Postal Service

National Labor Relations Board - Board Decisions

Apr 30, 1991

302 N.L.R.B. 779 (N.L.R.B. 1991)

779
302 NLRB No. 118
POSTAL SERVICE
1 39 U.S.C. § 1205.
United States Postal Service and Darlene Proctor
American Postal Workers Union, Fort Worth Area
Local and Darlene Proctor
American Postal Workers Union and Darlene Proc-
tor. Cases 16–CA–14268(P), 16–CB–3455(P), and
16–CB–3487(P)
April 30, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On December 29, 1989, the General Counsel of the
National Labor Relations Board issued an order con-
solidating cases, second consolidated complaint and
notice of hearing in the above-entitled proceeding. The
consolidated complaint alleges that the Respondent
Employer has violated Section 8(a)(1), (2), and (3) of
the National Labor Relations Act by refusing to honor
Charging Party employee Darlene Proctor’s request
that it cease deducting union dues from her paycheck
following her resignation from Respondent Unions. It
further alleges that the Respondent Unions violated
Section 8(b)(1)(A) and (2) by refusing to process the
Charging Party’s resignation from membership and
dues-deduction revocation and by causing the Re-
spondent Employer to continue to give effect to the
Charging Party’s checkoff authorization. On January
11, 1990, the Respondents filed a joint answer, admit-
ting in part and denying in part the allegations of the
complaint.
Paragraph 7 of the complaint alleges that the Re-
spondent Employer and the Respondent National
Union have been and were then parties to successive
collective-bargaining agreements. Paragraph 8 alleges
that the most recent agreement contained a checkoff
provision, whereby employees of the Respondent Em-
ployer could cause the Employer to deduct initiation
fees and regular monthly dues from their wages and
remit them to the Respondent Unions. Paragraph 9 al-
leges that on July 28, 1985, the Charging Party sub-
mitted to the Respondent Employer a signed checkoff
authorization, dated May 14, 1985, directing the Re-
spondent Employer to deduct regular monthly dues
from her wages and remit them to the Respondent
Unions. Paragraph 10 alleges that on or about August
18, 1989, the Charging Party submitted to the Re-
spondent Employer a completed form 1188 (‘‘Can-
cellation of Organization Dues From Payroll With-
holding’’), along with a letter stating that she was re-
signing from the Unions and requesting that the Re-
spondent Employer immediately cease deducting union
dues from her wages. Paragraph 11 alleges that on Au-
gust 23, 1989, the Respondent Employer notified the
Charging Party in writing that it was not honoring her
request to cease deducting dues from her paycheck.
Paragraph 12 alleges that on August 25, 1989, the
Charging Party notified the Respondent Unions that
she was resigning membership. Paragraph 13 alleges
that the Respondent Unions thereafter refused, and
have continued to refuse, to process the Charging Par-
ty’s resignation and dues deduction revocation because
they consider said requests untimely filed and not in
conformity with established procedures for dues-check-
off revocations.
The Respondent Employer and the Respondent
Unions admit the allegations in paragraph 7. The Re-
spondents aver that pursuant to section 1205 of the
Postal Reorganization Act (PRA)1 and article 17.7 of
the ‘‘National [collective-bargaining] Agreement,’’
Postal Service employees may voluntarily authorize the
Service to withhold moneys from their wages and
remit them to designated organizations.
The Respondent Employer admits that a form 1187
(‘‘Authorization for Deduction of Dues’’) signed by
the Charging Party was placed in the payroll system on
July 31, 1985. The Respondent Employer further ad-
mits that on or about August 18, 1989, the Charging
Party submitted to the Respondent Employer a com-
pleted form 1188 (‘‘Cancellation of Organization Dues
from Payroll Withholdings’’) along with a letter stating
her intent to resign union membership and requesting
immediate cessation of dues deductions from her pay-
check. The Respondent Employer admits only that on
or about August 23, 1989, it responded in writing to
the Charging Party. The Respondent Employer denies
that it has violated the Act.
The Respondent Unions aver that they have insuffi-
cient knowledge either to admit or deny allegations
concerning the Charging Party’s resignation from
union membership; however, they deny that they are or
ever have been unwilling to process her resignation.
The Respondent Unions admit that they are unwilling
to process the Charging Party’s checkoff revocation
because it was not filed in accordance with the terms
of the checkoff agreement. The Respondent Unions
further admit that they have enforced the terms of the
Charging Party’s checkoff authorization. The Respond-
ent Unions deny that they have violated the Act.
On January 9, 1990, the Respondents filed with the
Board a joint motion to dismiss or hold in abeyance,
with brief and supporting documents attached. On Jan-
uary 22, 1990, the General Counsel filed an opposition
to the Respondents’ motion and a Cross-Motion for
Summary Judgment, supported by brief and exhibits.
On January 24, 1990, the Board issued an order trans-
ferring proceeding to the Board and Notice to Show
Cause why the Respondents’ motion to dismiss and/or
the General Counsel’s Motion for Summary Judgment
should or should not be granted.
780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motions
I. JURISDICTION
The Respondent Employer provides postal services
for the United States of America and operates various
facilities throughout the United States, including the
General Mail Facility in Fort Worth, Texas. The Board
has jurisdiction over the Respondent by virtue of the
provisions of Chapter 12, Section 1209 of the Postal
Reorganization Act, 39 U.S.C. § 101 (PRA). The
American Postal Workers Union, AFL–CIO and its
Fort Worth Area Local are labor organizations within
the meaning of Section 2(5) of the Act.
II. ADMITTED OR UNDISPUTED FACTS
The undisputed complaint allegations establish that
on or about July 28, 1985, the Charging Party sub-
mitted to the Respondent Employer a signed checkoff
authorization (form 1187) directing the Employer to
deduct from her wages and remit to the Respondent
Unions her regular monthly dues. The authorization, a
copy of which was submitted by the General Counsel
as ‘‘Exhibit 5’’ in support of his motion, specifically
provides, in part, as follows:
This assignment, authorization and direction shall
be irrevocable for a period of one (1) year from
the date of delivery hereof to you, and I agree and
direct that this assignment, authorization and di-
rection shall be automatically renewed, and shall
be irrevocable for successive periods of one (1)
year, unless written notice is given by me to you
and the Union not more than twenty (20) days
and not less than ten (10) days prior to the expira-
tion of each period of one year.
The Charging Party thereafter submitted to the Re-
spondent Employer a signed form 1188, headed ‘‘Can-
cellation of Organization Dues From Payroll With-
holding,’’ dated August 18, 1989. On the form is a
printed statement, which was also dated ‘‘8–18–89,’’
certifying that the Charging Party sent a copy of the
form to the Respondent Union. Printed immediately
after this certification is the statement, ‘‘Notice must
be received within the required window period.’’
The Respondent Employer replied in writing to this
request (G.C. Exh. 7), stating that the revocation could
not be processed, citing the terms of the checkoff au-
thorization which limit the cancellation period to ‘‘not
more than 20 days and not less than 10 days prior to
the anniversary date (date of delivery to employer).’’
(Emphasis in original.) The Respondent Employer’s
letter further advised the Charging Party to ‘‘complete
the attached form 1188 and return it to us within the
10–20 day window period of your anniversary date of
July 31.’’
As noted above, the Respondent Unions did not
process the Charging Party’s dues-checkoff revocation
because it was not filed in conformance with the terms
of the checkoff agreement. Accordingly, the Respond-
ent Unions have continued to enforce the terms of the
checkoff.
III. POSITIONS OF THE PARTIES
In their joint motion, the Respondents contend that
the General Counsel is attempting to invalidate the
parties’ negotiated checkoff agreement to the extent
that it makes assignment of dues irrevocable for a pe-
riod of 1 year. They cite two cases dealing with the
same issue in which courts of appeals have denied en-
forcement to Board orders finding that the Postal Serv-
ice or postal employee unions acted unlawfully in
similar circumstances: NLRB v. Postal Service, 833
F.2d 1195 (6th Cir. 1987), in which the court found
the Board’s decision at odds with a reasonable con-
struction of PRA section 1205; and NLRB v. Postal
Service, 827 F.2d 548 (9th Cir. 1987), which the court
remanded to the Board so that it could ‘‘put forward
a reasoned basis for its rule, adopt the approach in
footnote 5 of its decision, or adopt some third ap-
proach.’’ In light of this criticism of the Board’s ap-
proach in these cases, and inasmuch as the Board ac-
cepted remand from the Ninth Circuit, the Respondents
ask the Board either to adopt the Sixth Circuit’s inter-
pretation of the PRA or to defer proceeding with the
instant case until the Board responds to the issues on
remand and the court of appeals has an opportunity to
review that decision.
The Respondents assert that except for the inclusion
of unfair labor practice allegations against the Unions
in the instant case, the factual basis of this complaint
is identical to that in the remanded case. The Respond-
ents thus refer the Board to their position statement
filed in that proceeding and reiterate their request that
the Board reexamine its construction of the applicable
statute, the PRA. Specifically, they question how an
employee can be permitted to revoke a checkoff au-
thorization at will when the language of section
1205(a) of the PRA directs that ‘‘written assignments
. . . shall be irrevocable for a period of not more than
one year.’’
The General Counsel argues that this case involves
certain unique facts and allegations that distinguish it
from the cases cited by the Respondent in support of
its argument that we should defer our ruling here. Ac-
cordingly, the General Counsel argues that, contrary to
the Respondents’ contention, it is not appropriate to
withhold a ruling in this case until after we have
issued a decision on the case remanded by the Ninth
781POSTAL SERVICE
2 In Electrical Workers IBEW Local 2088 (Lockheed Space Operations),
302 NLRB 332 (1991), the Board modified existing precedent governing the
obligation of employers other than the Postal Service to honor checkoff rev-
ocations. As explained below, however, the line of cases discussed there (in-
cluding cases on which the General Counsel has relied in this case) are no
longer relevant to determining the legality of refusals to honor checkoff au-
thorizations covered by the PRA.
3 In rejecting the General Counsel’s contention that the use of the word
‘‘members’’ in PRA section 1205(a) should properly restrict the deduction of
dues by checkoff only to those employees who hold current membership status
within the labor organization, we rely on Postal Service, supra at 334 fn. 12,
in which the Board explained its reasons for finding no merit to this argument.
4 The Respondents’ motion to hold proceeding in abeyance is denied.
Circuit and the decision on remand has been reviewed
by that court.
On the merits, the General Counsel makes four sep-
arate arguments for finding that the Respondents vio-
lated the Act as alleged when they failed to give effect
to the Charging Party’s attempt to revoke the author-
ization. Three of them are arguments that would apply
to all employers subject to the Act. They are thus
based on the premise that the law governing checkoffs
is the same for employees of the Postal Service as for
employees of other employers.2 In its fourth argument,
the General Counsel argues that PRA section 1205(a)
itself prohibits checkoff of union dues from a non-
member because the statute provides only for checkoff
of dues from the pay ‘‘of all members of a [labor] or-
ganization’’ (emphasis added).
IV. ANALYSIS
In Postal Service, 302 NLRB 322 (1991), on remand
from the Ninth Circuit Court of Appeals, the Board re-
considered the issue of the effect of an employee’s res-
ignation from union membership on his dues-checkoff
authorization under the PRA. Giving the ‘‘plain mean-
ing’’ to the irrevocability provision of section 1205(a),
in light of the pre-PRA system of labor relations
among postal employees and the legislative history of
the PRA, the Board concluded that the PRA requires
a period of checkoff irrevocability while section
302(c)(4) of the LMRA permits, but does not mandate
a period of irrevocability. The Board determined that
section 1205 requires the Postal Service to honor a
checkoff authorization’s irrevocability period if it is for
not more than a year, notwithstanding an authorization
signer’s resignation from union membership during
that period. Accordingly, it is not a violation of an em-
ployee’s Section 7 rights for the Postal Service or
labor organizations representing postal employees to
continue to give postresignation effect to a dues-check-
off authorization if the checkoff revocation is not made
within the prescribed time periods for revocation and
if the irrevocability period is not more than a year.3
Accordingly, we find that the Respondents did not
violate the Act by refusing to give effect to the Charg-
ing Party’s untimely attempted revocation of checkoff
authorization. On this basis the Respondents’ motion to
dismiss allegations of violation of Section 8(a)(3), (2),
and (1) against the Respondent Employer is granted
and the General Counsel’s Cross-Motion for Summary
Judgment is denied. Similarly, the Respondents’ mo-
tion to dismiss allegations against the Respondent
Unions of violations of Section 8(b)(1)(A) and (2)
based on their continued enforcement of the checkoff
terms is also granted and the General Counsel’s Cross-
Motion for Summary Judgment is denied.
The complaint additionally alleges that the Respond-
ent Unions failed and refused to honor the Charging
Party’s request to resign membership. While the Re-
spondent Unions deny that they have ever been unwill-
ing to process the Charging Party’s resignation, they
claim to have insufficient information concerning the
facts surrounding this allegation to provide further
clarification of the matter. In view of the outstanding
factual dispute on this issue, we deny both the Re-
spondent Unions’ motion to dismiss the 8(b)(1)(A) al-
legation dealing with the Charging Party’s resignation,
as well as the General Counsel’s Cross-Motion for
Summary Judgment.4 We shall, therefore, remand this
allegation to the Region for further appropriate pro-
ceedings.
ORDER
The complaint allegations against the Respondent
Employer are dismissed. The complaint allegations of
Section 8(b)(1)(A) and (2) against the Respondent
Unions are dismissed insofar as they relate to the en-
forcement of the Charging Party’s checkoff authoriza-
tion. Complaint allegations of 8(b)(1)(A) violations
against the Respondent Unions for purported inter-
ference with the Charging Party’s right to resign mem-
bership are remanded to the Region for further pro-
ceedings.