Postal Service

National Labor Relations Board - Board Decisions

Mar 29, 1991

302 N.L.R.B. 332 (N.L.R.B. 1991)

332
302 NLRB No. 50
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 279 NLRB 40.
2 The language of Dalton’s dues-checkoff form is as follows:
AUTHORIZATION FOR DEDUCTION OF UNION DUES
UNITED STATES POSTAL SERVICE
Date lllll
I hereby assign to llll(Union)llll from any salary or wages
earned or to be earned by me as your employee (in my present or any
future employment by you) such regular and periodic membership dues
as the Union may certify as due and owing from me, as may be estab-
lished from time to time by said Union. I authorize and direct you to de-
duct such amounts from my pay and to remit same to said Union at such
times and in such manner as may be agreed upon between you and the
union at any time while this authorization is in effect.
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 direction 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 expiration of each period of one (1) year.
This assignment is freely made pursuant to the provisions of the Postal
Reorganization Act and is not contingent upon the existence of any agree-
ment between you and my Union.
3 Eagle Signal, supra at 637.
4 279 NLRB at 42 fn. 3. The texts of both of these provisions are set out
below in fns. 10 and 11. The Labor Management Relations Act of 1947
(LMRA) was added as an amendment to the National Labor Relations Act (the
Act).
5 827 F.2d 548.
United Postal Service and Thomas M. Dalton. Case
19–CA–17268(P)
March 29, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT, DEVANEY, AND OVIATT
I. PROCEDURAL HISTORY
On March 31, 1986, the Board issued a Decision
and Order in this proceeding1 in which it found based
on the stipulated record, that the Respondent, United
States Postal Service, violated Section 8(a)(1) and (2)
of the Act by refusing to honor Charging Party Thom-
as M. Dalton’s revocation of a union dues-checkoff as-
signment, despite the fact that Dalton had effectively
resigned from membership in the Union, the American
Postal Workers Union, AFL–CIO. The Board based its
decision on the following facts. Dalton signed an au-
thorization for dues checkoff in October 1982. It con-
tained a 1-year irrevocability clause, renewable annu-
ally unless written notice is provided the Union be-
tween l0 and 20 days prior to its anniversary date. On
January 25, 1985, Dalton submitted to the Union a
written resignation from membership, stating that not-
withstanding the irrevocability provisions noted above,
he wished also immediately to revoke his dues-check-
off authorization. On January 28, 1985, Dalton re-
quested the Respondent Postal Service to revoke his
dues checkoff. The Respondent refused to honor Dal-
ton’s checkoff revocation on the grounds that it was
not made during the time period specifically provided
for by the terms of the checkoff authorization.2
In finding the Respondent’s refusal to give effect to
the revocation unlawful, the Board applied the rule
enunciated in Machinists Local 2045 (Eagle Signal),
268 NLRB 635 (1984). The rule states that when the
terms of a dues-checkoff authorization make payment
of dues a ‘‘quid pro quo’’ for union membership—that
is, when the language of the checkoff indicates that
dues are being paid to a union in exchange for mem-
bership in that union—the checkoff is revoked ‘‘by op-
eration of law’’ when the member resigns from the
union.3
Because the Respondent was subject to the Postal
Reorganization Act of 1970 (PRA) (39 U.S.C. § 101
et seq.), and because the PRA had its own provision
governing checkoff, the Board looked also to the lan-
guage of that provision to make certain that its applica-
tion of the Eagle Signal doctrine was appropriate when
the employer was the Postal Service. The Board con-
cluded that, although there were some slight dif-
ferences in wording between the PRA checkoff provi-
sion (39 U.S.C. § 1205), and the analogous provision
in Section 302(c)(4) of the Labor Management Rela-
tions Act of 1947 (29 U.S.C. § 186(c)(4)),4 the provi-
sions were basically ‘‘in line’’ with each other, and
thus both could properly be given the same construc-
tion. Accordingly, the Board followed Eagle Signal
and found that because Dalton’s checkoff authorization
specified that it was his ‘‘regular and periodic dues’’
that were to be deducted from his wages, his dues
were clearly a ‘‘quid pro quo’’ for union membership.
The Respondent was therefore required to honor his
revocation of checkoff immediately on his resignation
from the Union.
On September 4, 1987, the United States Court of
Appeals for the Ninth Circuit denied enforcement of
the Board’s Decision and Order and remanded the case
for further consideration.5
The court majority held that, although the Board’s
construction of PRA section 1205 as consistent with
Section 302(c)(4) of the LMRA was ‘‘reasonably de-
fensible,’’ the Board had not enunciated a ‘‘reasoned
basis’’ for the ‘‘quid pro quo’’ doctrine of Eagle Sig-
nal and therefore had applied that rule improperly.
While concurring with the majority’s remand order,
Judge Fletcher criticized the Board’s interpretation of
PRA section 1205 and stated that the plain language
of that section, unlike that of the LMRA, mandates a
period of checkoff irrevocability even if a member re-
signs from the union.
The Board accepted the court’s remand on February
16, 1988. Thereafter the General Counsel filed a brief
and the Respondent and the Intervenor-Union filed a
joint brief.
333POSTAL SERVICE
6 The second theory is the position enunciated by former Member Johansen
in the underlying case. See 279 NLRB at 42 fn. 5.
7 Electrical Workers IBEW Local 2088 (Lockheed Space Operations), 302
NLRB 322 (1991).
8 We note, however, that were we to decide this case under the theory set
out today in Lockheed, we would reaffirm the original decision that the Re-
spondent violated Sec. 8(a)(1) and (2) of the Act by refusing to honor Dalton’s
checkoff revocation after he resigned from the Union.
9 We note that after the court of appeals remanded this case to the Board,
the United States Court of Appeals for the Sixth Circuit issued an opinion,
NLRB v. Postal Service, 833 F.2d 1195 (1987), declining to enforce the
Board’s order regarding checkoff revocation in a similar Postal Service case.
Relying on reasoning similar to that of Judge Fletcher’s concurrence, it held,
inter alia, that sec. 1205 of the PRA plainly authorized the enforcement of ir-
revocability provisions of up to 1 year in union-dues authorizations. NLRB v.
Postal Service, supra, 833 F.2d at 1199.
10 The complete text of sec. l205 reads as follows:
(a) When a labor organization holds exclusive recognition, or when an
organization of personnel not subject to collective-bargaining agreements
has consultation rights under Section l004 of this title, the Postal Service
shall deduct the regular and periodic dues of the organization from the
pay of all members of the organization in the unit of recognition if the
Post Office Department or the Postal Service has received from each em-
ployee, on whose account such deductions are made, a written assignment
which shall be irrevocable for a period of not more than one year.
(b) Any agreement in effect immediately prior to the date of enactment
of the Postal Reorganization Act between the Post Office Department and
any organization of postal employees which provides for deduction by the
Department of the regular and periodic dues of the organization from the
pay of its members, shall continue in full force and effect and the obliga-
tion for such deductions shall be assumed by the Postal Service. No such
deduction shall be made from the pay of any employee except on his
written assignment, which shall be irrevocable for a period of not more
than one year. [Emphasis added.]
11 Sec. 302 of the LMRA reads in pertinent part:
(a) It shall be unlawful for any employer . . . to pay, lend, or deliver,
any money or other thing of value—
(1) to any representative of any of his employees; or
(2) to any labor organization, or any officer or employee thereof,
which represents, seeks to represent, or would admit to membership,
any of the employees of such employer. . . .
Continued
II. THE PARTIES’ POSITIONS ON REMAND
In its joint brief, the Respondent and the Intervenor-
Union urge the Board to consider the merits of the re-
viewing court’s concurring opinion (a position these
parties had themselves previously raised before the
Board), and they suggest that the Board reconsider its
interpretation of PRA section 1205. They note that
since the remand, the Sixth Circuit has denied enforce-
ment in a similar case, NLRB v. Postal Service, 833
F.2d 1195 (1987), and endorsed and elaborated on
Judge Fletcher’s concurrence.
The General Counsel urges the Board to adhere to
its earlier construction of section 1205 of the PRA, and
therefore argues that the case should be decided under
the same legal theory that the Board employs when de-
ciding the checkoff revocation issue with respect to
employers other than the Postal Service. In that regard,
he suggests that either of two theories would support
the position that there should be no obligation to pay
dues after revocation of checkoff: (1) that a require-
ment that an employee continue to pay dues after re-
signing from the union and attempting to revoke
checkoff impairs the employee’s Section 7 right to re-
sign as recognized by the Supreme Court in Pattern
Makers League v. NLRB, 473 U.S. 95 (1985); and (2)
that even assuming that resignation from the union
does not automatically revoke checkoff, it should at
least, in the absence of a union-security clause, reduce
the amount required to be checked off to zero.6
III. ANALYSIS
We have considered the entire record, the court’s
decision, and the parties’ briefs, and we have decided
to reverse the Board’s earlier decision, because we
have reconsidered our construction of section 1205 of
the PRA. We have determined, for the reasons set out
below, that, unlike the statutory language applicable to
private sector employers other than the Postal Service,
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. Therefore the Respondent did not violate
Section 8(a)(1) and (2) of the Act when it refused to
honor Charging Party Dalton’s checkoff revocation.
In reaching this conclusion, we acknowledge that the
panel majority of the Ninth Circuit had upheld our ear-
lier contrary construction of the PRA, and had re-
manded this case to give the Board the opportunity to
provide a more reasoned basis for its Eagle Signal doc-
trine. We have, in fact, reconsidered that doctrine in
another case decided today.7 Because our reconsider-
ation of the meaning of section 1205 of the PRA now
makes that provision dispositive of this case, however,
we do not reach the issue of the legality of the Re-
spondent’s actions without respect to the PRA.8 We
believe that this does not violate the terms of the re-
mand, because the panel majority merely held that our
earlier construction of the PRA was ‘‘reasonably de-
fensible,’’ not that it was the only possible reading of
the statutory language. We therefore conclude that we
are free to reconsider our construction of that lan-
guage. See NLRB v. Iron Workers Local 103, 434 U.S.
335, 351 (1978).9
Section 1205(a) of the PRA provides, in pertinent
part, that the Postal Service shall deduct ‘‘regular and
periodic’’ union dues from the pay of unit employees
who are members of labor or personnel organizations
that hold certain representational or consultation rights
if it ‘‘has received from each employee, on whose ac-
count such deductions are made, a written assignment
which shall be irrevocable for a period of not more
than one year’’ (emphasis added).10 The analogous
provision in the LMRA, Section 302(c)(4), refers to an
employer’s receipt of ‘‘a written assignment which
shall not be irrevocable for a period of more than one
year, or beyond the termination date of the applicable
collective bargaining agreement, whichever occurs
sooner.’’ (Emphasis added.)11 In the Board’s prior de-
334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b)(1) It shall be unlawful for any person to request, demand, receive,
or accept, or agree to receive or accept, any payment, loan, or delivery
of any money . . . .
. . . .
(c) The provisions of this section shall not be applicable . . . .
. . . .
(4) 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 account such
deductions are made, a written assignment which shall not be irrev-
ocable for a period of more than one year, or beyond the termination
date of the applicable collective agreement, whichever occurs sooner;
. . . [Emphasis added.]
12 We acknowledge that sec. 1205(a) includes a reference to ‘‘members,’’
but we do not read this as a requirement that dues can continue to be deducted
only for those who remain members. We believe that Congress must have
meant only that all employees who actually signed authorizations would have
their dues checked off, with no omissions; and, conversely, that the Postal
Service would not check off dues for someone who had failed to submit an
authorization. Indeed, it would be absurd to assume that Congress was mandat-
ing that ‘‘all members’’ (emphasis added) must have signed checkoff author-
izations before any member could have his dues deducted or that the deduction
system for all those paying dues would be invalidated if dues were deducted
for some employee who had failed to submit an authorization. It may be that
the term ‘‘members’’—which appeared in both the House and Senate bills that
lay behind the law that emerged from the conference committee (H.R. 17070
Sec. 226 and S. 3842 Sec. 1305, 91st Cong. 2d Sess. (1970))—is merely an
inadvertent survivor from a period before it was finally determined that union-
security agreements like those authorized by the proviso to Sec. 8(a)(3) of the
Act would not be permitted in the Postal Service (see discussion below).
Whatever the reason for its appearance in this section, however, we do not
find that it compels a construction contrary to the one we adopt in this deci-
sion.
13 Postal Service, 248 NLRB 5, 7 (1980).
14 5 C.F.R. 550.321 et seq.
cisions construing PRA section 1205(a), the Board ac-
knowledged that its wording was somewhat different
from that of LMRA Section 302(c)(4), but concluded
that the differences—which consisted mainly in a dif-
ferent placement of the word ‘‘not’’—were not suffi-
ciently great to warrant reading the two provisions dif-
ferently.
We have reconsidered that reasoning and now reach
a different conclusion, relying on the plain meaning of
the irrevocability provision of PRA section 1205(a),
the particular system of labor relations among postal
employees that existed prior to the enactment of the
PRA, and other differences between the PRA and the
Act suggestive of a legislative tradeoff in which the
Postal Service unions were denied the right, enjoyed
by private sector unions, to negotiate union-security
clauses, but were guaranteed a limited period of check-
off irrevocability.
As critics of the Board’s construction of the PRA
have pointed out, this difference in language between
the two statutes has the following impact: the words of
the PRA require that some period of checkoff irrevo-
cability exist (‘‘shall be irrevocable’’), while the words
of the Act allow for, but do not mandate, a period of
irrevocability. The Act merely places a time limit on
the authorization if the parties agree to some period of
irrevocability. There is no such similar flexibility under
the PRA. This means that although an employee of the
Postal Service may resign union membership at any
time, the employee cannot at the same time effectively
revoke his or her checkoff unless the checkoff revoca-
tion occurs outside the periods of irrevocability man-
dated by the PRA and specified by the terms of the
checkoff.12
Although, as the remanding court observed, the leg-
islative history of the checkoff provision in the PRA
is somewhat ‘‘meager,’’ there is nothing in that history
that compels a reading contrary to its plain meaning;
and, that meaning is reinforced by an examination of
the existing labor relations context to which the statute
was to apply. As the Board previously has acknowl-
edged, ‘‘A thorough examination of the numerous
Committee reports and floor debates on the PRA dis-
closes no indication that Congress was particularly
concerned with the details of checkoff revocation (ex-
cept for the establishment of the maximum of a 1-year
revocation period).’’13 A fresh look at the legislative
history of the labor relations provisions of the PRA re-
veals only that (1) most clearly, Congress intended to
extend to Postal Service employees certain organiza-
tional rights guaranteed to private sector employees
under the Act, and (2) Congress wanted to ensure
against compulsory unionism in the Postal Service by
precluding the option of a union-shop agreement. Be-
yond those fundamental concerns, however, there is lit-
tle congressional guidance offered in the way of statu-
tory construction. Accordingly, in the absence of per-
suasive evidence of contrary legislative objectives, we
should accord the words of the PRA their apparent
meaning—even if it differs from that which would
apply under the Act.
Further, although Congress referred to the Act as a
model for the PRA’s labor relations sections (and con-
ferred jurisdictional authority for their effectuation on
the Board), the Act was not the sole basis on which
those parts of the statute were founded. Prior to the the
PRA’s enactment, labor relations in the then-Post Of-
fice Department, like those of other Federal employers,
were governed by Executive Order 11491 (34 Fed.Reg.
17605 (1969)), and applicable Civil Service regula-
tions.14 Section 21(a) of that Executive Order provided
for a method of voluntary checkoff for employees’
union dues, and specified that applicable regulations
‘‘shall include provision for the employee to revoke
his authorization at stated six-month intervals.’’ (Em-
phasis added.) A memorandum of understanding en-
tered into thereunder by the Post Office Department
granted checkoff privileges to several postal employee
unions which stated that, while checkoff revocations
could be submitted by employees at any time, the rev-
ocations would not become effective until the follow-
ing March 1 or September 1, those dates being the
‘‘stated six-month intervals.’’ Thus, under the imme-
diately prior governing authority, there were only two
designated time periods per year during which postal
employees’ revocation of their dues-checkoff author-
335POSTAL SERVICE
15 It should be noted that the statute governing Federal employment labor
relations, which also grew out of Executive Order 11491, contains a similar
restriction. (5 U.S.C. § 7115, ‘‘Allotments to representatives’’ states that
union dues-checkoff authorizations ‘‘may not be revoked for a period of one
year.’’ The only exceptions to the 1-year revocation bar are (1) if the bargain-
ing agreement ceases to apply to the employee, and (2) if the employee is sus-
pended or expelled from membership in the union. We note that resignation
from union membership is not included as a basis justifying checkoff revoca-
tion within the proscribed 1-year period. The Federal Labor Relations Author-
ity, which has jurisdiction over Federal employment and administers this stat-
ute, has construed this 1-year revocation bar strictly in case law, i.e., revoca-
tions during that period are not permitted. See U.S. Army, U.S. Army Material
Development and Readiness Command, Warren Michigan, 7 F.L.R.A. No. 30
(1981).
16 39 U.S.C. § 1207.
17 This was the type of situation involved in Postal Service, 248 NLRB 5
(1980).
18 39 U.S.C. § 1209(c)
19 Cf. NLRB v. General Motors Corp., 373 U.S. 734, 742 (1963).
ization could take effect. With this restriction as predi-
cate, the language of PRA section 1205 requiring that
checkoffs be made irrevocable for some period of time
appears to be a direct and logical reflection of existing
practice in postal employment.15
This is not the only area in which Postal Service
employment differs from the private sector. One obvi-
ous, and perhaps most fundamental difference is that
postal employees, like Federal employees, are not per-
mitted to strike. Instead, the PRA provides for resolu-
tion of what in the private sector might be strike issues
through arbitration.16 Another significant difference,
appearing in the same section of the PRA as the sub-
ject of the instant proceeding, permits dues deductions
in two situations which the Act would not contemplate.
First, section 1205(a) extends checkoff privileges to or-
ganizations that do not have collective-bargaining
rights for their members, e.g., supervisory associations.
Second, section 1205(b) authorizes the perpetuation of
checkoff arrangements in effect prior to the enactment
of the PRA involving organizations that are not exclu-
sive bargaining representatives.17
But perhaps the most revealing example of how the
PRA’s approach differs from the Act concerns the area
of union security. As mentioned above, the legislative
history of the PRA reveals that Congress did not want
postal employees to be bound by any form of compul-
sory unionism. This objective resulted in a broad pro-
scription against any form of union security arrange-
ment, as set forth in PRA section 1209(c).18 By virtue
of these provisions banning any type of involuntary
union support, postal employees are entirely free to
choose whether or not they want to become union
members even in the limited ‘‘financial core’’ sense—
a status that may be compelled under union-security
clauses permitted by the proviso to Section 8(a)(3) of
the Act—,19 and, further, whether they wish to satisfy
these voluntarily assumed dues responsibilities by
means of a checkoff. A plausible reading of the ways
in which the PRA and the Act as amended by the
LMRA differ with respect to both union-security
clauses and dues-checkoff authorizations is that Con-
gress recognized that by granting postal employees the
unrestrained choice of whether to provide even limited
support to the union that represents them, it was at the
same time eliminating even the possibility of an im-
portant source of union viability, i.e., a foundation of
financial core members who would provide an ongoing
source of financial support for the union. By wording
section 1205 so as to require at least some period of
irrevocability of voluntarily executed checkoffs, Con-
gress gave back to the unions some part of what they
lost in the union-security area. Specifically, section
1205’s restriction on revocability of checkoffs guaran-
tees postal unions at least a certain level of predict-
ability of dues income to compensate for the absence
of financial core-union security arrangements available
in private sector employment in the majority of States.
We therefore find that reading section 1205 of the
PRA according to its plain meaning is consistent with
the overall structure of the PRA and the labor relations
context in which it was enacted.
IV. CONCLUSION
As the undisputed facts of this case reveal, Dalton
freely executed a checkoff authorization in October
1982 and tried to revoke it in January 1985. In accord
with the terms of the PRA, as implemented by the par-
ties’ collective-bargaining agreement and as clearly
stated within the checkoff authorization itself, employ-
ees choosing to become members of the Union and to
have their dues obligations fulfilled through the check-
off system, are obligated to remain subject to the
checkoff for a full 1-year period, and for successive 1-
year periods thereafter, allowing only for a 10-day
open period each year prior to the anniversary date of
the checkoff’s execution. We find that this system
comports fully with the terms of the PRA. Under the
plain meaning of section 1205(a) of the PRA, the Re-
spondent was warranted in refusing to implement Dal-
ton’s revocation request because it was outside the per-
missible revocation periods. The complaint allegations
of violations of Section 8(a)(1) and (2) of the Act are
therefore not established and, accordingly, we shall
dismiss the complaint.
ORDER
The complaint is dismissed.