, as
Ouderkirk had, was contrary to its International's
constitution,2 and asked him to sign a new
membership application and checkoff authorization.
Ouderkirk did not apply for reinstatement, nor did
he sign the new checkoff authorization.
Charging Party McHenry was first employed by
Hughes Aircraft in June 1955. He shortly thereafter
signed a checkoff authorization and later signed
another on March 12, 1963. On October 15, 1965, he
sent registered letters to both the Company and the
Union, withdrawing from the Respondent Local.3
Approximately 2 weeks thereafter, he spoke to
Mr. Thomason of the Employer's labor relations
department who told him that his letter was not
timely by a matter of days; but when asked what
days would have been timely, Thomason gave no
reply. McHenry then talked to his union steward and
asked him to check on what days would have been
timely. His steward subsequently told him that there
were two timely periods when his revocation would
be effective; 10 to 25 days prior to (a) the yearly
anniversary date of the collective-bargaining
agreement, or (b) the yearly anniversary date of his
checkoff authorization date. McHenry then sent
another registered letter on February 10, 1966, to
both the Company and the Union, submitting his
withdrawal from the Union and revoking his
checkoff authorization. Before sending the second
letter, McHenry again talked to Thomason and told
him that the union steward had indicated that the 10-
through 25-day period prior to the yearly anniversary
of the date he signed the union checkoff
authorization was timely for withdrawal and
cancellation. Thomason said he would check on this,
and the next day he told McHenry that it was his
understanding that what the union steward had told
McHenry was correct. After sending in the second
letter, McHenry again inquired of the Union as to
what happened in respect to the second revocation,
and was told that it was also not timely.
During the period that McHenry was laid off
(January 1964 through October 1965), he did not pay
any dues or purchase unemployment stamps and,
accordingly, his membership in the Respondent
Local was canceled. McHenry never applied for
reinstatement after he returned to work in October
1965.
Charging Party Greszler signed a checkoff
authorization on October 3, 1963.4 He subsequently
was laid off for periods in January, February, March,
and April, 1964, and from some date in May 1964
through October 1, 1965. During the last period of
layoff, he failed to pay union dues and did not apply
for membership unemployment stamps.
Accordingly, his membership was automatically
canceled. When he returned to work in 1965, he was
asked to sign an application for reinstatement in the
Union, but refused to do so. The Employer continued
checking off his dues after he returned in October
1965, and he asked his shop steward, Bruce Miller,
why dues were being deducted when he was no
longer a member. Shop Steward Miller told him that
his checkoff authorization, which he had signed in
1963, was still in force and that the only way to
eliminate it was to write both the Union and the
Company, notifying them of his desire to revoke the
authorization, and that such letters had to be in by
October 20, 1965. Greszler then sent the letters on
October 14, 1965, to both the Union and the
Company. The Company continued to check off his
dues, and Greszler spoke to Thomason and asked
him why the Company continued making the
deductions. Thomason told him that his revocation
letter of October 14 was a day late and was therefore
not effective. Greszler advised Thomason that he
was no longer a union member and that the steward
told him to get his letter in by the 20th. Thomason
agreed to void Greszler's checkoff authorization
upon receipt of a note from the Union that Greszler's
membership was canceled, or a note advising him
that the union steward had given Greszler the wrong
information. Greszler was unable to obtain such a
note from the Union.
The Trial Examiner found that the union steward
intentionally misled McHenry as to the proper dates
that he could submit his checkoff revocation, that
McHenry relied on the misleading advice received,
and that, therefore, the Union violated Section
8(b)(1)(A) of the Act by refusing to recognize
McHenry's October 15, 1965, checkoff revocation
S Section 16, article I, constitution of the International
Association of Machinists & Aerospace Workers effective
January 1, 1965
' McHenry's checkoff authorization form authorized the
Company to deduct from his wages "each month such sum as
is equivalent to the Union 's regular monthly membership dues
" and further provided that "This authorization and
assignment shall be irrevocable for a period of one (1) year from
this date, or until the termination of the applicable Collective
Bargaining Agreement between the Employer and the Union,
whichever occurs sooner This authorization and assignment shall
continue in full force and effect from year to year for one-year
periods beyond the irrevocable period set forth above, and each
subsequent one-year period shall be similarly irrevocable unless
revoked by me giving written notice to the Employer and the
Union, bearing my signature and payroll number, by certified mail
dated by U S Post Office cancellation at least ten (10 ) days, but
not more than twenty-five (25) days prior to the last day of my
irrevocable period hereof "
He signed the same type of authorization as did McHenry
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice and requiring the Company to continue
deducting union dues from his wages.5
With respect to the other two Charging Parties,
the Trial Examiner found that they were neither
tricked nor intentionally misled into submitting
untimely revocation notices. He concluded that the
parties to the collective-bargaining agreement had
construed the agreement as requiring that each
employee be bound by his voluntary 'checkoff
authorization for its term, regardless of whether or
not his union membership continued without
interruption, that the annual revocation period has to
be strictly applied as written, and that the revocation
notices had to be in writing and timely, and that the
Charging Parties should have resorted to the
grievance procedure in the collective-bargaining
agreement between the Respondent and Hughes
Aircraft to seek redress for any wrongs committed
by Respondent in requiring the Employer to
continue checking off dues payments.
We do not agree. In our opinion, Respondent's
insistence that Hughes Aircraft Corporation
continue to check off the dues of the Charging
Parties after Respondent had terminated their union
membership, restrained and coerced the Charging
Parties in their right to refrain from joining or
assisting Respondent Union.
Quite obviously, Respondent's termination of the
union membership of the Charging Parties during
their long layoff from employment at Hughes
Aircraft extinguished any obligation to pay monthly
dues and other union fees flowing from the fact of
membership itself. Such obligation was not, and
could not be, revived by Respondent's attempted
reinstatement of their membership standing without
application on their part and over their expressed
objection. Nor do the authorization cards signed by
the Charging Parties serve as a defense to the
allegations of the complaint. The circumstances of
this case persuade us that the authorization cards
involved were intended and understood by all parties
concerned to authorize only the deduction of certain
fees which the Charging Parties were obligated to
pay to Respondent Union by virtue of their
membership in the Union. Thus, the Charging
Parties executed the authorization cards involved at
a time when they were members of the Respondent,
and Respondent introduced no evidence to show
that checkoff provisions of the contract were
intended to be used or were used by nonmembers
wishing to make support money payments to the
Union; and the wording of the authorization cards is
prescribed in the provisions of the collective-
bargaining agreement entitled, "Deduction of Union
Fees and Payment," and clearly relates to the
payment of membership obligations. Moreover, we
believe Respondent's action of attempting to
reinstate the Charging Parties' union membership
before demanding that Hughes Aircraft Company
deduct membership dues from their paychecks is
persuasive evidence that Respondent did not
normally treat dues deduction authorizations of its
members as a valid basis for collecting support
money payments after membership had lapsed or
otherwise been canceled or terminated on its
initiative. In the light of the foregoing
considerations, we are satisfied that, after
Respondent terminated the Charging Parties' union
membership, the Charging Parties were no longer
obligated to send the Union and Hughes Aircraft
Company notice of their intention to terminate their
authorizations in order to prevent such
authorizations from automatically renewing. We
therefore find that such authorizations were no
longer in effect when the Respondent invoked the
provisions of the collective-bargaining agreement to
require Hughes Aircraft Company to deduct
membership dues from the Charging Parties'
paychecks after their return to work. Accordingly,
we find that Respondent violated Section 8(b)(1)(A)
of the Act by insisting that Hughes Aircraft deduct
sums equal to Respondent's monthly membership
dues from the Charging Parties' wages and by
accepting payment of such sums.6
CONCLUSIONS OF LAW
By terminating the union membership of
A. R. Greszler, Richard McHenry, and Harry E.
Ouderkirk, and thereafter requiring the Hughes
Aircraft Company, Tucson Division, to continue
deducting sums equal to the monthly union
membership dues from these employees' wages, by
accepting payment of such sums, and by misleading
A. R. Greszler concerning when to revoke his
checkoff authorization, causing him to submit
untimely revocation notices, the Union has engaged
in unfair labor practices affecting commerce within
the meaning of Sections 8(b)(1)(A) and 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in'
'We adopt this finding, but with reference to allegations of
the complaint relating to Respondent 's refusal to recognize
Greszler's rather than McHenry 's revocation notice We do so
because the Trial Examiner inadvertently relied on Greszler's
testimony relative to the advice he received from Shop Steward
Miller and attributed such testimony to McHenry The Trial
Examiner found that , "according to McHenry , the steward told
him his checkoff authorization was still in force and that the only
way to eliminate it was to send revocation notices to the Company
and the Union and to have the letters in by October 20 " The
record indicates, however, that McHenry spoke to his union
steward after he had submitted his revocation, and the steward
advised McHenry that the revocation submitted during either 15-
day period prior to the anniversary of the union contract date or
the dues -deduction authorization date would have been timely to
revoke the checkoff authorization
6 Whether the matter would be resolved differently had the
Charging Parties resigned from Respondent Union in an attempt
to short circuit their voluntary agreement that the dues -deduction
authorization would automatically be renewed for a yearly period
absent a timely revocation , we do not decide
HUGHES AIRCRAFT COMPANY
certain unfair labor practices, we shall order it to
cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, International
Association of Machinists & Aerospace Workers,
Local Lodge No. 933, AFL-CIO, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Misleading employees of Hughes Aircraft
Company, Tucson Division, about when their dues-
checkoff authorizations may be timely revoked, and
from treating such authorizations as of continuing
validity after Respondent has terminated the union
membership of employees.
(b) Insisting or otherwise requiring Hughes
Aircraft Company, Tucson Division, to deduct from
the wages of Harry E. Ouderkirk, Richard McHenry,
and A. R. Greszler amounts equal to the
Respondent's monthly membership dues pursuant
to checkoff authorization executed by these
employees prior to the termination of their union
membership by Respondent.
(c) In any like or related manner restraining or
coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act.
(a) Reimburse Harry E. Ouderkirk, Richard
McHenry, and A. R. Greszler for all sums im-
properly deducted from their wages for payment
of union dues or an equivalent sum for a period of 6
months prior to the filing of the charge with the
Board, together with interest thereon at the rate of 6
percent per annum.
(b) Post at all bulletin boards assigned to said
Respondent Union at the Tucson Division facilities
of Hughes Aircraft Company, and in the
Respondent's business offices and meeting halls,
copies of the attached notice marked "Appendix."7
Copies of said notice, to be furnished by the
Regional Director for Region 28, after being duly
signed by an authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
Upon request of the Regional Director, the
Respondent shall supply him with a sufficient
number of signed copies for posting by Hughes
Aircraft Company, Tucson Division, if it be willing to
do so, at its facilities near Tuscon, Arizona.
79
(c) Notify the Regional Director for Region 28, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
' In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order "
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL
ASSOCIATION OF MACHINISTS & AEROSPACE
WORKERS, LOCAL LODGE No. 933, AFL-CIO
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT mislead employees of Hughes
Aircraft Company, Tucson Division, about
when their dues-checkoff authorizations may be
timely revoked, and will not treat such
authorizations as of continuing validity after we
have terminated the union membership of
employees.
WE WILL NOT insist on or otherwise require
Hughes Aircraft Company, Tucson Division, to,
deduct from the wages of Harry E. Ouderkirk,
Richard McHenry, and A. R. Greszler an
amount equal to our monthly membership dues
pursuant to checkoff authorizations executed by
these employees prior to our determination of
their union membership.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed by Section 7 of the Act.
WE WILL reimburse Harry E. Ouderkirk,
Richard McHenry, and A. R. Greszler, whose
union membership we canceled and whose
revocations of checkoff authorization we
improperly refused to recognize, for all sums
improperly deducted from their wages,
pursuant to such authorizations, by Hughes
Aircraft Company, Tucson Division, for a period
of 6 months prior to the filing of charges by
these employees with the National Labor
Relations Board, together with interest thereon
at the rate of 6 percent per annum.
INTERNATIONAL
ASSOCIATION OF
MACHINISTS&
AEROSPACE WORKERS,
LOCAL LODGE No. 933,
AFL-CIO
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days from the date of posting, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the
Board's Regional Office, Federal Building, 230
North First Avenue, Phoenix, Arizona 85025,
Telephone 261-3717, if they have any question
concerning this notice or compliance with its
provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: These
consolidated cases were heard before me at Tucson,
Arizona, on July 12, 1966, pursuant to separate charges
filed by three individuals, A. R. Greszler,
Richard McHenry, and Harry E. Ouderkirk, on
January 31 and April 14 and 15, 1966, respectively; a
complaint dated April 25; and a complaint with order of
consolidation dated June 20, 1966. The primary issue is
whether or not the Respondent (also called the Union)
violated Section 8(b)(1)(A) of the National Labor Relations
Act, as amended, by refusing to recognize the Charging
Parties' checkoff revocations and requiring the Company
(Hughes Aircraft Company, Tucson Division)' to continue
deducting union dues from their wages.
Upon the entire record,2 including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Union,3 I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company is a corporation licensed to do business in
Arizona, and is engaged in the design and manufacture of
aircraft and missile components at its facilities near
Tucson, Arizona, where it purchases and receives
annually goods valued in excess of $50,000 directly from
points outside that State, and from where it ships annually
finished products valued in excess of $50,000 directly to
points outside that State. I find that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act. The Respondent (also called the Union) is a labor
organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Disputes Over Revocation of Checkoff Authorizations
On October 17, 1961, Charging Party Ouderkirk signed
a dues-checkoff authorization , on a form quoted in the
then current collective -bargaining agreement. It
authorized the Company "to deduct regular monthly
Union dues" from his wages , "in accordance with
provisions of the Agreement between the Employer and
the Union ," and provided that it "shall be considered to
have been re-executed and extended year to year hereafter
for periods not to exceed one (1 ) year each if not cancelled
. by written notice to the Employer, copy to the Union,
bearing my signature and clock number , by registered
mail dated U.S. Post Office cancellation between
November 15 and 30, inclusive of the then currently
effective yearly period . ." (Emphasis supplied.)
On March 12 and October 3, 1963, respectively,
Charging Parties McHenry and Greszler signed a new
checkoff form (as quoted in the then current , and the
present , collective -bargaining agreement ). It authorized
the Company to deduct from their wages "each month
such sum . as is equivalent to the Union 's regular
monthly membership dues ... in accordance with the
provisions of the Collective Bargaining Agreement
between the Employer and the Union ," and provided:
This authorization and assignment shall be
irrevocable for a period of one (1) year from this date,
or until the termination of the applicable Collective
Bargaining Agreement between the Employer and the
Union , whichever occurs sooner. This authorization
and assignment shall continue in full force and effect
from year to year for one-year periods beyond the
irrevocable period set forth above, and each
subsequent one-year period shall be similarly
irrevocable unless revoked by me giving written
notice to the Employer and the Union, bearing my
signature and payroll number, by certified mail dated
by U.S. Post Office cancallation at least ten (10) days,
but not more than twenty-five (25) days prior to the last
day of any irrevocable period . . . . (Emphasis
supplied.)
Thereafter , all three of the Charging Parties were laid
off during parts of 1964 and 1965. They failed to apply to
the Union for unemployment dues stamps during their
layoffs, and their union membership was canceled.
The Company recalled McHenry and Greszler on
October 1, 1965. By letters postmarked October 15 and 14,
1965, respectively , both of them notified the Company and
the Union to revoke their 1963 checkoff authorizations.
Computing the annual revocation period under the
collective -bargaining agreement as extending from
September 28 through October 13 (25 to 10 days prior to the
October 23 termination date of the agreement), the
Company considered the revocation notices untimely (by 2
and 1 days , respectively) and declined to honor them.
Thereafter , McHenry sent another revocation notice
postmarked February 10, 1966 ,4 which likewise was
rejected as untimely.
Ouderkirk was recalled on November 30, 1965. He had
previously mailed revocation notices postmarked
November 14, 1962 ( 1 day outside the November 15
through 30 revocation period stated in his 1961 checkoff
authorization), but none in subsequent years.
The Company resumed the monthly deduction of union
dues from the wages of the three Charging Parties; their
membership was automatically reinstated ; and they are
' The name of the Respondent was amended at the hearing
x The General Counsel's motion to correct the record, dated
August 29, 1966, is hereby granted and the record is corrected
accordingly
I The Union's motion to dismiss the complaint is hereby denied
because of the findings and conclusions made hereinafter
This revocation notice was several days more than 25 days
prior to the March 12 anniversary date of McHenry's checkoff
authorization In the summer of 1965, the Company and Union
had signed a wntten understanding that the 25- to-10-day
revocation period preceded the termination Gate of the
agreement , not the anniversary date of the checkoff authorization,
in situations such as this
HUGHES AIRCRAFT COMPANY
carried on the Union's membership rolls as members in
good standing. McHenry and Greszler admitted receiving
new paid-up dues books, as well as their original dues
books, but Ouderkirk testified: "I have never received a
union book since I have been in the Union." I discredit his
denial.
Since April 1, 1966, by orders from its International, the
Union has not automatically reinstated employees'
membership. Unless an employee recalled after that date
signs a reinstatement application, he is carried on the
Union's records as a fees paying nonmember. Although
Ouderkirk was invited on April 1 to sign a reinstatement
application, and he declined, the evidence is undisputed
that he had been automatically reinstated under the prior
practice. Greszler had earlier refused to sign a
reinstatement application, and McHenry had tendered his
resignation from the Union with both his October and
February revocation notices.
The grievance and arbitration procedure in the
agreement (article XVI, section A) provides that all
complaints "between the Employer and employees ...
and/or the Union" shall be settled through the procedure.
Section B of that article provides that "the aggrieved
employee, or the employee and his steward, or his
steward" shall discuss the complaint "with respect to ...
the interpretation, application ... or alleged violation ...
of this Agreement" with the employee's immediate
supervisor. It further provides that if the answer to this
oral grievance is not satisfactory, "the employee and/or his
steward" must file a written grievance. Thereafter, under
steps one and two of the procedure, the aggrieved
employee is permitted to be present at the grievance
meetings. If no settlement is reached, the grievance may
be submitted to arbitration. Under subsection 3(a) of
section D, "The decision of the Arbitrator shall be final
and binding upon the parties."
The three Charging Parties protested orally about the
continued checkoff of dues from their wages but did not
file grievances challenging the deductions.
B. Misled by Union Stewards
Two of the Charging Parties contended at the hearing
that their union stewards had caused them to mail
revocation notices when they did by giving them
misleading advice about the revocation period under the
agreements and the checkoff authorizations.
McHenry testified that after getting his first paycheck in
October 1965 he asked his steward why a month's dues
had been deducted even though he was no longer a union
member. According to McHenry, the steward told him that
his checkoff authorization was still in force, that "the only
way to eliminate it" was to send revocation notices to the
Company and the Union, and to have the letters in by
October 20. He thereafter mailed his revocation notice on
October 14 (1 day after the revocation period as computed
by the Company and the Union from the wording of the
agreement and the checkoff authorization). McHenry's
testimony stands undenied on the record. The Union,
which was not represented by counsel at the hearing, did
not call the steward to deny or verify the testimony. I
credit McHenry's testimony about his being misled.
Ouderkirk testified that he was misled also by advice
from his steward in November 1962, to mail his revocation
in early. However, this testimony related to alleged
occurrences far beyond 6 months preceding the filing of
his charge. Moreover, I do not credit his testimony about
what a steward supposedly told him in 1962. Because of
81
his demeanor on the stand, and his apparent eagerness to
prove his case regardless of the facts, I find that he was
not a reliable witness. Besides denying that he had ever
received a union dues book, as noted above, he testified
that he heard nothing about his 1962 revocation notice
being untimely at the time, and "figured it was good."
However, the record shows that he was telephoned by an
employee in the Company's employee relations
department on November 28, 1962 (within the
November 15 through 30 revocation period), that he was
then advised that his notice was untimely, and that he told
the employee that he would write another revocation
letter. For these reasons, and because of other conflicting
testimony, I discredit his claim that he was misled in 1962.
C. Opposing Contentions
The General Counsel contends that while no charge was
filed against the Company for the continued checkoff of
dues from the wages of the three Charging Parties, the
Company's action "was violative essentially and in
substance of Section 8(a)(1) and (2)," and "where the
employer has violated 8(a)(1) and (2) at the instance of the
Union and as a result of acquiescing in an `agreement' with
the Union's demands, the Union, on the principle of ...
Miranda Fuel Company, Inc., 140 NLRB 181 (1962), is
guilty of violating 8(b)(1)(A)." The Union denies that it has
violated any of the Charging Parties' Section 7 rights.
Concerning McHenry and Ouderkirk, the General
Counsel contends that the evidence shows that union
stewards misled them by giving them wrong information
about when to mail the revocation notices, citing
Philadelphia Sheraton Corporation, 136 NLRB 888, 896
(1962), and Local 98D, International Union of Operating
Engineers (Construction Fields Surveys, Inc.), 156 NLRB
545 (1966), which require a union to notify an employee
about his membership obligations before demanding his
discharge under a union-shop agreement. The Union,
answering that it has no knowledge that the employees
were given misleading information, argues that it merely
insisted that the Company honor the contractual checkoff
provisions, and did not demand the discharge of the
Charging Parties, nor disturb their job opportunities in any
way. The Union also contends that the termination and/or
reinstatement of union membership concerns the Union's
internal affairs, under the Section 8(b)(1)(A) proviso that
"this paragraph shall not impair the right of a labor
organization to prescribe its own rules with respect to the
acquisition or retention of membership therein," citing
Local 283, United Automobile Workers, UAW-AFL-CIO
(Wisconsin Motor Corporation), 145 NLRB 1097 (1964).
Concerning McHenry and Greszler, the General
Counsel contends that the timeliness of their revocation
notices should be determined by the Board under its
principle for computing the 60-day notice provisions under
Section 8(d) of the Act, Ohio Oil Co., 91 NLRB 759,
761-763 (1950), and for computing the 6-month statute of
limitation in Section 10(b), Baltimore Transfer Co., 94
NLRB 1680, 1681-82 (1951). Although this asserted
principle, of starting the statutory period "at midnight
either preceding or after the occurrence of the initiating
event," might or might not have the effect of extending the
revocation period 1 day (until October 14, when Greszler's
notice was postmarked), the General Counsel does not
indicate how that principle would be applicable to
McHenry's notice, postmarked 2 days after the revocation
period as computed by the Company and the Union.
Alternatively, the General Counsel contends that the oral
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protests by McHenry and Greszler , as well as by
Ouderkirk , against the continued dues checkoff were
sufficient to nullify the checkoff authorizations , in view of
the termination of their union membership . In support of
this theory, the General Counsel cites Penn Cork &
Closures, Inc., 156 NLRB 411 (1965), where the Board held
that "when there has been an affirmative deauthorization
vote, outstanding checkoff authorizations originally
executed while a union - security provision is in effect
become vulnerable to revocation regardless of their
terms." None of the collective -bargaining agreements in
evidence contains such union - shop provisions , and there is
no evidence that the Charging Parties' signing of the
checkoff authorizations was not entirely voluntary. The
Union , on the other hand, contends that the under
"relevant" arbitration decisions concerning the
interpretation and application of dues-checkoff provisions
in collective - bargaining agreements , the revocation
notices were untimely, and arbitrators have repeatedly
held that checkoff authorizations are binding legal
contracts which must be honored according to their terms,
whether or not membership in the Union is continued.
Minneapolis -Honeywell Regulator Co., 36 LA 1138 ( 1961);
Bell Helicopter Co., 36 LA 933 ( 1961); International Shoe
Co., 36 LA 867 (1961); and Eugene Rothmund Co., 14 LA
676 (1950).
Further concerning Ouderkirk 's checkoff, the General
Counsel contends that although the authorization provided
for automatic extension from year to year , it "failed to
provide" in its initial term "that it was irrevocable for a
period of no more than one year, or the termination date of
the applicable collective bargaining agreement , whichever
occurred sooner ." The General Counsel then contends:
"Whether or not the violation of 302(c)(4) of the Act
constitutes an unfair labor practice ," [which it clearly
does not, Salant & Salant, 88 NLRB 816 , 817-819 (1950)],
Ouderkirk ' s checkoff authorization was automatically
canceled ( 1) by the Company and the Union entering into a
new agreement , setting out a different type checkoff
authorization form, and (2) by the termination of
Ouderkirk 's union membership , inasmuch as the checkoff
authorized the deduction of "regular monthly dues," and
he no longer owed union dues. The General Counsel also
contends that the 1-day early notice in 1962 was
"substantially" timely and should be accepted, and that
the continued deduction of the dues was a "continuing
violation." The Union , in addition to citing the "relevant"
arbitration decisions , contends that a determination of the
legality of the checkoff is within the jurisdiction of the
Justice Department , which has the responsibility of
enforcing Section 302(c)(4) of the Act, and cites the Justice
Department 's leading opinion on checkoffs, 22 LRRM 46
(1948).
D. Concluding Findings
In agreement with the General Counsel , I find that the
Union violated Section 8 (b)(1)(A) of the Act by refusing to
recognize McHenry's October 15, 1965, checkoff
revocation notice and requiring the Company to continue
deducting union dues from his wages. In the absence of a
union -security provision in the collective -bargaining
agreement , McHenry had a Section 7 right to refrain from
assisting , or supporting , the Union during the ensuing
year , unless he was contractually bound by his voluntarily
executed checkoff authorization . In order to avoid being so
bound , he attempted to send timely revocation notices.
However , misleading information from his union steward,
about the contractual revocation period , caused him to
submit untimely notices.
Because of the wording of the agreement and the
checkoff authorization , I must assume that the union
steward intentionally misled McHenry. Under no possible
interpretation of the contractual provision could the
steward reasonably have concluded that the revocation
period (of 25 to 10 days prior to the October 23 termination
date of the agreement ) would extend until October 20. It
could be argued that McHenry should not be permitted to
rely on such false information , instead of reading and
interpreting the contractual language himself . But where,
as here, the Union intentionally misled the employee, to
interfere with his contractual right to revoke his checkoff
authorization, I find that the Union thereby restrained him
in the exercise of his Section 7 right to refrain from
supporting the Union.
In the cases of Greszler and Ouderkirk , however, the
Union has not tricked them into submitting untimely
revocation notices. Neither has the Union taken any action
to interfere with their employment status. The Union has
merely urged its interpretation of the employees'
contractual obligations under the checkoff provisions in
the agreement , and under the express wording of the
checkoff authorizations. Furthermore , the Company
agrees with the Union 's interpretations . Apparently guided
by applicable arbitration decisions , these two parties to
the collective -bargaining agreement conclude that, under
the checkoff provisions , each employee is bound by his
voluntarily executed checkoff authorization for its term,
regardless of whether or not his union membership
continues without interruption ; that the annual revocation
period must be strictly applied as written ; and that the
revocation notices must be in writing and timely.
The General Counsel does not contend that the parties
to the agreement are acting in bad faith in interpreting and
applying it. Rather, the General Counsel seeks the Board
to place its own construction on the contract language, and
to rule that the mutual interpretation and application of
the agreement by the parties is improper and therefore
violates the Act
Under somewhat similar circumstances , where an
employer was charged with failing to honor checkoff
revocations which it contended were untimely, the Board
held that "this proceeding involves essentially a dispute
concerning the meaning and administration of the
checkoff provisions of [the] contract , as implemented by
the employees ' authorization ," and concluded that " it will
not effectuate the policies of the Act for [the Board] to
police collective bargaining agreements by attempting to
resolve disputes over their meaning or administration,
particularly where ... the Respondent acted reasonably
and in good faith." Morton Salt Company, 119 NLRB 1402,
1403 ( 1958). While the Board , since that decision , has not
refrained from determining contract issues where such a
determination was considered essential for the
enforcement of statutory rights [see C & S Industries,
Inc., 158 NLRB 454 (1966)], there appear to be compelling
reasons here, as in the Morton Salt case, for the Board to
exercise its discretion not to intrude in the contracting
parties' interpretation and application of their agreement.
In apparent reliance on well-established arbitration
principles for construing contractual checkoff provisions,
the contracting parties have reached an accord in the
administration of their agreement. If the Board were to
intervene and provide a different forum , without any
showing that the contracting parties have reached a result
HUGHES AIRCRAFT COMPANY 83
repugnant to the purposes of the Act, the Board would
needlessly risk "frustrating the Act's policy of promoting
industrial stabilization through collective bargaining."
Montgomery Ward & Co., 137 NLRB 418,423 (1962).
Greszler and Ouderkirk, in charging the Union with
unfair rejection of their revocation notices, should be in no
better position than they would have been if they had
followed the grievance and arbitration procedure, as
required by the agreement for the resolution of all such
complaints. If they had filed grievances, to complain about
either the general construction of the contractual checkoff
provisions, or the application of the rules of construction to
their individual situations, they would have been
permitted to attend the grievance meetings, along with
representatives of the Company and the Union. In the
event that the Union and the Company had not been
persuaded by their contentions (or they had not been
persuaded by the purportedly applicable arbitration
decisions), Greszler and Ouderkirk could have insisted on
arbitration. Then if the Union had refused to refer the
cases to arbitration, they could have raised the question of
whether or not the Union was providing them with fair
representation as their collective-bargaining representa-
tive. Undoubtedly, any applicable arbitration decisions
would have been material in determining the reasonable-
ness of the Union's conduct. Where, as here, the employees
have bypassed the exclusive machinery set out in the
agreement for resolving such contract disputes, the Board
should make no different requirement of fair
representation.
The General Counsel, having failed to prove any
violation of Greszler's and Ouderkirk's Section 7 rights, I
find that the Union has not violated Section 8(b)(1)(A) with
respect to them.
CONCLUSIONS OF LAW
1. By intentionally misleading Richard McHenry
concerning when to revoke his checkoff authorization,
causing him to submit untimely revocation notices, the
Union has engaged in an unfair labor practice affecting
commerce within the meaning of Sections 8(b)(1)(A) and
2(6) and (7) of the Act.
2. The Union did not violate Section 8(b)(1)(A) of the Act
by rejecting the checkoff revocation notices of
A. R. Greszler and Harry E. Ouderkirk.
THE REMEDY
Having found that the Respondent has committed an
unfair labor practice , I shall recommend that it be ordered
to cease and desist from such conduct and to take certain
affirmative action designed to effectuate the policies of the
Act.
[Recommended Order omitted from publication.]
298-668 0-69-7