Newport News Shipbuilding and Dry Dock Co.

National Labor Relations Board - Board Decisions

Dec 12, 1980

253 N.L.R.B. 721 (N.L.R.B. 1980)

NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY
Newport News Shipbuilding and Dry Dock Compa-
ny' and United Steelworkers of America and
Peninsula Shipbuilders' Association, Party to
the Contract
Peninsula Shipbuilders' Association 2 and United
Steelworkers of America and Newport News
Shipbuilding and Dry Dock Company, Party to
the Contract. Case 5-CA-10070 and 5-CB-
2894
December 12, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 10, 1980, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in
this proceeding. Thereafter, the General Counsel,
Respondent Employer, and Respondent Union filed
exceptions and supporting briefs.
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, find-
ings, 3 and conclusions 4 of the Administrative Law
Judge, but not to adopt his recommended Order.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that:
A. Respondent Newport News Shipbuilding and
Dry Dock Company, Newport News, Virginia, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
Herein called Respondent Employer.
2 Herein called Respondent Union.
' In fn. 37 of his Decision, the Administrative Law Judge recommend-
ed dismissal for lack of evidence of the allegation that Respondent Em-
ployer's unfair labor practices caused and/or prolonged a strike which
began on January 31, 1979. The record reveals, however, that during the
hearing in this case the Administrative Law Judge approved the General
Counsel's motion to withdraw that allegation of the complaint against
Respondent Employer. In fn. 14 of his Decision, the Administrative Law
Judge incorrectly stated that the instant complaints listed 214, rather than
213, employees. In fn. 39 of his Decision, the Administrative Law Judge
incorrectly stated that Appendix D to his Decision listed 63. rather than
66. employees. We therefore correct these inadvertent errors.
4 In adopting the Administrative Law Judge's conclusion that Re-
spondents violated the Act herein, we find it unnecessary to rely upon
previous cases decided by the Board where Respondents were found to
have committed unfair labor practices or upon the Administrative Law
Judge's characterizations of Respondents' conduct involved therein.
5 We have modified the Administrative Law Judge's recommended
Order to more accurately follow and remedy the actual violations found
and to add a provision requiring maintenance of any records necessary to
determine the amounts of money due to employees. We have also modi-
fied the Administrative Law Judge's notices to conform to our Order
253 NLRB No. 96
(a) Discouraging membership in the United
Steelworkers of America, or any other labor orga-
nization, and encouraging membership in the Pen-
insula Shipbuilders' Association, or any other labor
organization, by:
(1) Continuing to deduct union dues from the
wages of employees and transmitting those dues to
the Peninsula Shipbuilders' Association, or any
other labor organization, after employees have ef-
fectively revoked their dues-checkoff authoriza-
tions.
(2) Maintaining or enforcing a provision in a col-
lective-bargaining agreement which requires that
employees use a particular form in order to revoke
their dues-checkoff authorizations, where this re-
striction on revocation was not set forth in the
dues-checkoff authorizations signed by the employ-
ees.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action designed
to effectuate the purposes of the Act:
(a) Jointly and severally with the Peninsula Shi-
builders' Association reimburse the employees
named in Appendix C to the Administrative Law
Judge's Decision for any union dues deducted from
their wages after they effectively revoked their
dues-checkoff authorizations, with interest, in the
manner set forth in "The Remedy" section of the
Administrative Law Judge's Decision. [Appendix
C omitted from publication.]
(b) Jointly and severally with the Peninsula Ship-
builders' Association reimburse those employees
named in Appendix D to the Administrative Law
Judge's Decision who are determined to have ex-
ecuted effective revocations of their dues-checkoff
authorizations for any union dues unlawfully de-
ducted from their wages after they executed such
revocations, with interest, in the manner set forth
in "The Remedy" section of the Administrative
Law Judge's Decision. [Appendix D omitted from
publication.]
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, dues-checkoff authoriza-
tions, records of remittances to the Peninsula Ship-
builders' Association, and all other records and re-
ports necessary to analyze the amounts due under
the terms of this Order.
(d) Post at its place of business in Newport
News, Virginia, copies of the attached notice
721
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
marked "Appendix A." 6 Copies of said notice, on
forms provided by the Regional Director for
Region 5, after being duly signed by its authorized
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by it to insure that said notices
are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps it has taken to comply herewith.
B. Respondent Peninsula Shipbuilders' Associ-
ation, Newport News, Virginia, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Newport
News Shipbuilding and Dry Dock Company to
deduct union dues from the wages of employees
after the employees have effectively revoked their
dues-checkoff authorizations, or retaining any such
unlawfully deducted dues transmitted to it.
(b) Maintaining or enforcing a provision in a col-
lective-bargaining agreement which requires that
employees use a particular form in order to revoke
their dues-checkoff authorizations or requiring em-
ployees to appear in person at the union hall in
order to revoke their dues-checkoff authorizations,
where these restrictions on revocation were not set
forth in the dues-checkoff authorizations signed by
the employees.
(c) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the purposes of the Act:
(a) Jointly and severally with Newport News
Shipbuilding and Dry Dock Company reimburse
the employees named in Appendix C to the Admin-
istrative Law Judge's Decision for any union dues
deducted from their wages after they effectively
revoked their dues-checkoff authorizations, with in-
terest, in the manner set forth in "The Remedy"
section of the Administrative Law Judge's Deci-
sion.
(b) Jointly and severally with Newport News
Shipbuilding and Dry Dock Company reimburse
those employees named in Appendix D to the Ad-
ministrative Law Judge's Decision who are deter-
mined to have executed effective revocations of
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
their dues-checkoff authorizations for any union
dues unlawfully deducted from their wages after
they executed such revocations, with interest, in
the manner set forth in "The Remedy" section of
the Administrative Law Judge's Decision.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all dues-checkoff authorizations, dues payment
records, records of dues remittances from Newport
News Shipbuilding and Dry Dock Company, and
all other reports and records necessary to analyze
the amount due under the terms of this Order.
(d) Post at its offices and meeting halls copies of
the attached notice marked "Appendix B."7 Copies
of said notice, on forms provided by the Regional
Director for Region 5, after being duly signed by
its authorized officer or representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by it to insure that
said notices are not altered, defaced, or covered by
any other material.
(e) Sign and return to the Regional Director for
Region 5 sufficient copies of the attached notice
marked "Appendix B" for posting by Newport
News Shipbuilding and Dry Dock Company, if
willing, in conspicuous places, including all places
where notices to employees are customarily posted.
(f) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps it has taken to comply herewith.
7 See fn. 6, upra.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT continue to deduct union
dues from the wages of our employees and
transmit those dues to the Peninsula Shipbuild-
ers' Association, or any other labor organiza-
tion, after employees have effectively revoked
their dues-checkoff authorizations.
WE WILL NOT maintain or enforce a provi-
sion in a collective-bargaining agreement
722
NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY
which requires that our employees use a par-
ticular form in order to revoke their dues-
checkoff authorizations, where this restriction
on revocation was not set forth in the dues-
checkoff authorizations signed by our employ-
ees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL jointly and severally with Penin-
sula Shipbuilders' Association reimburse the
employees listed on the attached Appendix C
for any union dues deducted from their wages
after they effectively revoked their dues-
checkoff authorizations, with interest.
WE WILL jointly and severally with the
Peninsula Shipbuilders' Association reimburse
those employees listed on the attached Appen-
dix D who are determined to have executed
effective revocations of their dues-checkoff au-
thorizations for any union dues unlawfully de-
ducted from their wages after they executed
such revocations, with interest.
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT cause or attempt to cause
Newport News Shipbuilding and Dry Dock
Company to deduct union dues from the
wages of employees after the employees have
effectively revoked their dues-checkoff au-
thorizations, and WE WILL NOT retain any such
unlawfully deducted dues transmitted to us.
WE WILL NOT maintain or enforce a provi-
sion in a collective-bargaining agreement
which requires that employees use a particular
form in order to revoke their dues-checkoff
authorizations, and WE WILL NOT require
employees to appear in person at our union
hall in order to revoke their dues-checkoff au-
thorizations, where these restrictions on revo-
cation were not set forth in the dues-checkoff
authorizations signed by the employees.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the
Act.
WE WILL jointly and severally with New-
port News Shipbuilding and Dry Dock Com-
pany reimburse the employees listed on the at-
tached Appendix C for any union dues deduct-
ed from their wages after they effectively re-
voked their dues-checkoff authorizations, with
interest.
WE WILL jointly and severally with New-
port News Shipbuilding and Dry Dock Com-
pany reimburse those employees listed on the
attached Appendix D who are determined to
have executed effective revocations of their
dues-checkoff authorizations for any union
dues unlawfully deducted from their wages
after they executed such revocations, with in-
terest.
PENINSUI.A SHIPBUILDERS' ASSOCI-
ATION
DECISION
STATEMENT OF THE CASE
JOEl A. HARMATZ, Administrative Law Judge: This
consolidated proceeding was held before me in Hamp-
ton, Virginia, on December 17, 18, and 19, 1979, upon
original unfair labor practice charges filed on October
12, 1978, and a complaint issued in Case 5-CA-10070 on
January 12, 1979, which, as amended, alleged that Re-
spondent Employer Newport News Shipbuilding and
Dry Dock Company, herein referred to as the Shipyard,
violated Section 8(a)(l) and (3) of the National Labor
Relations Act, as amended, by continuing to check off
dues from the wages of certain employees and remitting
same to Respondent Union, Peninsula Shipbuilder's As-
sociation herein called PSA, following revocation by
said employees of dues-checkoff authorizations, and by
maintaining and enforcing a provision of the collective-
bargaining agreement between the Shipyard and PSA
pertaining to the revocation of checkoff authorizations.
Said complaint further alleged that a strike which com-
menced on January 31, 1979, was caused and prolonged
by the alleged unfair labor practices described above and
therefore was an unfair labor practice strike. Thereafter,
on July 2, 1979, a complaint issued in Case 5-CB-2894,
which, as amended, alleged that PSA violated Section
8(b)(l)(A) and (2) of the Act by statements made to em-
ployees that they would have to come to the union of-
fices in order to resign from membership in PSA, by tell-
ing employees that they would have to sign a form sup-
plied by PSA in order to resign from PSA membership,
by accepting and retaining dues remitted by the Shipyard
Company on behalf of employees who had informed
PSA of revocation of their dues-checkoff authorizations,
and by maintaining and enforcing a provision of its col-
723
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lective-bargaining agreement with the Shipyard pertain-
ing to the revocation of dues-checkoff authorizations. In
their respective duly filed answers, the Shipyard and
PSA deny that any unfair labor practices were commit-
ted. Following the close of the hearing, briefs were filed
on behalf of the General Counsel and PSA.'
Upon the entire record in this proceeding, including
my opportunity to personally and directly observe the
demeanor of the witnesses while testifying, and after
consideration of the post-hearing briefs, I make the fol-
lowing:
FINDINGS OF FACT
I. JURISDICTION
Respondent Newport News Shipbuilding and Dry
Dock Company, a Virginia corporation, is engaged from
its facilities in Newport News, Virginia, in the construc-
tion and repair of oceangoing vessels. During the 12-
month period preceding issuance of the complaint, a rep-
resentative period, said Respondent purchased and re-
ceived in interstate commerce materials and supplies
valued in excess of $50,000 from points located outside
the Commonwealth of Virginia.
The complaints allege, the answers admit, and I find
that at all times material herein said Respondent is, and
has been, an employer as defined in Section 2(2) of the
Act, engaged in commerce and in operations affecting
commerce as defined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaints allege, the answers admit, and I find
that United Steelworkers of America, herein called
USW, and PSA are, and have been at all times material
herein, labor organizations within the meaning of Section
2(5) of the Act. 2
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
Did the Shipyard violate Section 8(a)(3) and (1) of the
Act and the PSA violate Section 8(b)(l)(A) and (2) by
maintaining and enforcing provisions of their collective-
bargaining agreement compelling employees to effect
revocation of dues-checkoff authorizations on forms fur-
nished by PSA?
2. If not, in the circumstances did the Shipyard violate
Section 8(a)(3) and (1) of the Act by refusing to honor
revocation of dues-checkoff authorizations executed by
employees and by continuing to deduct dues from their
paychecks and remitting them to PSA, or was this action
Direct appearance on behalf of Respondent Shipyard in the instant
proceeding was limited to the first day of the hearing and confined to the
entry of certain stipulations and a statement of position. In a prior pro-
ceeding under Section 301 of the Act a United States District Court held
that the Shipyard was "entitled under the terms of the agreement to be
defended, and held harmless by PSA against any claim or liability arising
out of its action in deducting from the pay of such 158 members said
dues and paying same over to the PSA." Based thereon, the Shipyard
made no further appearance at the hearing and filed no post-hearing
brief.
2 The General Counsel's moves to correct the official stenographic
transcript is hereby granted.
lawful because these revocations were not on forms sup-
plied by PSA and hence not in the form required by the
existing collective-bargaining agreement.
3. Did a judgment of a United States District Court
pursuant to Section 301 of the Act upholding the legiti-
macy and enforceability of said provision in the collec-
tive-bargaining agreement constitute res judicata and
hence a bar to the instant proceeding?
B. Background
The instant cause is devoid of major factual conflict. It
emerges from an effort on the part of employees who
were members of an incumbent bargaining representa-
tive, PSA, to cancel financial support of that labor orga-
nization following a National Labor Relations Board
election in which a rival union, USW, was designated as
statutory representative on the basis of a majority of the
votes cast.
Historically, PSA had been the bargaining representa-
tive of some 19,000 production and maintenance workers
at the shipyard. During the period relevant to this pro-
ceeding, PSA and the Shipyard were parties to a collec-
tive-bargaining agreement effective from February 17,
1975, and subject to expiration on June 30, 1978. As Vir-
ginia is a "right-to-work state" that contract did not in-
clude provisions for compulsory union membership.
During the term of that agreement, USW opened an
organization campaign among the production and main-
tenance employees seeking to replace PSA as their repre-
sentative. As shall be seen infra, that campaign was
marred by unlawful conduct on the part of PSA and the
Shipyard, which, if failing to rise to the level of conspir-
acy, reflected their shared animus toward employees
who would abet the USW. Nonetheless, on January 31,
1978, an election was conducted with the USW receiving
9,093 votes to the PSA's 7,548. Objections to the election
were filed, but were overruled by the National Labor
Relations Board, which certified the USW as exclusive
representative on October 27, 1978.3
In the interim, namely, during February and March
1978, a number of PSA members who had voluntarily
authorized the Shipyard to deduct dues from their wages
and to remit them to that Union informed the Shipyard
that they wished to revoke their dues-checkoff authoriza-
tions and to curtail the Shipyard's remittance of dues to
PSA. Their intention in this respect was manifested in
writing on forms addressed to both PSA and the ship-
yard providing as follows:
This is to advise you that I am resigning my mem-
bership in the Peninsula Shipbu,.ders' Association
effective immediately and this is to advise Newport
News Shipbuilding and Dry Dock Company to dis-
continue deducting dues from my wages on behalf
3 239 NLRB No. 82. PSA and the Shipyard contested the certification
in the United States Court of Appeals for the Fourth Circuit where cer-
tain issues bearing upon the validity thereof were remanded to the Board
for further consideration. (594 F2d 8 (1979).) Thereafter, the Board reaf-
firmed its previous Order, upholding the Certification of Representative.
(243 NLRB 99 (1979).) On October 11, 1979, the United States Court of
Appeals for the Fourth Circuit enforced said Order requiring the Ship-
yard to recognize and bargain with the USW. (608 F.2d 108)
724
NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY
of the Peninsula Shipbuilders' Association as of this
date:
I have enclosed my membership card for cancella-
tion.
Name
Address
Soc. Sec. No.
Upon receipt of the foregoing, the Shipyard notified
PSA that it was its intention to comply. However, sec-
tion 23.2 of its collective-bargaining agreement with PSA
states that "revocation of such authorization shall be by
use of the form furnished by the Association (PSA)." 4
relying thereon, PSA informed the Shipyard that, since
the revocation notices were not on forms provided by
PSA, if the Shipyard honored them, PSA would sue the
Shipyard for breach of the collective-bargaining agree-
ment. The Shipyard complied with PSA's stated position
and thereafter continued to deduct dues from the pay-
checks of the employees involved and to remit them to
PSA.
Having advanced its view that the revocations were a
nullity, PSA informed all employees by mail who had at-
tempted to revoke as follows:
In order to resign from the Peninsula Shipbuilders'
Association, you will have to come by the office,
4306 Huntington Avenue, Newport News, Virginia,
and sign the only acceptable form required by the
contract and the Finance Division of Newport
News Shipbuilding.
The office is open Monday thru Friday from 8:00
a.m. to 4:30 p.m. as we have been for forty years.
Yours very truly,
R. M. Bryant, Sr.
Business Manager 5
PSA amplified its position in a document entitled
"Report to the Membership," dated February 21, 1978,
which included the following:
Q. Can a PSA member stop his or her dues by
sending a registered letter?
A. No. You must sign an authorized resignation
form at the PSA office, 4306 Huntington Ave.6
The initial attempt to revoke by some 213 employees
was ignored by PSA and the Shipyard for some 7-8
The text of sec. 23.2 is as follows:
Revocation of Check Off Authorization.
(a) Any such dues check off authorization shall not be for a period
of time greater than one year or the termination date of this Agree-
ment, whichever is the sooner. A revocation of such authorization
shall be by use of the form furnished by the Association (in dupli-
cate) and shall be delivered either to the Association or to the head
of the Company's Personnel and Industrial Relations Division. If
such revocation is to be effective upon the termination date of this
Agreement, it shall be delivered within the last fifteen (15) days of
the term of this Agreement
(b) The above-mentioned authorization, the receipt and notice of
cancellation shall be in form and substance satisfactory to the Com-
pany.
See G.C. Exh. 12.
6G C. Exhibit 13.
months. However, on October 18, 1978, the USW,
which had actually assisted the employees involved by
drafting the dues-checkoff revocation forms used by
them, filed unfair labor practice charges against both the
Shipyard and the PSA. Those charges specifically cited
both with unfair labor practices based upon the contin-
ued checkoff and remittance of dues to PSA in the face
of the revocations. Subsequently, on October 28, 1978,
when the National Labor Relations Board had certified
the USW, the Shipyard curtailed its remittal of dues to
PSA.
Having aborted checkoff as of that date, on November
16, 1978, a month after USW filed its charges, the Ship-
yard instituted a lawsuit in the United States District
Court for the Eastern District of Virginia pursuant to
Section 301 of the Act, naming PSA and 158 individual
employees as defendants. In that proceeding, the Ship-
yard sought declaratory "relief' as to its rights and obli-
gations with respect to the obstensibly conflicting posi-
tion taken by the 158 employees and the PSA concern-
ing the checkoff of union dues in the light of section 23.2
of the subsisting collective-bargaining agreement. That
proceeding came on before the Honorable Richard
Kellam, United States District Court judge. Because the
150 named employees-all of whom held a beneficial in-
terest in the pending unfair labor practice charges-failed
to plead or otherwise defend," they were held by the
court to be in default." 7 USW sought to intervene in that
proceeding, but said request was denied. Thereafter, the
NLRB sought to intervene solely to perfect a motion
that the proceeding be stayed until exhaustion of Nation-
al Labor Relations Board processes. s8 This too was
denied.
Prior to final disposition of the Section 301 action, a
complaint was issued on the unfair labor practice charges
on January 12, 1979, in Case 5-CA-10070 with respect
to the Shipyard, and on July 2, 1979, a complaint issued
on the charge against PSA in Case 5-CB-2894.
Thereafter, following a hearing held on September 18,
1979, the court on October 23, 1979, entered a judgment
in the 301 action which recited in material part as fol-
lows:
It is Ordered and Adjudged that the motion of
NLRB to intervene and to stay these proceedings is
DENIED; that Article XXIII of the Collective Bar-
gaining Agreement is valid and binding in this case,
and the 158 individual defendants were not excused
from complying therewith, and the continued de-
duction of dues and payment over to PSA was
proper; that plaintiff is indemnified and held harm-
less by PSA against any claim or liability arising out
of its action in deducting from the pay of such 158
members said dues and paying same over to PSA;
and costs in accordance with the Court's Opinion.
SeeGC Exh. 6.
8 In connection with the National Labor Relations Board's effort to
intervene, the Court was advised that the Board "could not take a posi-
tion on the merits, but only sought to stay the proceedings" Judge
Kellam, while ultimately denying intervention, afforded the Board "the
opportunity to present evidence, cross examine witnesses and file a brief."
725
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Controlling Authority Under the National
Labor Relations Act
Section 8(b)(l)(A) of the National Labor Relations Act
specifically preserves "the right of a labor organization
to prescribe its own rules with respect to the acquisition
or retention of membership therein." In addition, a provi-
so to Section 8(a)(3) of the Act, under stated conditions,
authorizes union-security agreements between employers
and labor organizations" to require as a condition of em-
ployment membership therein." On the other hand,
under the statute the manner in which an employee ful-
fills financial obligations to a labor organization is left to
his or her personal choice. Pursuant to the statutory
scheme, a dues-checkoff agreement between an employer
and labor organization is authorized, but in its implemen-
tation must comply with certain statutory conditions.
Foremost is the safeguard that the employee's participa-
tion be purely voluntary and free from compulsion.
The central reference to congressional design in this
area is found in Section 302 of the Act, the premise of
which is as follows:
It shall be unlawful for any employer or association
of employers or any person who acts as a labor re-
lations expert, advisor, or consultant to an employer
or who acts in the interest of an employer to pay,
lend, or deliver, or agree to pay, lend, or deliver,
any money or thing of value .... to any labor or-
ganization, or any officer or employee thereof
This broadly stated ban would include the checkoff of
union dues. However, an exemption therefrom is set
forth in Section 302(c)(4) which provides, in material
part, as follows:
The provisions of this section shall not be applicable
.. . with respect to money deducted from the
wages of employees in payment of membership dues
in a labor organization: Provided, That the employer
has received from each employee, on whose ac-
count such deductions are made, a written assign-
ment 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 ...
Congress specifically conferred jurisdiction on the
Federal courts to enforce Section 302 through criminal
sanctions. However, the options afforded employees
under that provision with respect to checkoff also are
protected under Section 8 of the National Labor Rela-
tions Act. Thus, the Board, with court approval, has
held "that the dues checkoff arrangement must be with
the employee's consent, and that an employer who
checks off union dues from an employee's pay and remits
the proceeds to the union without the employee's written
authorization violates Section 8(a)(2) and () of the Act."
N.L.R.B. v. Brotherhood of Railway, Airline and Steam-
ship Clerks, et al. [Yellow Cab Company], 498 F.2d 1105,
1109 (1974). And further, "if a union causes the employ-
er to deduct and remit dues after a valid revocation by
the employee of his dues authorization, it violates Section
8(b)(1)(A) and (2)." N.L.R.B. v. Atlanta Printing Special-
ties, 523 F.2d 783, 784-785 (5th Cir. 1975). Such viola-
tions also inure where employers continue to deduct
dues from the wages of an employee who has revoked
checkoff. See Merchants Fast Motor Lines, 171 NLRB
1444 (1968); Bedfbrd Can Manufacturing Corp., 162
NLRB 1428 (1967); Penn Cork & Closures, Inc., 156
NLRB 411 (1965), enfd. 376 F.2d 52 (2d Cir. 1967).
At this juncture, it is noted that the record in this pro-
ceeding establishes beyond contravention that certain of
the 213 employees named in the complaint, who had pre-
viously executed valid dues-checkoff authorizations, at-
tempted to revoke such authorizations in February and
March 1978. They acted by executing and forwarding
documents which contained clear and unambiguous dec-
larations of their intent in this regard to both the Ship-
yard and PSA. Notwithstanding the action of said em-
ployees, the Shipyard continued thereafter to deduct
PSA dues from the wages of the employees involved and
to remit same to PSA on the latter's threat to sue if the
revocations were honored.
Based upon the foregoing the General Counsel has es-
tablished prima facie that the Shipyard and PSA violated
the Act as alleged in the complaints. At least with re-
spect to this group, the sole defense available to Re-
spondents rests on their claim that the revocations failed
to conform with section 23.2 of the governing collective-
bargaining agreement, and hence were a nullity. The
findings in that connection by the United States District
Court are urged by the PSA as a bar to Board resolution
of the contract issue via the "Motion to Dismiss" dis-
cussed immediately below.
D. he Motion To Dismiss
The intervening judgment of the district court raises a
significant procedural question under the national labor
policy. Relying upon that adjudication, PSA, at the hear-
ing and again in its post-hearing brief, moved for dismiss-
al of this consolidated proceeding, arguing that "the facts
found by the court are resjudicata, and that the principal
of resjudicata and collateral estoppel preclude the Board
from proceeding further with these cases."
The doctrine of res judicata evolved from a desire to
bring an end to litigation by avoiding a duplicity of law
suits between the same parties with respect to the same
issues. Accordingly, a prior proceeding will constitute a
bar where the pending cause is possessed of all of the
following elements: () the parties are similar to those in-
volved in the prior case; (2) the cause of action is similar;
(3) the earlier proceeding culminated in a final judgment
by a court of competent jurisdiction; and (4) said judg-
ment was on the merits.9
By interposing the 301 action' ° as a bar, PSA has
"thumbed" an area of conflict under Federal labor policy
9 See, eg., Electric Expert, Inc., et al. v Levine, 554 F 2d 1227 (2d. Cir.
1977).
10 In material part, Sec. 301(a) of the Labor Management Relations
Act, 29 U SC §185(a), creates Federal jurisdiction for "suits for viola-
lion of contracts between an employer and labor organization . or be-
tween labor organizations"
726
NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY
which has yet to be clarified. Thus, the original unfair
labor practice charges were filed on October 18, 1978,
about a month before the Shipyard instituted said action
in the United States District Court. Those charges recit-
ed facts constituting prima facie violations of Section 8 of
the Act. For at the time it was established Board policy
"that the deduction of dues from an employee's pay after
the employee has validly revoked the checkoff authoriza-
tion constitutes a violation of. . . the Act." See, e.g., In-
dustrial Towel and Uniform Service, a Division of Cavalier
Industries, Inc., 195 NLRB 1121 (1972); Merchants Fast
Motor Lines, 171 NLRB 1444; Bedford Can Manufactur-
ing Corp., 162 NLRB 1428; Penn Cork and Closures, Inc.,
156 NLRB 411, enfd. 376 F.2d 52. Indeed, in a 1975 de-
cision by the United States Court of Appeals for the
Fifth Circuit, it was stated as follows:
Section 8(b)(l)(A) and (2) of the National Labor
Relations Act provides that it is an unfair labor
practice for a union to coerce employees in the ex-
ercise of their Section 7 right to refrain from union
membership, or to cause the company to discrimi-
nate against employees in regard to "any term or
condition of employment" in order to encourage or
discourage union membership. If a union causes the
employer to deduct and remit dues after valid revo-
cation by the employee of his dues authorization, it
violates Sections 8(b)(1)(A) and (2). I
Interestingly enough the factual assertions contained in
the original unfair labor practice charges were substanti-
ated in toto by the pleadings filed in the Section 301
action. Thus, the Shipyard's complaint alleged that "[t]he
158 Defendants [individual employees] sent letters of rev-
ocation of dues checkoff to Plaintiff," an averment ad-
mitted in the answer filed by PSA.' 2 Said complaint fur-
ther alleged that "Plaintiff [the Shipyard] did not discon-
tinue dues checkoff upon receipt of the letters of revoca-
tion . . . from the defendants [the individual employ-
ees]," a fact also admitted in PSA's answer. In its
"Prayer for Relief," the Shipyard requested of the dis-
trict court, inter alia, the following:
Declaring that Article 23 of the collective bargain-
ing agreement is valid and binding and that a letter
of revocation of dues checkoff must meet the ex-
press terms of Article 23.
Thus, from the outset of the Section 301 action it
should have been evident that the overarching issue in
the litigation in either the judicial or administrative
forumt 3 would turn on the propriety of the Shipyard
and PSA's defense predicated on section 23.2 of the
then-subsisting collective-bargaining agreement.
tl See NL.R.B. v Atlanta Printing Specialties, 523 F 2d 7X.13
i2 See G.C. Exh. 7, p. 6 and G.C Exh 8.
' To clarify the import of the contractual defense, it is noted that, if
the PSA's position with respect to sec. 23.2 were sustained dismissal of
both unfair labor practices charges would be required in their entirety
On the other hand. if the contractual defense is to be rejected, issues
would remain, but would be confined to individual employees and ques-
tions as to whether, apart from any contractual limitations, they effective-
ly manifested an intent to revoke For example, the section 301 complaint
also challenged revocations submitted by 44 defendants which did not
contain signatures, and which were challenged on that basis by PSA
In support of the claim of resjudicata, PSA in its brief
to the Administrative Law Judge recited as follows:
The 158 named defendants have had their opportu-
nity to present their grievances and charges against
the PSA and the Company in the District Court.
By failing to appear they have forfeited the right to
bring those charges now brought by the NLRB in
their behalf. The District Court specifically ruled
that "the 158 individual defendants were not ex-
cused from complying" with Article 23 of the col-
lective-bargaining agreement, which required the
use of PSA-supplied deduction revocation forms.'4
The claim that the adjudication before Judge Kellam is
binding upon the National Labor Relations Board is con-
tested by counsel for the General Counsel on a number
of grounds. For the reasons set forth below, that position
is sustained.
At the threshold is the fact that the issue of contract
interpretation was resolved in the United States District
Court without the procedural safeguards contemplated
by the unfair labor practice provisions of the National
Labor Relations Act. Though unfair labor practice
charges were then pending, neither the National Labor
Relations Board nor the Charging Party involved therein
were parties. The 158 employees named in the Section
301 suit as defendants whose beneficial interest in the dis-
pute had theretofore been asserted in the unfair labor
practice charges became obliged to defend that suit on
pain of default and under threat of an assessment of
court costs.
The initial question presented is whether the court's in-
tervention resulted in a conclusive determination fore-
closing administrative remedy as a matter of law. The
answer lies in the development of that aspect of the na-
tional labor policy which seeks to reconcile potential
conflict between the National Labor Relations Board and
the judiciary. Section 10(a) of the National Labor Rela-
tions Act is an appropriate opening reference. It provides
as follows:
The Board is empowered . . . to prevent any
person from engaging in any unfair labor practice
(listed in section 8) affecting commerce. This power
shall not be affected by any other means of adjust-
ment or prevention that has been or may be estab-
lished by agreement, law, or otherwise. 5
Consistent with Section 10(a), the Supreme Court,
prior to consideration of the degree to which Section
301 affected the overall regulatory scheme, preserved the
14 The instanlt complaint names 214 individual employees Including 56
not named as defendants in the District Court proceeding. One of the em-
ployees. C Vaughn, was deleted from the complaint by the General
Counsel because he had not authorized checkoff and dues had never been
forwarded to PSA in his behalf The group of 56 consisted of emplo)ees
who, after executing revocaion forms which did not conform to the col-
lective-bargaining agreement. later did so Nonetheless. the Shipyard did
not honor their initial revocations. It would seem that with respect to
them the proceeding under Sec 301 n which they were not named as
parties and had no cause to appear. could not be construed as re judicata
or binding under any concept
I See .%L. RB. v Acme Industrial Co , 385 US 432. 435-437 (1967)
727
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive, primary jurisdiction of the National Labor Re-
lations Board under the doctrine of preemption. Thus, in
San Diego Building Trades Council v. Garmon, 359 U.S.
236 (1959), the Supreme Court nullified jurisdiction of
state and Federal courts to regulate conduct "arguably
subject to Section 7 or 8 of the Act." This holding was
consistent with a prior assessment of the intent of Con-
gress underlying creation of the Board. Thus, in Joseph
Garner and A. Joseph Garner, v. Teamsters, Chauffeurs
and Helpers Local Union No. 776 (A.F.L.), 346 U.S. 485,
490-491 (1953), the Supreme Court stated as follows:
Congress did not merely lay down a substantive
rule of law to be enforced by any tribunal compe-
tent to apply law generally to the parties. It went
on to confide primary interpretation and application
of its rules to a specific and specially constituted tri-
bunal and prescribed a particular procedure for in-
vestigation, complaint and notice, and hearing and
decision, including judicial relief pending a final ad-
ministrative order. Congress evidently considered
that centralized administration of specifically de-
signed procedures was necessary to obtain uniform
application of its substantive rules and to avoid
these diversities and conflicts likely to result from a
variety of local procedures and attitudes toward
labor controversies.... A multitude of tribunals
and diversity of procedures are quite as apt to pro-
duce incompatible or conflicting adjudications as
are different rules of substantive law. The same rea-
soning which prohibits federal courts from interven-
ing in such cases, except by way of review or on
application of the Federal Board, precludes State
courts from doing so.
Subsequently in Amalgamated Association of Street,
Electric Railway & Motor Coach Employees of America, et
al. v. Lockridge, 403 U.S. 274, 288 (1971), the Supreme
Court again stated as follows:
The rationale for preemption . . . rests in large
measure upon our determination that when it set
down a federal labor policy Congress plainly meant
to do more than simply to alter the then-prevailing
substantive law. It sought as well to restructure fun-
damentally the processes for effectuating that
policy, deliberately placing the responsibility for ap-
plying and developing this comprehensive legal
system in the hands of an expert administrative
body rather than the federalized judicial system.
Notwithstanding the above, under controlling authori-
ty the intervention of the district court on the basis of
jurisdiction conferred by Section 30116 in connection
with the instant unfair labor practice charges, was inof-
L' In material part, Sec. 301(a) of the Labor Management Relations
Act, 29 U.S.C §185(a), states as follows:
Suits for violation of contracts between an employer and a labor or-
ganization representing employees in an industry affecting commerce
as defined in this chapter, or between any such labor organizations,
may be brought in any District court of the United States having ju-
risdiction over the parties, without respect to the amount in contro-
versy or without regard to the citizenship of the parties.
fensive to the established view of preemption. For that
concept has been deemed inapplicable to Section 301
suits with the National Labor Relations Board and the
Federal courts having concurrent authority with respect
to disputes arising under collective-bargaining agree-
ments even where conduct arguably protected or prohib-
ited by the Act may be involved. In reaffirming this po-
sition in Smith v. Evening News Association, 371 U.S. 195
(1962)'7 The Supreme Court acknowledged the possibil-
ity of substantive conflicts arising from dual jurisdiction,
but with respect to such possibility simply stated, "[W]e
shall face those cases when they arise." 18 Historically,
such conflicts have been avoided by discretionary action
on the part of the judiciary whereby lawsuits are stayed
pending disposition by the National Labor Relations
Board of the unfair labor practices. However, the district
court elected to proceed with the matter at hand, there-
by raising the question as to whether its decision should
be deemed binding upon the interest asserted by the
USW under Section 8 of the Act in this consolidated
proceeding. In my opinion to answer this question in the
affirmative is to sanction a major frustration of the spe-
cific congressional scheme for redress of violations of
Section 8 of the Act. Thus, the definition of the means
by which unfair labor practices are to be determined and
remedied was relieved of significant procedural strictures
and accompanied by specific substantive standards with
the Board enpowered to proceed on behalf of employee
interests without need for the latter to draw on their
own personal resources to perfect their statutory rights.
In contrast with the specific rights and obligations en-
trusted to the National Labor Relations Board, Section
301 of the Act entailed a delegation of jurisdiction upon
the Federal courts without an accompanying express
substantive declaration.'9 To account for the missing in-
gredient, the Supreme Court stated as follows: "The sub-
stantive law to apply in suits under Section 301(a) is fed-
eral law which the courts must fashion from the policy
of our National Labor Laws." See Textile Workers Union
17 See also Local 174. Teamsters. Chrauffeurs. Warehousemen and Help-
ers of America v. Lucas Flour Co., 369 U.S. 95 (1962), Dowd Box Co., Inc.
v Courtney, 368 U.S. 502 (1962); Atkinson v. Sinclair Refining Co., 370
U.S. 238 (1962)
18 371 U.S. at 199. In appreciating the proper role of Sec. 301 in the
overall formulation of the national labor policy, it ought not be over-
looked that the development of concurrent jurisdiction in the Federal
courts to enforce collective-bargaining agreements in such cases as Smith
v. Evening News, supra, was not without the Board's blessing As pointed
out by the Supreme Court in that case, it was the view of the National
labor Relations Board that "ousting the courts of jurisdiction under Sec-
lion 301 . would not only fail to promote, but would actually ob-
struct, the purposes of the Labor Management Relations Act." Obvious-
ly, to apply preemption to disputes concerning contract interpretation
and enforcement would require exhaustion of all administrative remedies
before simple relief in the form of specific performance could be obtained
in the courts, redress which is not necessarily within the National Labor
Relations Board's remedial arsenal. Substantial delays in the realization of
ordinary contract benefits and enforcement of arbitration agreements
could be expected under such an approach
a' The absence of a specific definition of substantive law applicable
under Section 301 was viewed initially as raising serious constitutional
question as to whether Federal jurisdiction could rightfully attach under
such a delegation See, e.g. Asociation of Westinghouse Salaried Employ-
ees v. Westinghouse Eleciric Corp., 346 U.S. 437 (1955)
728
NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY
of America v. Lincoln Mills of Alabama, 353 U.S. 448, 456
(1957).
With all that has been said by the Supreme Court over
the years with respect to special administrative compe-
tence, it seems only logical that the specific substantive
law, remedies, and procedures entrusted to the National
Labor Relations Board ought to take precedence over
the undefined interpretative process under which the
Federal courts function pursuant to jurisdiction con-
ferred by Section 301. Moreover, persuasiveness of this
view is enforced when one considers the degree to
which public rights were considered in the court pro-
ceeding. Both the National Labor Relations Board and
the USW were barred from intervention therein. On the
face of the pleadings, it was apparent that PSA and the
Shipyard were allied in interest with respect to the issue
of contract interpretation. In that posture, the burden of
opposing the collective view of PSA and the Shipyard
was thrust upon 158 employees. They made no formal
appearance nor did they enter a plea, and 156 of them
were held in default. 20 This was hardly surprising when
one considers that, while the pecuniary interest of none
exceeded $88, effective participation would have re-
quired retention of counsel and a loss of worktime.
Without questioning the bona fides of the intentions
behind the 301 suit, the fact remains that said proceeding
entailed a short circuiting of the remedial procedures
which Congress had enacted for the protection of em-
ployee interests. The complaint filed in that proceeding
stated as follows: "The position on the 156 defendants is
that any letter requesting revocation of dues checkoff is
valid and that such a letter need not be on a form fur-
nished by the PSA." (See G.C. Exh. 7) That position
was fundamental to and the predicate for the unfair labor
practice charges which had previously been filed before
the National Labor Relations Board. Yet, the 158 indi-
vidual employees were summoned to court as defendants
in a lawsuit initiated by their Employer after the remedi-
al process of the National Labor Relations Board had
been invoked, a result which might have discouraged
their cooperation with respect to the National Labor Re-
lations Board charges then under investigation. 2t
In any event, it is not entirely clear that the court's de-
cision in any way interfered with the pending unfair
labor practice charges. The offiqial transcipt of that pro-
ceeding reflects the court's sensitivity to that possibiliy
and a desire to avoid it. 2 2 The Shipyard plainly repre-
sented that there would be no conflict if Judge Kellam
asserted jurisdiction and, while PSA was ambivalent,
10 Of the 158 individual employees named as defendants in the district
court action 2 appeared as witnesses.
21 The spectre of collusion by PSA and the Shipyard to the detriment
of the employees was suggested at least in one respect in the Section 301
action. Thus, an "Order on Pre-Trial Conference" was signed by Judge
Kellam on August 31 1979. (See GC. Exh 9.) In that document PSA
and the Shipyard entered a number of stipulations, including the follow-
ing:
That none of the 158 individuals by their actions and/or their inten-
tions intended to revoke their dues deduction authorizations.
While that stipulation would lessen any sympathetic aura surrounding
the interest of the employees, its foundation in fact is undisclosed. and the
accuracy thereof was refuted by overwhelming testimony by individual
employees on the instant record
22 See G.C Exh 5
certain remarks made on behalf of the latter were sub-
stantially similar. Further, the formal opinion issued by
the court does not disclose a clear desire on its part to
dispose of the unfair labor practice issue in resolving the
contractual question. For the only reference therein to a
possible violation of the National Labor Relations Act
appears in the discussion of Felter v. Southern Pac.fic Co.,
et al., 359 U.S. 326 (1959), 23 in which the Supreme
Court held that a contractual checkoff requirement simi-
lar to that set forth in section 23.2 was unlawful under
the Railway Labor Act. 24 From my reading of the
court's decision no intention was expressed to resolve the
question as to the validity of the contract under Section
302(c)(4) pursuant to the Supreme Court's holding in
Felter, supra. Instead, it simply pointed out that said issue
had not been raised by any party having standing to do
so in the Section 301 proceeding. Indeed, the statement
in the opinion to the effect that, "if any employee was
here asserting such a position, the issue might be differ-
ent," plainly suggests that the court had no intention to,
and did not, determine the lawfulness of section 23.2
under Section 8 of the Act.
In sum, I find that, consistent with the arguments ad-
vanced by PSA and the Shipyard in the Section 301
action, the issue resolved in that proceediing was one of
contract interpretation binding solely with respect to
contractual remedies available to the parties to the agree-
ment and the beneficiaries thereof. The court was not re-
quested nor does it appear that it purported to decide the
question as to whether section 23.2 of the PSA-Shipyard
agreement on its face, or the practice thereunder, was an
unfair labor practice within the meaning of Section 8 of
the National Labor Relations Act. As such, that determi-
nation, although perhaps res judicata to a Section 301
action by any employee named as a defendant in that
cause, is entitled to no weight in this unfair labor prac-
tice proceeding involving charges brought by the USW
and prosecuted by the General Counsel of the National
Labor Relations Board, neither of whom were parties in
the Section 301 action. Simply stated, the cause of action
presently in issue arises in a procedural atmosphere dis-
tinct from that envisioned by Section 301 and is to be re-
solved within the realm of express congressional stand-
ards which were not invoked in the proceeding before
the district court. Accordingly, PSA's motion to dismiss
the complaints based on res judicata is denied as lacking
in merit.
E. Concluding Findings With Respect to the Defense
Amendments to the complaints in this proceeding spe-
cifically place under interdict section 23.2 of the collec-
tive-bargaining agreement. Thus, said provision is chal-
lenged on its face as having been unlawfully maintained
and enforced.
23 See G.C Exh. 6.
24 The above case was cited by the National Labor Relations Board in
its brief to Judge Kellam in support of its motion for leave to intervene
and to stay the Sec. 301 proceeding Said authority was offered in sup-
port of the Board's contention that the district court's ajudication of the
issue could "impair" the Board's responsibility for preventing the unfair
labor practices See G C. Exh. 20, p 4.
729
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated, while requiring revocations to be effect-
ed on PSA forms, said contract fails to specify where or
under what circumstances PSA was to make such forms
available to employees. Apparently, such matters, by
virtue of the contract, were reposed to the discretion of
PSA.
For reasons which should be obvious, the right of a
labor organization and an employer to negotiate the pro-
cedures for checkoff revocation is carefully scrutinized
under the precedent. The assignment of wages for the
purpose of paying dues to a labor organization is akin to
a contractual relationship in which the employer assumes
the status of an agent for the purpose specified in the em-
ployee's executed dues-checkoff authorization. The
Union is simply a beneficiary and not otherwise a party
thereto.
The original dues-checkoff authorizations executed
herein included no limitations on the right of employees
to revoke, but simply stated as follows:
Your authority to make the above-mentioned de-
ductions shall remain in force and effect until re-
voked by me in writing.
Thus, section 23.2 of the collective-bargaining agreement
engrafted an additional condition on revocation beyond
that specified in the original delegation of authority.
Such action under the cloak of collective bargaining
would offend ordinary principles of agency and raise
concern under the common law as to the propriety of an
agent's, without consent of the principal, establishing
conditions upon the duration of conferred authority. Yet,
the National Labor Relations Act is even more graphic
in stressing isolation of employee interests from those of
an employer and union in the area of checkoff. Underly-
ing Section 302 is a clear congressional intent to strike at
corrupt practices between the parties to a bargaining re-
lationship. Accordingly, employee freedom of choice
with respect to wage assignments for the payment of
dues, as protected by Section 302(c)(4), if viewed as sub-
ject to substantive limitation through the bargaining
process, would mock clear congressional mandate as
leaving the proverbial henhouse to the guard of the fox.
Examination of Board and judicial precedent evidences
that contractual limitations on the employee rights in this
area are dimly viewed to say the least. Thus, a court has
held that a bargaining agreement furnished no defense to
unfair labor practice allegations predicated upon an em-
ployer's failure to honor revocations which would have
been timely under a literal application of a contract.25
Further, in Cameron Iron Works, Inc., 235 NLRB 287
(1978), the employer and the union negotiated a dues-de-
duction provision which required employees seeking to
revoke his or her dues-checkoff authorization to give
written notice to the union as well as the company. The
employees, though notified of this requirement, neglected
to do so, choosing instead to simply inform the company
in writing of their desire to revoke. The company contin-
ued to deduct dues from their wages and to remit them
to the union. The Board held that the employer violated
Section 8(a)(l) and (3) and that the union violated Sec-
25 N. LR.B. v. A tlanta Printing Speclalties, 523 F2d 713
tion 8(b)(1)(A) and (2), stating that a collective-bargain-
ing agreement may not modify the revocation procedure
without the consent of the individual employees. 26
However, the case which focuses most directly upon
the contractual defense raised here is Felter v. Southern
Pacific Company, 359 U.S. 326. That case arose under the
Railway Labor Act, which, like the National Labor Re-
lations Act, authorizes dues-checkoff agreements subject
to the provision "[t]hat no such agreement shall be effec-
tive with respect to any individual employee until he
shall have furnished the employer with a written assign-
ment to the labor organization . . . which shall be revo-
cable in writing after the expiration of one year." 2 7 The
issue in Felter arose in connnection with a contract nego-
tiated between a union and rail carrier which, as here,
required revocation to be effected on forms supplied by
the union. The question before the Court in that case re-
lated to "the validity of the contract, not its meaning." 28
The dispute arose when an employee, in writing, notified
both the union and the carrier that he was revoking his
dues-checkoff authorization. The carrier declined to
honor the revocation because it was not on the form pro-
vided by the union. The Court addressed the question as
to the authority of an employer and a labor organization
to negotiate restrictions on the rights afforded employees
to revoke checkoff, stating at 333:
[C]arriers and labor organizations are authorized to
bargain for arrangements for a checkoff by the Em-
ployer on behalf of the organization. Latitude is al-
lowed in the terms of such arrangements, but not
past the point such terms impinge upon the freedom
expressly reserved to the individual employee to
decide whether he will authorize the checkoff in his
case. Similarly Congress consciously and deliberate-
ly chose to deny carriers and labor organizations
authority to reach terms which would restrict the
employee's complete freedom to revoke an assign-
ment by writing directly to the employer after I
year. Congress was specifically concerned with
keeping these areas of individual choice off the bar-
gaining table. It is plainly our duty to effectuate this
obvious intention of Congress, and we must there-
fore be careful not to allow the employees' freedom
of decision to be eroded in the name of procedure,
or otherwise. We see no authority given by the Act
2 [l'nfolrcement of the Board's Order as denied 591 F2d I (5th Cir
197X) he Fifth Circuit viewed the additional notice requirement pre-
scrihed in the cllectiite-harganinig agreement as a "nonburdeinsome pro-
cedural requirement" which did not infringe "seriously upon the employ-
ecs revocatilin rights or options" I agree with the General Counsel that
the istant case is distinguishable (aneron involved a clear and unambi-
guious conltracual requirement setting frth (n its face the obligation of
the emnployee in clear unmistakable language The court's view that it im-
posed a procedural and nonhurdenoome obligation was hardly untenable.
Here, however, the procedures to be followed by employees to perfect
their rocatiotns was not apparent on the face of the contract, which
was silet as to where and when the PSA forms could be obtained It
was rnl after their revocations had been executed and transmitted that
'SA. apparently unilaterally, added the additional requirement that revo-
catini could be effected only upon pcrsonal appearance at PSA's head-
quarters.
See 45 i SC §152, I-leventh(h)
359 U S at 327. f 3
730
NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY
to carriers and labor organizations to restrict the
employees individual freedom of decision by such
regulations as were agreed upon in the Dues De-
duction Agreement. The question is not whether
these restrictions might abstractly be called "reason-
able" or not. 2 9
Although the above was preceded by a discussion of
the legislative history behind this 1951 addition to the
Railway Labor Act, there is no suggestion that this
aspect of the Railway Labor Act, and the underlying
congressional purpose, varied from that which had been
embodied 4 years earlier in Section 302 of the National
Labor Relations Act. No argument has been made nor
evidence cited evincing that Congress viewed the right
of dues-checkoff revocation to be more vulnerable to
collective bargaining under the National Labor Relations
Act than the Railway Labor Act. Indeed, the Court in
Felter included a strong suggestion that its reasoning
would extend with equal force beyond air and rail trans-
port to other industries. Thus, the Court observed that
the same three United States Senators who had expressed
a desire that checkoff conditions under the Railway
Labor Act be in general accord with "checkoff condi-
tions of employees of other industries" were instrumental
in the amendment to the Taft-Hartley Act "which re-
stored to the Senate version of that Act the provision for
individual option on the checkoff. . . now found in Sec-
tion 302(c)(4) of that Act." The Court expressly stated
that "the provision finally enacted in the Railway Labor
Amendment was quite similar to that of the Taft-Hartley
Act." 3 0
Indeed, at least one court has viewed the rationale of
the Supreme Court in Felter as controlling with respect
to such issues as they might arise under the National
Labor Relations Act. See N.L.R.B. v. Atlanta Printing
Specialties, 523 F.2d 783.
In my opinion, Felter is dispositive of the issue as to
the legitimacy of section 23.2 of the collective-bargaining
agreement,31 and, based thereon, I find that, by main-
taining and enforcing that agreement, the Shipyard vio-
29 It should be observed that F'elter did not foreclose the parties to a
bargaining relationship from acting "to minimize the procedural prob-
lems" arising under checkoff Thus, it was expressly stated at 359 U.S
334-335 that
Carriers and labor organizations may set up procedures through the
collective bargainingl agreement for processing, between them-
selves, individual assignments and revocations received, and carriers
may make reasonable designations, in or out of collective bargaining
contracts, of agents to whom revocations may be sent. Revocations
after all, must be sent somewhere And doubtless forms may be es-
tablished, by way of suggestion, and means for making them availa-
ble set up.
Nonetheless, the Court concluded that the requirement that revocation
be effected only on forms provided by the union was "made mandatory,"
and imposed "requirements over and above what we can perceive to be
fairly those of the statute"
ao 359 U.S. at 332-333, fn. 10.
a In finding that the contractually specified requirement was unlawful,
the Court rejected contentions that the requirement was necessary to pre-
vent fraud and forgery, to avoid disputes as to the authenticity of revoca-
tion instruments, and to protect an employee from himself and outside
undue influence from a rival labor organization he Court also rejected
the contention that, as a member of the contracting union, the employee
was barred by the action of its bargaining representative in negotiating
that ondition.
lated Section 8(a)(3) and (1) of the Act and PSA violated
Section 8(b)(1)(A) and (2).
Nonetheless, even were section 23.2 to be viewed as
establishing a legitimate requirement, its application in
the circumstances of this case would be deemed unlaw-
ful. Here, the record establishes that PSA revocation
forms were never provided to the Shipyard's personnel
or finance offices to facilitate employee access to such
forms. In addition, according to the testimony of
Andrew Harris, executive assistant business agent of
PSA, revocation forms were not held by PSA delegates
or stewards for distribution to members who wished
them. Furthermore, neither the PSA constitution nor its
bylaws make any reference to the circumstances govern-
ing the withdrawal or revocation of checkoff. Indeed,
Harris testified that the only document in writing which
set forth the Union's policy with respect to revocation is
the collective-bargaining agreement with the Shipyard.
Indeed, prior to the 1978 insurgence of revocation ac-
tivity it does not appear that the Shipyard or PSA pub-
lished any information as to how PSA revocation forms
could be obtained or where. Insofar as this record dis-
closes the first such notification took place through PSA
letters addressed solely to the employees who previously
had clearly, and in writing, manifested their desire to
revoke checkoff. Those letters stated that "the only way
you can get one of these forms is to come to the PSA
office." Thus, in this case, the impediment to the statu-
torily guaranteed right of free choice with respect to
dues-checkoff revocation was aggravated by three addi-
tional elements. First, there was no general distribution
or convenient access to PSA revocation forms. Second-
ly, prior to revocation activity, there does not appear to
have been any formal notification to employees as to the
procedures they were required to follow to obtain such
forms.32 And, finally, employees could only perfect this
right through personal appearance at the PSA hall.
The requirement that employees appear in person at
PSA headquarters was not specifically authorized by the
applicable collective-bargaining agreement. Since PSA
revocation forms were not available in the Shipyard's of-
fices but only at PSA headquarters it is difficult to imag-
ine that the Shipyard at times material was unaware of
this requirement. In any event, the Shipyard's having
delegated responsibility to the PSA in connection with
procedures for obtaining such forms is fully responsible
under the Act in this regard.
There can be little quarrel with the assumption that a
requirement that employees appear in person at a union
hall in order to revoke checkoff would impose, inherent-
a2 As stated in felder, 359 U.S. at 33:
And equally lacking in merit is the suggestion that the requirement
of a . . . furnished form is so trivial as to make a whole controversy
de minimis . Additional paper work or correspondence, after he
once has indicated his desire to revoke in writing, might well be
some deterrent . to the exercise of free choice by an individual
worker When one considers the problem in its industrial setting and
recalls the fact that individual workmen are not as equipped for and
inclined to correspondence as are business offices, any complication
of the procedure necessary to withdraw the addition of any extra
steps to it may be burdensome. That involved here may deter em-
ployees from taking an action they might have taken if no prelimi-
nary contact with their lodge was necessary.
731
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly, an unconscionable impediment to the free choice con-
ferred by Section 302(c)(4) of the Act. Quite obviously,
where revocation of checkoff is concerned "the interest
of the employees and the union are in direct conflict."3 3
In this case, however, that conflict is inflamed by PSA's
history of unlawful abuses to employees who supported
other labor organizations or who simply declined to sup-
port PSA. 3 4
The unlawful conduct of PSA during the period prior
to the election of January 31, 1978, is chronicled in deci-
sions of the National Labor Relations Board. In Newport
News Shipbuilding and Dry Dock Company, 236 NLRB
1499 (1978), PSA's initial effort to prevent a raid by
USW upon the production and maintenance unit was
found to have been reinforced unlawfully by the Ship-
yard. In that case unfair labor practices were found
against PSA and the Shipyard for various acts of coer-
cion against employee supporters of the USW, including
discrimination. Later in the spring of 1977, PSA's coer-
cion to discourage support of the USW was extended
through various threats uttered to supporters of the
latter. See Peninsula Shipbuilders' Association (Newport
News Shipbuilding and Dry Dock Company), 237 NLRB
1501 (1978). Physical violence was added to the means
by which PSA sought to combat USW in Peninsula Ship-
builders' Association (Newport News Shipbuilding and Dry
Dock Company), 239 NLRB 831 (1978).3 5
Accordingly, even if section 23.2 of the collective-bar-
gaining agreement be deemed lawful on its face, the ad-
ditional restriction imposed by PSA was without sanc-
tion of collective bargaining and could not be recognized
as a legitimate basis for nullifying the unequivocally ex-
pressed intention of employees herein to exercise their
revocation rights conferred in Section 302(c)(4). Accord-
ingly, by continuing to check off and remit the dues of
employees who had in writing manifested their intention
to revoke the assignment of wages, the Shipyard violated
3a See NL.R.B. v. Brotrherhood of Railway, Airline & Steamship Clerks,
etc., 498 F.2d at 1109.
34 The record also attests to the inconvenience to certain employees of
such a requirement. Thus, as communicated to them, PSA headquarters
maintained office hours from 8 a.m. to 4:30 p.m. The Shipyard operates
on a three-shift basis, with some 10,000 employees assigned to the 7 a.m.
to 4 p.m. shift; some 2,000 to 3,000 employees on the 4 pm. to 12 mid-
night shift and approximately 5,000 employees on the II1 pm. to 7 a.m.
shift. The PSA office is located approximately one-half to three-quarters
of a mile from the south gate of the Shipyard and approximately 1.3
miles from the northernmost gate. Thus, under the requirement imposed
by PSA, employees not only were required to enter a potentially hostile
environment to curtail financial support of PSA but many had to do it on
their own time A conflict in testimony that the PSA office was closed
frequently during the 12 noon to I p.m. lunch period and after the close
of work need not be resolved.
'5 PSA's propensity to violate the Act in order to preserve its repre-
sentational interest is evident from earlier Board cases as well. See, e.g.,
Peninsula Shipbuilders' Association, Case 5-CA-1734 (January 27, 1976)
where the Board, in the absence of exceptions thereto, adopted an Ad-
ministrative Law Judge's finding that PSA representatives and agents
violated Sec. 8(b)(1)(A) by threats against employees engaged in activity
on behalf of International Association of Machinists, a labor organization
attempting to organize the Shipyard's employees. See also Newport News
Shipbuilding and Dry Dock Company, 233 NLRB 1443 (1977), involving
coercion in the form of threats and discrimination through which the
Shipyard and PSA collaborated to discourage activity on behalf of
Marine Industrial Transportation Union of America. That case docu-
ments PSA's attitude toward those inclined to withhold financial support
and membership in PSA.
Section 8(a)(3) and (1) of the Act.3 6 It is further found
that PSA violated Section 8(b)(l)(A) and (2) of the Act
by causing the Shipyard to remit dues deducted from the
wages of employees who had previously manifested their
revocation of such arrangements and by accepting and
retaining said sums.3 7
CONCLUSIONS OF LAW
1. Respondent Shipyard is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The PSA and the USW are labor organizations
within the meaning of Section 2(5) of the Act.
3. Respondent Shipyard violated Section 8(a)(3) and
(I) of the Act by maintaining and enforcing a provision
of its collective-bargaining agreement with the PSA re-
stricting employees from exercising their right to revoke
checkoff to the use of forms supplied by PSA and by
continuing to check off union dues to PSA after receiv-
ing clear and unambiguous revocations from said em-
ployees.
4. Respondent PSA violated Section 8(b)(l)(A) and (2)
of the Act by maintaining and enforcing section 23.2 of
its collective-bargaining agreement with Respondent
Shipyard, by causing Respondent Shipyard to continue
to remit the dues of employees who had revoked their
dues-checkoff authorizations, and by receiving and re-
taining dues submitted unlawfully with respect to these
employees.
5. The aforesaid unfair labor practices are unfair labor
practices afffecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Shipyard and Respond-
ent PSA have engaged in certain unfair labor practices,
it shall be recommended that said Respondents be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent Shipyard and Respond-
ent PSA violated the Act with respect to the checkoff
and remittance of union dues, it shall be recommended
that they jointly and severally reimburse employees for
moneys deducted from their wages for such purposes
after their execution of valid revocations, with interest as
prescribed in Florida Steel Corporation, 231 NLRB 651
(1977).38
36 There is no merit in the contention that employee revocations
which were executed by printed, rather than script, signature were inval-
id Where properly authenticated, the revocation is not invalidated on
this ground. The Shipyard honored dues-checkoff assignments with print-
ed signatures (see G.C. Exhs. 3(19), (47). (65), (105), (153), (163), and
(172), and otherwise valid revocations should stand in no lesser stead.
Any possibility of untoward conduct with respect to such revocations
could have been ascertained by the Shipyard by simple inquiry
37 The record does not address the relationship between the unlawful
conduct found herein and the strike which commenced on January 31,
1979. Accordingly, the allegation that said strike was "caused or pro-
longed" thereby is unsubstantiated and shall be dismissed
3" See, generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962).
732
NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY
The General Counsel also requests that PSA and the
Shipyard be required to mail copies of the notice post-
ings to all employees in the production and maintenance
unit. Taking into account the practical realities, it is my
view that such a remedial requirement would impose a
burden unjustified by remedial interests. While fully
aware of the history of recidivist conduct on the part of
PSA and the Shipyard, the United Steelworkers of
America is now the exclusive representative of the em-
ployees in said unit, and it does not appear that the Ship-
yard currently recognizes PSA as the representative of
any of its employees. Thus, the possibility of repeat in-
trusions upon employee freedom of choice with respect
to checkoff by the parties is sufficiently remote to place
the expense of individual mailing to upwards of 16,000
employees in the category of the disproportionate and
punitive. In all the circumstances, conventional posting
by the Shipyard and PSA is viewed as adequate to vindi-
cate the purposes and the policies of the Act herein. 39
On the basis of the foregoing findings of fact, conclu-
sions of law, and upon the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER4 0
A. Respondent Newport News Shipbuilding and Dry
Dock Company, Newport News, Virginia, its officers,
agents, successors, and assigns, shall:
a9 Appendix D attached hereto lists some 63 employees, all named in
the complaint, but none of whom appeared to authenticate their revoca-
tions As I indicated at the hearing, any rights acquired by this group
with respect to the violations herein established were not prejudiced by
their failure to appear, as any benefits accruing to them by virtue of the
remedy herein provided may be established during the compliance stages
of this proceeding. See, e.g., Industrial Towel and Uniform Service, a Divi-
sion ofCavalier Industries, Inc., 195 NLRB 1121, 1122 (1972).
In the course of hearing, the General Counsel deleted C E Vaughn
from the complaint, and withdrew revocations purportedly executed by
Robert E. Acree, S. R. Crockett, Alexander Thomas, Jr, and Michael H
Conway. Those withdrawals are deemed with prejudice, and the com-
plaints are dismissed insofar as they allege violations as to these four indi-
viduals.
Everett C. Neel authenticated his revocation, acknowledging that he
forwarded the same to both the Shipyard and PSA. However, when
questioned as to why he did not go to the PSA hall to revoke after re-
ceipt of G.C. Exh. 12, he indicated that he did not wish to quit PSA until
he could find out about the "other union," as the matter could still go
either way A violation is found in his case. The Shipyard received his
unambiguous revocation, and whatever Neel's reservations, they were
communicated to no one and fail to alter his expressed intent. However,
the complaints shall also be dismissed insofar as they allege violations
with respect to James Dixon. The latter credibly testified that he for-
warded his personally completed revocation to both PSA and the Ship-
yard, but it is the sense of his testimony that he was under a disability at
the time and believed that said document had been furnished by PSA to
excuse its members from further financial support. Dixon related that had
he understood the meaning of the revocation he would not have executed
it, and that he informed PSA as to the foregoing. In the circumstances,
although the issue is not free from doubt, I am inclined to find that the
Shipyard did not violate the Act in dishonoring the revocation filed
under such circumstances. In any event, no remedy would be warranted
in Dixon's case.
40 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and ll objections thereto
shall he deemed waived for all purposes
1. Cease and desist from:
(a) Discouraging membership in the United Steelwork-
ers of America, or any other labor organization, by con-
tinued checkoff of membership dues to Peninsula Ship-
builders' Association, or any labor organization, after
employee authorization thereof has been effectively re-
voked.
(b) Maintaining or enforcing any provision of a collec-
tive-bargaining agreement which impedes or restricts em-
ployees in their right to revoke checkoff through clear,
unambiguous declarations of their intent in that regard.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Reimburse the employees listed on Apprendix C
for any sums improperly deducted from their wages in
payment of union dues to Peninsula Shipbuilders' Associ-
ation, with interest as set forth in the section of this De-
cision entitled "The Remedy." Said liability shall be joint
and several with Respondent Peninsula Shipbuilders' As-
sociation.
(b) Reimburse the employees listed on Appendix D at-
tached hereto insofar as union dues were unlawfully de-
ducted from their wages, with interest as set forth in the
section of this Decision entitled "The Remedy." Said lia-
bility shall be joint and several with Respondent Peninsu-
la Shipbuilders' Association.
(c) Post at its facilities in Newport News, Virginia, and
environs, copies of the attached notice marked "Appen-
dix A."4 Copies of said notice, on forms provided by
the Regional Director for Region 5, after being duly
signed by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
B. Respondent Peninsula Shipbuilders' Association,
Newport News, Virginia, its officers, agents, and repre-
sentatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Newport News
Shipbuilding and Dry Dock Company to deduct union
dues from the wages of employees pursuant to dues-
checkoff authorizations which are no longer valid be-
cause such employees have effectively revoked such au-
thorizations.
(b) Maintaining or enforcing any provision of a collec-
tive-bargaining agreement which impedes employees
1' In the evelit that this Order is enforced by a Judgment of a United
States Court f Appeals, the words in the notice reading "Posted hby
Order of the Natlonal l.ahor Relations Board" shall read "Posted Pursu-
ant to a Judgmenl of the United States Court of Appeals Enforcing an
Order of the Nalional l.abor Relations Hoard "
733
DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
from revoking checkoff authorizations by their clear and
unambiguous declaration of such intent.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Jointly and severally with Respondent Newport
News Shipbuilding and Dry Dock Company reimburse
the employees listed on Appendix C for all sums improp-
erly deducted from their wages in payment of union
dues, with interest as specified in the section of this De-
cision entitled "The Remedy."
(b) Jointly and severally with Respondent Newport
News Shipbuilding and Dry Dock Company reimburse
the employees listed on Appendix D insofar as union
dues was unlawfully deducted from their wages, with in-
terest as specified in the section of the Decision entitled
"The Remedy."
(c) Post at its meeting halls copies of the attached
notice marked "Appendix B."42 Copies of said notice, on
4z See fn. 41, supra.
forms provided by the Regional Director for Region 5,
after being duly signed by its authorized officer or repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to its members are customarily posted.
Reasonable steps shall be taken by it to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Furnish signed copies of said Appendix B to the
Regional Director for Region 5 for posting where no-
tices of Newport News Shipbuilding and Dry Dock
Company to its employees are posted, if said Newport
News Shipbuilding and Dry Dock Company is willing to
do so.
(e) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
734