Smithfield Packing Co.

National Labor Relations Board - Board Decisions

Jun 27, 1991

303 N.L.R.B. 546 (N.L.R.B. 1991)

546
303 NLRB No. 74
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Charging Party Langhorne’s exceptions, addressing matters neither con-
tained in the record nor relevant to our review of this proceeding, are denied.
Charging Party Langhorne also has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
2 Art. III states in relevant part:
Upon written authorization by employees who are members of the
Union or who wish to become members, the Company will make deduc-
tions for Union dues in accordance with the stipulation in the voluntary
check-off authorization in an amount certified by the Union to the Com-
pany. The Company will make deductions for Union dues from all mem-
bers of each week of employment except in cases of layoff, leave of ab-
sence, and termination. Back dues will be deducted from Union members
for a maximum of four (4) weeks in the case of absence from work. The
Company will deliver by the 10th of each month, the sum to the Financial
Secretary of the Union or such officers of the Union as it may designate
in writing upon his receipt therefor:
The authorization shall be as follows:
I hereby authorize and direct my employer to deduct from my wages
my dues owing to the Union and direct that such amounts so deducted
to be sent to the Secretary-Treasurer of such Local Union for and on my
behalf.
This authorization and assignment shall be irrevocable for the period
of the existing contract between my employer and the Union, or for one
year, whichever is less, and shall automatically renew itself for successive
contract or annual periods, unless I give written notice of my desire to
revoke same to the Company and the Union at least sixty (60) days, and
not more than seventy-five (75) days, before the periodic renewal dates
of this authorization and assignment. The periodic renewal date shall be
determined by the date the authorization was signed.
3 The authorization states:
I hereby authorize and direct my Employer to deduct from my wages
Initiation Fees (where applicable) and Working Dues—owing to Local
Union No.—of the Laborers’ International Union of North America and
direct that such amounts so deducted be sent to the Secretary-Treasurer
of such Local Union for and on my behalf.
This authorization and assignment shall be irrevocable for the period
of the existing contract between my Employer and said Local Union, or
for one year, whichever is less, and shall automatically renew itself for
successive contract or annual periods, unless I give written notice of my
desire to revoke same to the company and to said Local Union at least
sixty (60) days, and not more than seventy-five (75) days before the peri-
odic renewal dates of this authorization and assignment.
Social Security No. lllllllll
llllllllllllll Signed
Date lllllllllllllll
Smithfield Packing Company, Inc. and Deloris
Jones and Victor C. Langhorne
Food Processors Local 1046 of the Laborers’ Inter-
national Union of North America and Deloris
A. Jones and Victor C. Langhorne. Cases 5–
CA–20106, 5–CA–20479, 5–CB–6180, and 5–
CB–6297
June 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On August 2, 1990, Administrative Law Judge Don-
ald R. Holley issued the attached decision. The Gen-
eral Counsel and Charging Party Langhorne filed ex-
ceptions, the General Counsel filed a supporting brief,
and Respondent Local 1046 filed a brief opposing the
exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings, and
conclusions only to the extent consistent with this De-
cision and Order.
The consolidated complaint in this case alleges that
Respondent Local 1046 violated Section 8(b)(1)(A)
and (2) by refusing to honor employee revocations of
dues-checkoff authorizations and by continuing to ac-
cept union dues deducted from employees’ wages after
the employees had resigned from union membership.
The complaint further alleges that Respondent Smith-
field Packing Company violated Section 8(a)(1) and
(3) by refusing to honor its employees’ revocation of
their dues-checkoff authorizations and by continuing to
deduct union dues from their wages and remit them to
Respondent Local 1046 after the employees had re-
signed from union membership. The judge dismissed
the complaint in its entirety. Pursuant to our decision
in Electrical Workers IBEW Local 2088 (Lockheed
Space Operations), 302 NLRB 322 (1991), and as ex-
plained below, we reverse the judge’s decision in sub-
stantial part, concluding that, with the exception of the
8(b)(2) allegation against Local 1046, the Respondents
violated the Act as alleged in the complaint.
I. FACTS, JUDGE’S DECISION, AND EXCEPTIONS
The facts are more fully detailed in the judge’s deci-
sion. Those significant to our determination are as fol-
lows. Respondent Local 1046 represents a bargaining
unit of more than 1200 employees at Respondent
Smithfield’s meat packing plant. The Respondents
have been parties to a series of collective-bargaining
agreements, the most recent ones in effect from July
1, 1985, to July 2, 1989, and a successor agreement ef-
fective from August 21, 1989, to June 27, 1993. The
agreements, specifically acknowledging Virginia’s
‘‘right to work’’ statute, do not contain union-security
provisions. Article III of the agreements provides for
deduction of union dues pursuant to a voluntary check-
off authorization executed by employees who are, or
wish to become, union members, and it sets forth, inter
alia, conditions for revoking such a checkoff authoriza-
tion.2 The checkoff authorization form that employees
signed in order to cause dues to be deducted from their
wages restates these conditions on revocability.3 The
parties stipulated that each of the alleged dis-
criminatees in this proceeding executed a checkoff au-
thorization containing the language quoted in the pre-
ceding footnote.
The significant events in this case take place against
a factual background which includes Local 1046’s
trusteeship status, imposed by the International Union
in June 1988, the rising dissatisfaction of many
547SMITHFIELD PACKING CO.
4 All subsequent dates refer to the period between September 1988 and May
1989, unless otherwise noted.
5 The form letter stated the following:
SMITHFIELD PACKING CO.
Smithfield, VA 23430
TO WHOM IT MAY CONCERN:
I hereby revoke authorization for union dues checkoff deduction for Food
Processors Local Union 1046 as I am also hereby immediately resigning
membership in said Local.
I am providing a duplicate notice of this revocation to the union. Please
note that the National Labor Relations Board has held that when an em-
ployee effectively resigns membership in the union, the financial obliga-
tion he undertook as a quid pro quo for such membership also ceases,
and the dues checkoff is revoked by operation of law, more restrictive
language in the checkoff agreement notwithstanding (Labor and Employ-
ment Law of Virginia, 1987, p. 27).
llllllllllllllllllllllll
Signature/name
llllllllllllllllllllllll
Social Security Number
llllllllllllllllllllllll
Date
cc
Food Processors Local 1046
c/o Mary Pritchett, Acting Business Agent
6 There is no evidence that Local 1046 took any affirmative steps to cause
Smithfield to continue checkoff deductions regarding the employees whose re-
quests to revoke it determined to be untimely.
7 The three employees are not alleged discriminatees. Checkoff deduction
for another employee, James Goodwin, was terminated in the third week of
November, on a subsequent determination that his resignation/revocation form
had also been timely submitted on October 31. Goodwin is an alleged
discriminatee.
employee/members with the trusteeship situation, the
development of a rival independent union—the Inde-
pendent Food Workers Union (IFWU), and a decerti-
fication campaign in spring 1989 involving the two
unions. It was in this context that, at an IFWU meeting
in late September 1988,4 Victor Langhorne, the interim
president of IFWU and an employee of Local 1046
prior to the imposition of the trusteeship, presented the
employees attending with copies of a dues-checkoff
revocation/membership resignation form, which
Langhorne had drafted.5 Langhorne told the employees
at the meeting that in order to resign from membership
in Local 1046 and revoke their checkoff authorizations
they must complete two of the documents and deliver
one to Local 1046 and one to Smithfield. He offered
to deliver the employees’ forms to Local 1046 himself
if they would leave executed forms with him. There-
after, on various dates in September and October, more
than 70 executed resignation/revocation forms were
brought by employees to Smithfield’s personnel office.
During the same period of time Langhorne collected
more than 80 executed resignation/revocation forms;
he delivered them to Local 1046 on October 31.
It is undisputed that the employees who submitted
revocation/revocation forms as set forth above were
deemed by the Respondents to have resigned from
union membership. With respect to the revocation of
checkoff authorizations, however, Local 1046 cal-
culated that only three employees had submitted
resignation/revocation forms within the ‘‘window pe-
riod’’ relating to the anniversary date of the authoriza-
tion’s execution, as set forth in the authorization form
and article III, above. Local 1046 notified Smithfield
to stop checkoff with respect to these three employees
if Smithfield had also received timely notice of an in-
tent to revoke from the three.6 Checkoff deductions for
these three were terminated effective October 30.7
Local 1046 sent letters to the other employees whose
resignation/revocation forms had been received, stating
that although it would honor their resignations from
the Union their checkoff revocations were invalid be-
cause the latter were not submitted within an appro-
priate window period for revocation.
On December 16, Local 1046 received resignation/-
revocation documents executed by six more employ-
ees. The Union again responded by notifying these em-
ployees that it acknowledged their resignations from
membership, but that their checkoff authorization rev-
ocations were ineffective because they were not deliv-
ered within an appropriate window period.
Early the following April, a time when the decerti-
fication campaign was apparently in full swing and
employees in general were switching their support
from one rival union to the other, Langhorne prepared
for another submission of resignation/revocation docu-
ments to the Respondents. At a union meeting he told
those in attendance that he would collect employees’
newly executed resignation/revocation forms and de-
liver them to both Respondents. He further explained
that they would be submitted during the contract-expi-
ration window period permissible for revocation, i.e.,
between April 18 and May 3. Subsequently, he col-
lected newly executed forms from more than 40 em-
ployees. To these he added photocopies of forms exe-
cuted by many of the employees between September
and December of the year before and previously re-
jected by one or both of the Respondents as untimely
for purposes of checkoff revocation. In late April, he
mailed one large envelope to each Respondent, each
envelope containing more than 100 executed
resignation/revocation forms and a cover letter signed
by Langhorne and identifying him as the president of
IFWU. The Respondents received the envelopes on
May 1. Langhorne testified that he did not contact any
of the employees whose 1988 forms he resubmitted at
this time, either before or after the resubmission. How-
ever, one employee specifically asked him to resubmit
his 1988 form, and one employee made it known that
he did not want his resubmitted, and Langhorne hon-
ored both employees’ wishes.
By letter of May 10, Local 1046 responded to
Langhorne by stating that it would not honor any of
the resignation/revocation documents received on May
1. It noted, inter alia, that Langhorne’s authority to
submit the documents on behalf of the employees was
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 No such employees were ever identified by Local 1046. In addition, just
prior to the hearing, the parties agreed to a partial settlement addressing the
allegations of unlawful conduct by the Respondents with respect to the May
1 submissions, and covering 44 employees—originally alleged as
discriminatees—whose resignation/revocation forms apparently were dated, as
well as submitted, during the contract-expiration window period.
9 See Postal Service, 279 NLRB 40, 42 fn. 5 (1986), enf. denied 827 F.2d
548 (9th Cir. 1987).
10 Although we note that all but two of the alleged discriminatees submitted
explicit requests to revoke their checkoff authorizations as well as membership
resignations, all that Lockheed requires to effectuate revocation of a checkoff
authorization, in the appropriate circumstances, is resignation from union
membership. See Baltimore Sun Co., 302 NLRB 436, 437 (1991).
11 See NLRB v. Postal Service, 833 F.2d 1195 (6th Cir. 1987); NLRB v.
Postal Service, 827 F.2d 548 (9th Cir. 1987).
12 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
13 In Lockheed, the Board left open the question of how its waiver rule
would apply in the context of a lawful union-security provision. In the absence
open to doubt; that most, although not all, of the docu-
ments were dated prior to the contract-expiration win-
dow period; and that some employees had requested
that Local 1046 disregard the documents bearing their
names.8
Subsequently, employee Johnrene Cary, by hand-
written letter dated May 16, and employee Norman
Newby, by handwritten letter dated May 19, informed
Local 1046 that they were resigning from union mem-
bership. At the hearing Local 1046 acknowledged both
receipt of the two letters and their sufficiency for res-
ignation from the Union. However, it continued to re-
ceive dues deductions pursuant to their checkoff au-
thorizations.
In his decision, which issued prior to Lockheed,
supra, the judge, essentially relying on Machinists
Local 2045 (Eagle Signal), 268 NLRB 635 (1984),
concluded that the alleged discriminatees’ membership
resignations in the instant case did not, by operation of
law, revoke their checkoff authorizations because it
was not adequately established that the moneys de-
ducted pursuant to the checkoff authorizations con-
stituted a quid pro quo for union membership. Further,
it appears that the judge concluded implicitly that the
alleged discriminatees did not comply sufficiently with
the procedure for revocation of their authorizations
during the appropriate window periods. Therefore, he
dismissed the complaint.
The General Counsel’s exceptions contend that the
Respondents violated the Act as alleged, arguing: (1)
that pursuant to Pattern Makers League v. NLRB, 473
U.S. 95 (1985), where union members have effectively
resigned membership, as here, continued deductions
based on checkoff authorizations are an unlawful re-
striction on their Section 7 right to resign from union
membership; (2) alternatively, that the Board should
adopt former Board Member Johansen’s ‘‘zero owed’’
analysis as a basis for finding the unfair labor practices
alleged;9 and (3) also alternatively, that the
resignation/revocation forms submitted to the Respond-
ents on May 1 complied with the procedure for revoca-
tion during the contract-expiration window period, and
that the Respondents accordingly violated the Act by
failing to give them effect.
In its brief, Local 1046 offers opposing arguments
for each of the General Counsel’s contentions, and
urges support of the judge’s decision. It also argues,
inter alia, that it appropriately refused to effectuate
assertedly invalid, ‘‘stale-dated’’ checkoff revocation
requests, i.e., those forms signed by alleged
discriminatees but dated up to 7 months before their
submission on May 1.
II. DISCUSSION
In our view, Lockheed, supra, mandates that the re-
ceipt by the Respondents of union membership res-
ignations from the alleged discriminatees and their
subsequent conduct in this case establish violations of
the Act.10 Accordingly, it is unnecessary for us to con-
sider whether the employees’ checkoff revocations
were filed appropriately within one of the two window
periods set forth in the checkoff authorization form and
article III of the collective-bargaining agreement. In
Lockheed the Board acknowledged judicial criticism of
the Eagle Signal analysis11 and set forth a new test for
determining the effect of an employee’s resignation
from union membership on that employee’s dues-
checkoff authorization. The Board in Lockheed found
that an employee may voluntarily agree to continue
paying dues pursuant to a checkoff authorization even
after resignation of union membership. In fashioning a
test to determine whether an employee has in fact
agreed to do so, the Board recognized the fundamental
policies under the Act guaranteeing employees the sep-
arate rights to refrain from belonging to or assisting a
union, as well as the principle set forth by the Su-
preme Court that waiver of such statutory rights must
be clear and unmistakable.12 In order to give full effect
to these fundamental labor policies, the Board stated
that it would
. . . construe language relating to a checkoff au-
thorization’s irrevocability—i.e., language specify-
ing an irrevocable duration for either 1 year from
the date of the authorization’s execution or on the
expiration of the existing collective-bargaining
agreement—as pertaining only to the method by
which dues payments will be made so long as
dues payments are properly owing. We shall not
read it as, by itself, a promise to pay dues beyond
the term in which an employee is liable for dues
on some other basis. Explicit language within the
checkoff authorization clearly setting forth an ob-
ligation to pay dues even in the absence of union
membership will be required to establish that the
employee has bound himself or herself to pay the
dues even after resignation of membership. [Id.
328–329.]13
549SMITHFIELD PACKING CO.
of a union-security clause requiring union membership here, the Lockheed test
is applicable to this case.
14 Winslow executed her form on December 4; it was not received by the
Respondents until May 1. The documents establishing the membership resigna-
tions of all other discriminatees carried execution dates relatively close in time
to their delivery to Local 1046.
Applying the Lockheed analysis to the facts of this
case, we note first that each of the alleged
discriminatees executed a checkoff authorization form
containing the language set forth in section I of this
decision. We find that in signing the authorizations
these employees did not clearly and unmistakably
waive their right to refrain from assisting Local 1046
for periods when they were not union members. In
other words, they did not clearly agree to have deduc-
tions made subsequent to their submission of resigna-
tions from union membership. Accordingly, we find
that the employees’ checkoff authorizations were con-
ditioned on their union membership, and were revoked
when they ceased being members of Local 1046.
Therefore, with respect to the unfair labor practice
allegations against Respondent Local 1046, we con-
clude that subsequent to its receipt of membership res-
ignations from employees on October 31, December
16, May 1, and on or about May 16 and 19, its contin-
ued acceptance of union dues deducted from these em-
ployees’ wages and its refusal to honor their effective
revocation of checkoff authorizations restrained and
coerced them in the exercise of their Section 7 rights
and violated Section 8(b)(1)(A). See Lockheed, supra;
E-Systems, Inc., 302 NLRB 352, 354 (1991);
Gerland’s Food Fair, 302 NLRB 336, 338 (1991).
However, the complaint does not allege and the record
does not establish that Local 1046 took affirmative
steps to cause Smithfield to continue to deduct these
employees’ dues after their membership resignations.
Accordingly, the complaint’s 8(b)(2) allegations are
dismissed. See Lockheed, supra at 330.
Concerning the unfair labor practice allegations
against Respondent Smithfield, we conclude that fol-
lowing its receipt of notice of employees’ union mem-
bership resignations on or about October 31 and on
May 1, its continued deduction of dues from these em-
ployees’ wages, and its refusal to honor their effective
revocation of checkoff authorizations interfered with,
restrained, and coerced them in the exercise of their
Section 7 rights in violation of Section 8(a)(1) and (3)
of the Act. E-Systems, supra at 354; Gerland’s, supra;
see also Lockheed, supra at 329.
Regarding Local 1046’s position that certain of the
revocation/resignation documents received from
Langhorne on May 1 were ‘‘stale-dated’’ and invalid,
we point out initially that under our Lockheed analysis
there is only one employee, Barbara Winslow, whose
document the Union conceivably could assert was
‘‘stale.’’14 There are several other discriminatees
whose forms, establishing notice to Smithfield of their
membership resignations, were received by Smithfield
up to several months after their execution dates and
delivery to Local 1046. In any event, taking account
of the particular facts of this case, especially the rival
union campaign and Langhorne’s status as president of
the IFWU, we find no merit in Local 1046’s view. All
the assertedly ‘‘stale’’ documents state on their face an
unambiguous intention to resign from the Union. There
is no dispute that the signatures are authentic. There is
no evidence that Langhorne did not act with the au-
thorization of the employees whose documents he de-
livered on May 1. In these circumstances, if Local
1046 or Smithfield perceived any basis for doubting
the legitimacy of the intention expressed on any of the
documents, it was within their power simply to make
direct contact with the employee at issue to confirm
his or her intention. See Newport News Shipbuilding &
Dry Dock Co., 253 NLRB 721, 732 fn. 36 (1980),
enfd. sub nom. Peninsula Shipbuilders Assn. v. NLRB,
663 F.2d 488, 493 (4th Cir. 1981). There is no evi-
dence on this record that either Respondent took such
steps.
AMENDED CONCLUSIONS OF LAW
1. By refusing to honor employees’ effective revoca-
tion of checkoff authorizations and by continuing to
accept union dues deducted from their wages after
these employees had resigned from membership in
Local 1046, where the terms of their voluntarily exe-
cuted checkoff authorizations did not clearly and ex-
plicitly impose any postresignation dues obligation on
them, Local 1046 has restrained and coerced employ-
ees in the exercise of their Section 7 rights and has
violated Section 8(b)(1)(A) of the Act.
2. By refusing to honor employees’ effective revoca-
tion of checkoff authorizations and by continuing to
deduct union dues from their wages after receiving no-
tice of their union membership resignations, where the
terms of their voluntarily executed checkoff authoriza-
tions did not clearly and explicitly impose any
postresignation dues obligation on them, Smithfield has
interfered with, restrained, and coerced employees in
the exercise of their Section 7 rights and has violated
Section 8(a)(1) of the Act. We also find that it violates
Section 8(a)(3) on the ground that it constitutes dis-
crimination in regard to a condition of employment
that encourages union membership.
REMEDY
Having found that the Respondents have engaged in
the unfair labor practices described above, we shall
order them to cease and desist and to take certain af-
firmative action designed to effectuate the policies of
the Act.
The Respondents must give full force and effect to
the employees’ revocation of their checkoff authoriza-
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 This category includes employees who submitted resignation/revocation
documents only to Local 1046 on October 31 and December 16; several of
these employees are covered by the partial settlement agreement. It also in-
cludes two employees, Johnrene Cary and Norman Newby, who submitted
handwritten resignations to the Union on or about May 16 and 19, respec-
tively, and one employee, Doris Boone/Blount, whose employment terminated
subsequent to her membership resignation.
16 All the employees listed in this category except Barbara Winslow sub-
mitted resignation/revocation documents to both Respondents on or about Oc-
tober 31; Winslow first submitted her document to both Respondents on May
1. Many of these employees are covered by the partial settlement agreement.
This category also includes seven employees—Kevin Dale, Lindell Hunter,
Doris Moody, Daryl Sessons, Earl Wynn, Gail Cooper, and Tracy Hill—whose
employment terminated subsequent to their membership resignations.
tions. In addition, the Respondents, jointly and sever-
ally where appropriate, shall make the employees
whole for any moneys deducted from their wages for
the period following the dates of their union member-
ship resignations, with interest to be computed in the
manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
Our review of the record establishes that there are
93 discriminatees whose rights are covered by our
Order and whose names are listed below. We have di-
vided them into three categories, pursuant to the nature
of the Respondents’ liabilities. The first category lists
those employees who submitted resignation/revocation
forms only to Local 1046 or otherwise resigned from
the Union without notice to Smithfield, thus estab-
lishing Local 1046’s sole liability for the unlawful,
continued withholding of union dues from these em-
ployees’ wages. The second category lists those em-
ployees who submitted resignation/revocation forms on
October 31 and December 16 to the Union only, and
on May 1 provided effective notice of their member-
ship resignations to Smithfield, thus establishing an
initial period of Local 1046’s sole liability, followed
by a period of the Respondents’ joint and several li-
ability. The third category consists of those employees
whose resignation/revocation forms were submitted to
both Respondents at or about the same time, thereby
establishing the joint and several liability of the Re-
spondents for all moneys due them under this Order.
In making these remedial determinations, we have, to
the extent possible, taken account of the likely limiting
effect of the partial settlement agreement covering sev-
eral of the listed discriminatees with respect to the Re-
spondents’ withholding of dues on and after May 1. In
addition, we have relied substantially on the documen-
tary evidence in the record, the parties’ stipulations
(marked ‘‘ALJ exhibit 1’’), the October 27, 1989 con-
solidated complaint, as amended, and ‘‘Attachment I,’’
appended to the General Counsel’s posthearing brief to
the judge, as verified by the record. We leave to the
compliance stage of this proceeding any further reme-
dial issues that may arise with respect to the Order.
Category One.15
Doris Boone/Blount Hurley Jones
Johnrene Cary Norman Newby
Octavia Conner Richard Pruden
Ethel Harper Dennis White
Gwendolyn Johnson
Category Two.
George Conner Tony Powell
Vincent Davis Major Riddick
Linda Eley Jacqueline Robinson
Joyce Grandison Rosetta Tucker
Eva Holloman Jacqueline Warren
John Lawrence Wanda Whitfield
Carolyn Newby Eula Woodson
Category Three.16
Mabel Artis Theodore Holley, Jr.
Robert Artis Juanita Holloman
Alvin Ballard Mary Holloman
Shirley Banks Lindell Hunter
Debra Batten Rachel Jackson
Doris Bowser Delorise Jones
Tillie Branch Tyrone Johnson
Elsie Chatman James Jones
Gail Cooper Ralph Jones
Helen Cotten Rosetta Jones
Kevin Dale Walter Jones
Clara Davis Benjamin Mann
John Davis Doris Moody
Gwendolyn Debrew Otis Palmer
Odell Deloatch Clyde Parrish
Terry Diggs Cindy Ralph
James Dillard Richard Ralph
Eunice Dunn Pamela Ricks
Charles Eley Russell Ricks
Elvis Eure Willie Riddick
Clarrer Evans William Savage
Mary Evans Daryl Sessons
Priscilla Gary Melvin Slade
Francine Gay Sandra Smith
Teressa Gholston Lee Stokes
James Goodwin Rosa Towns
Dorothy Graves Betty Vaughan/Artis
Cathy Green Richard Watford
Sarah Greene Antonie White
Alexander Hall James White
Bonnie Harris Rhonda Whitfield
Iristeen Harvey Barbara Winslow
Tracy Hill Eunice Woodis
James Hite Fred Wright
Augustus Holley Earl Wynn
ORDER
The National Labor Relations Board orders that
551SMITHFIELD PACKING CO.
17 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’ 18 See fn. 17 above.
A. Respondent Employer, Smithfield Packing Com-
pany, Inc., Smithfield, Virginia, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to honor employees’ effective revoca-
tion of dues-checkoff authorizations and continuing to
deduct union dues from their wages after receiving no-
tice of their union membership resignations, where the
terms of their voluntarily executed checkoff authoriza-
tions did not clearly and explicitly impose any
postresignation dues obligations on them.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole jointly and severally with Respond-
ent Food Processors Local 1046 of the Laborers’ Inter-
national Union of North America, the employees listed
in categories two and three of the remedy section of
this Decision and Order for any dues deductions from
their wages for the period following Smithfield’s re-
ceipt of notice of their resignations from union mem-
bership, with interest, all as more fully set forth in the
remedy section.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Post at its facility in Smithfield, Virginia, copies
of the attached notice marked ‘‘Appendix A.’’17 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 5, after being signed by Respond-
ent Smithfield’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent Smithfield to ensure that the notices are
not altered, defaced, or covered by any other material.
(d) Post at the same places and under the same con-
ditions as set forth in paragraph A,2,(c), above, as soon
as forwarded by the Regional Director, copies of the
attached notice marked ‘‘Appendix B.’’
(e) Mail signed copies of the attached notice marked
‘‘Appendix A’’ to the Regional Director for posting by
Respondent Local 1046.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respond-
ent Smithfield has taken to comply.
B. Respondent Union, Food Processors Local 1046
of the Laborers’ International Union of North America,
Smithfield, Virginia, its officers, agents, and represent-
atives, shall
1. Cease and desist from
(a) Refusing to honor employees’ effective revoca-
tion of dues-checkoff authorizations and continuing to
accept union dues deducted from their wages after
these employees had resigned from membership in
Local 1046, where the terms of their voluntarily exe-
cuted checkoff authorizations did not clearly and ex-
plicitly impose any postresignation dues obligations on
them.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole, jointly and severally with Respond-
ent Smithfield where appropriate, the employees listed
in categories one, two, and three of the remedy section
of this Decision and Order for any dues deductions
from their wages for the period following their resigna-
tions from union membership, with interest, all as
more fully set forth in the remedy section.
(b) Post at its offices and meeting halls in Smith-
field, Virginia, copies of the attached notice marked
‘‘Appendix B.’’18 Copies of the notice, on forms pro-
vided by the Regional Director for Region 5, after
being signed by Respondent Local 1046’s authorized
representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by Respondent Local 1046
to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Post at the same places and under the same con-
ditions as set forth in paragraph B,2,(b), above, as soon
as forwarded by the Regional Director, copies of the
attached notice marked ‘‘Appendix A.’’
(d) Sign and return to the Regional Director suffi-
cient copies of the notice marked ‘‘Appendix B’’ for
posting by Respondent Smithfield at all places where
notices to employees are customarily posted.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respond-
ent Local 1046 has taken to comply.
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to honor employees’ effective
revocation of dues-checkoff authorizations and WE
WILL NOT continue to deduct union dues from their
wages after receiving notice of their union membership
resignations, where the terms of their voluntarily exe-
cuted checkoff authorizations do not clearly and ex-
plicitly impose any postresignation dues obligations on
them.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make whole, jointly and severally with
Food Processors Local 1046 of the Laborers’ Inter-
national Union of North America, the employees listed
in categories two and three of the remedy section of
the Board’s decision for any dues deductions from
their wages for the period following our receipt of no-
tice of their resignations from union membership, with
interest.
SMITHFIELD PACKING COMPANY, INC.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to honor employees’ effective
revocation of dues-checkoff authorizations and WE
WILL NOT continue to accept union dues deducted from
their wages after they have resigned from membership
in the Union, where the terms of their voluntarily exe-
cuted checkoff authorizations do not clearly and ex-
plicitly impose any postresignation dues obligations on
them.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL make whole, jointly and severally with
Smithfield Packing Co., Inc. where appropriate, the
employees listed in categories one, two, and three of
the remedy section of the Board’s decision for any
dues deductions from their wages for the period fol-
lowing their resignations from union membership, with
interest.
FOOD PROCESSORS LOCAL 1046 OF THE
LABORERS’ INTERNATIONAL UNION OF
NORTH AMERICA
Stephen C. Bensinger, Esq. and Sherrie T. Black, Esq., for
the General Counsel.
Thomas L. Ross, Vice President, Human Resources, of
Smithfield, Virginia, for the Respondent Employer.
Laurence E. Gold, Esq. (Connerton, Ray & Simon), of Wash-
ington, D.C., for the Respondent Union.
Victor C. Langhorne, pro se, of Smithfield, Virginia.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. On origi-
nal charges filed in Cases 5–CA–20106 and 5–CB–6180 by
Deloris Jones, an individual, on November 14, 1988, the Re-
gional Director for Region 5 of the National Labor Relations
Board issued a consolidated complaint on March 30, 1989,
which alleged, inter alia, that since October 31, 1988, Smith-
field Packing Company, Inc. (Respondent Smithfield) has en-
gaged in conduct which violates Section 8(a)(1) and (3) of
the National Labor Relations Act, and that, since the same
date, Food Processors Local 1046 of the Laborers’ Inter-
national Union of North America (Respondent Union) has
engaged in conduct which violates Section 8(b)(1)(A) and (2)
of the Act. In sum, the consolidated complaint alleged that
Respondent Smithfield violated Section 8(a)(1) of the Act by
refusing to honor revocations of dues-checkoff authorizations
of certain named employees notwithstanding the fact that
they had effectively resigned their membership in Respond-
ent Union, and that it had violated Section 8(a)(3) of the Act
by continuing, after such named employees resigned their
membership in the Union, to deduct union dues from their
wages and remit them to Respondent. Additionally, the con-
solidated complaint alleges that Respondent Union violated
Section 8(b)(1)(A) of the Act by refusing to honor revocation
of dues-checkoff authorizations of certain named employees
after they had effectively resigned their membership in the
Union, and it violated Section 8(b)(2) of the Act by continu-
ing to accept union dues deducted from the wages of such
employees by Respondent Smithfield notwithstanding that
such named employees had effectively resigned their union
membership. Respondent Smithfield and Respondent Union
filed timely answers denying they had engaged in the unfair
labor practices alleged. Thereafter, on May 24, 1989, Victor
Langhorne, an individual (Langhorne), filed the original
charges in Cases 5–CA–20479 and 5–CB–6297, and on Oc-
tober 27, 1989, the Regional Director for Region 5 issued an
order consolidating the four cases for trial together with a
second consolidated complaint. In sum, the alleged violations
set forth in the March 30, 1989 consolidated complaint were
realleged in the October 27, 1989 consolidated complaint and
the latter consolidated complaint alleged additional similar
violation of Section 8(a)(1) and (3) and Section 8(b)(1)(A)
and (2) by Respondents since on or about April 17 and May
553SMITHFIELD PACKING CO.
1 Pars. 7(c) and 10(c) were added to the complaint at the outset of the trial.
In sum, par. 7(c), with appropriate amendment of pars. 9(a) and (b), alleges
employees Doris Blount, Vincent Davis, Eva Holloman, Rosetta Tucker, Tony
Powell, and Major Riddick notified Respondent Union they were resigning
their membership on December 16, 1988, and Respondent Union thereafter
violated Sec. 8(b)(1)(A) and (2) by refusing to honor their revocation of dues-
checkoff authorization and by continuing to accept dues deducted by Respond-
ent Smithfield. Similarly, par. 10(c), with appropriate amendment to pars.
12(a) and (b), alleges employees Johnrene Cary and Norman Newby notified
Respondent Union they were resigning their membership on May 16, 1989,
and that Respondent Union violated Sec. 8(b)(1)(A) and (2) by refusing to
honor the resulting revocation of their dues-checkoff authorizations and by ac-
cepting dues which were deducted from the employees wages by Respondent
Smithfield. See G.C. Exh. 1-X, which is herewith received in evidence.
2 During the course of the hearing, the parties agreed to some 13 stipulations
which were read into the record. After the hearing was closed, the General
Counsel furnished undersigned and opposing counsel with a single typewritten
document which set forth the 13 stipulations. Noting that no party would be
prejudiced if the typed document were received in evidence and that receipt
of same would aid those reviewing the record in this case, I hereby receive
the typed stipulations, together with counsel for General Counsel’s transmittal
letter dated February 9, 1990, in evidence as ALJ Exh. 1.
3, 1989. The Respondents filed timely answers denying they
had violated the Act as alleged in the second consolidated
complaint.
The case was heard in Smithfield, Virginia, during the pe-
riod January 29 through 31, 1989.1 All parties appeared and
were afforded full opportunity to participate. On the entire
record,2 including consolidation of post-hearing briefs filed
by the parties, and from my observation of the demeanor of
the witnesses who appeared and gave testimony, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Jurisdiction is not in dispute. Respondent Smithfield, a
Virginia corporation, operates a meat packing plant in Smith-
field, Virginia, and during the 12-month period preceding the
issuance of both consolidated complaints it admittedly sold
and shipped from its Smithfield facility goods, products, and
materials valued in excess of $50,000 directly to points lo-
cated outside the State of Virginia. It is admitted by the Re-
spondents, and I find, that Respondent Smithfield is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that Respondent Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent Union represents a bargaining unit comprised
of 1200–1300 employees at Respondent Smithfield’s meat
packing plant located in Smithfield, Virginia. The Respond-
ents have been parties to a series of collective-bargaining
agreements, including one in effect during the period July 1,
1985, to June 2, 1989, and a successor agreement which is
now in effect. Article III of each agreement is identical and
states, in relevant part (Jt. Exhs. 1 and 2):
ARTICLE III
Check-Off
Upon written authorization by employees who are
members of the Union or who wish to become mem-
bers, the Company will make deductions for Union
dues in accordance with the stipulation in the voluntary
check-off authorization in an amount certified by the
Union to the Company. The Company will make de-
ductions for Union dues from all members of each
week of employment except in cases of layoff, leave of
absence, and termination. Back dues will be deducted
from Union members for a maximum of four (4) weeks
in the case of absence from work. The Company will
deliver by the 10th of each month, the sum to the Fi-
nancial Secretary of the Union or such officers of the
Union as it may designate in writing upon his receipt
therefor:
The authorization shall be as follows:
I hereby authorize and direct my employer to deduct
from my wages my dues owing to the Union and direct
that such amounts so deducted to be sent to the Sec-
retary-Treasurer of such Local Union for and on my be-
half.
This authorization and assignment shall be irrev-
ocable for the period of the existing contract between
my employer and the Union, or for one year, whichever
is less, and shall automatically renew itself for succes-
sive contract or annual periods, unless I give written
notice of my desire to revoke same to the Company and
the Union at least sixty (60) days, and not more than
seventy-five (75) days,before the periodic renewal dates
of this authorization and assignment. The periodic re-
newal date shall be determined by the date the author-
ization was signed.
The checkoff authorization forms signed by Respondent
Smithfield’s employees to cause union dues to be deducted
from their wages are as follows (G.C. Exh. 4):
Checkoff Authorization
I hereby authorize and direct my Employer to deduct
from my wages Initiation Fees (where applicable) and
Working Dues llll owing to Local Union No.
ll of the Laborers’ International Union of North
America and direct that such amounts so deducted be
sent to the Secretary-Treasurer of such Local Union for
and on my behalf.
This authorization and assignment shall be irrev-
ocable for the period of the existing contract between
my Employer and said Local Union, or for one year,
whichever is less, and shall automatically renew itself
for successive contract or annual periods, unless I give
written notice of my desire to revoke same to the com-
pany and to said Local Union at least sixty (60) days,
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 A separate application for union membership form is attached to the
checkoff authorization. See G.C. Exh. 4.
4 The complaint was amended to reflect the correct spelling of Pritchard’s
name and her status at the outset of the trial.
and not more than seventy-five (75) days before the periodic
renewal dates of this authorization and assignment.
Social Security No. llllllllllll
lllllllllllllllll Signed
Date llllllllllllllllll
All the alleged discriminatees involved in the instant case
executed a Local 1046 checkoff authorization form.3
On June 3, 1988, the Laborers’ International Union placed
its Local 1046 in trusteeship. Connie Ellis, an International
representative, was designated to be the trustee for Respond-
ent Union.
At some point during the summer of 1988, Respondent
Smithfield employee Russell Ricks, formerly vice president
and a steward of Local 1046, and other former officers of
the Local, were desirous of ending the trusteeship and re-
gaining control of the Local Union. Ricks discussed the situ-
ation with Victor Langhorne, a college graduate who had
acted as a consultant to Local 1046, and subsequently as a
secretarial employee of the Local, before the trusteeship was
imposed. Their discussions led to the scheduling of a meet-
ing at Jones Bar and Grill in Smithfield on August 30, 1988.
Some 17 to 24 Respondent Smithfield employees, including
former executive board members of the Local, attended the
meeting. After designating themselves to be the ‘‘Ad Hoc
Committee of Concerned Employees of Smithfield Packing
Company,’’ they requested that Langhorne compose a letter
to Laborers’ International General President Angelo Fosco.
Additionally, Langhorne testified he was requested to re-
search various strategies and options open to them and to
find a location where a second meeting could be held on
September 13, 1988.
The dissident members of Respondent Union attended a
second meeting at the Brown AME church in Smithfield,
Virginia, on September 13, 1988. Between 50 and 100 em-
ployees attended. During the course of the meeting the sub-
jects discussed included resignation from Respondent Union,
revocation of checkoff authorizations previously executed by
employees, and the formation of an independent union.
Langhorne moderated the discussion and explained his un-
derstanding of the ‘‘quid pro quo’’ line of cases previously
decided by the Board. The employees attending the meeting
voted to establish an independent union which would be
called the Independent Food Workers Union (IFWU). A third
meeting was scheduled to be held at the same location on
September 27, 1988.
Prior to the time the September 27, 1988 meeting was
held, Langhorne appointed himself the interim president of
IFWU, and he appointed former Local 1046 Vice President
Ricks to be the vice president of IFWU. Additionally, he
drafted a resignation/revocation form which was to be pre-
sented to Respondent Smithfield employees who wished to
withdraw their membership in Respondent Union, and to re-
voke the checkoff authorizations they had previously exe-
cuted in favor of Respondent Union. General Counsel’s Ex-
hibit 2(a)–1 is a representative sample and states:
SMITHFIELD PACKING CO.
Smithfield, VA 23430
TO WHOM IT MAY CONCERN:
I hereby revoke authorization for union dues checkoff
deduction for Food Processors Local Union 1046 as I
am also hereby immediately resigning membership in
said Local.
I am providing a duplicate notice of this revocation to
the union.
Please note that the National Labor Relations Board has
held that when an employee effectively resigns mem-
bership in the union, the financial obligation he under-
took as a quid pro quo for such membership also
ceases, and the dues checkoff is revoked by operation
of law, more restrictive language in the checkoff agree-
ment notwithstanding (Labor and Employment Law of
Virginia, 1987, p. 27).
/s/ Mabel E. Artis
lllllllllll
Signature/Name
225–46–8230
lllllllllll
Social Security Number
10–6–88
lllllllllll
Date
cc
Food Processors Local 1046
c/o Mary Pritchett, Acting Business Agent
When Langhorne appeared at the September 27, 1988
meeting, he produced approximately 500 blank copies of the
above-described resignation/revocation document. Some 40
employees and the acting business manager of Local 1046,
Mary Pritchard, attended the meeting.4 Langhorne testified
he informed those attending that if they wanted to resign
their membership in Local 1046 and have their dues-checkoff
authorizations revoked, they should execute two resig-
nation/revocation documents forms and turn in a copy to
both Respondent Smithfield and Respondent Union. He testi-
fied he suggested an alternative with respect to delivery of
the forms by indicating he would serve executed forms on
Respondent Union if employees delivered executed forms to
him. He indicated he would remain available at the church
at quitting time periods for the next few weeks.
During the months of September and October 1988,
Langhorne, assisted by Respondent Smithfield employees
Clara Davis, James Jones, and Ricks, collected executed
resignation/revocation forms from approximately 87 different
Respondent Smithfield employees. Langhorne testified he
personally collected 60–65 forms, and that Davis, Jones, and
Ricks each collected 10–12 forms each. The parties stipu-
lated that the signers of the 87 forms understood that some-
one would arrange, shortly after they signed the letters
(forms) for the appropriate submission of the letters to Re-
spondent Union (see G.C. Exhs. 2(b)–1 through 87). It is
uncontradicted that Langhorne hand-delivered the above-de-
scribed 87 executed resignation/revocation forms to Respond-
ent Union on October 31, 1988, together with a cover letter
which he prepared but was signed by Deloris Jones. The par-
ties stipulated that Respondent Union considered each of the
555SMITHFIELD PACKING CO.
5 App. A to the consolidated complaint contains the names of 77 alleged
discriminatees. During the trial, the General Counsel was permitted to amend
the complaint by deleting the names Gwendolyn Jackson, John Lawrence,
Richard Pruden, and Wanda Whitfield from App. A and moving them to App.
B. In its brief, the General Counsel moved that the complaint be further
amended by deleting the name Carolyn Newby from App. A and inserting it
in App. B. That motion, which is not opposed, is hereby granted. The end
result of the described amendments to complaint is that App. A to the com-
plaint now names 72 alleged discriminatees. As noted, infra, the parties are
agreed that each of the 72 employees now named in App. A notified both Re-
spondent Union and Respondent Smithfield during the fall of 1988 that they
were resigning their membership in Local 1046, and that they wished to re-
voke their dues-checkoff authorizations in favor of Respondent Union.
6 The General Counsel moved in its brief, without opposition, to delete the
names of Bradshaw, Betty Goodwin, and Mildred Wynn from Apps. A and
B of the complaint. The motion is hereby granted.
employees whose resignation/revocation forms are included
(G.C. Exhs. 2(b)–1 through 87) to have resigned their mem-
bership in the Respondent Union effective October 31,
1988.5
On receipt of 87 above-described resignation/revocation
documents, Trustee Ellis caused his secretarial employees to
ascertain whether any employees had submitted resigna-
tions/revocations of checkoff authorization not sooner than
75 days nor less than 60 days prior to the anniversary date
of their then-current checkoff authorization, copies of which
were on file at both Respondents. It was ascertained that em-
ployees Betty Goodwin, Eledline Bradshaw, and Mildred
Wynn had submitted dues-checkoff authorization revocations
within the prescribed period prior to the anniversary dates of
the checkoff authorizations they had executed. Accordingly,
Ellis notified Respondent Smithfield’s personnel office to
cease deduction of union dues from the wages of such em-
ployees if it had also received timely notification of the em-
ployee’s intent to revoke their checkoff authorizations. The
parties stipulated that the dues were last checked off by Re-
spondent Smithfield from the wages of Bradshaw, Betty
Goodwin, and Mildred Wynn on October 30, 1988.6 While
the record reveals that employee James Goodwin also gave
timely notice within his anniversary date of his intent to re-
voke his dues-checkoff authorization, it was stipulated that
Respondent Smithfield continued to deduct union dues from
his wages until the pay period ending November 17, 1988.
It is uncontradicted that with exception of Bradshaw, the
two Goodwins and Mildred Wynn, all the employees who
submitted resignation/revocation documents to the Respond-
ents on or near October 31, 1988, were considered to have
resigned their membership in the Union but were not deemed
by either Respondent to have submitted timely dues-checkoff
authorization revocations within either of the window periods
set forth in the contract, i.e., within not more than 75 nor
less than 60 days from the anniversary date on the card
and/or not more than 75 nor less than 60 days prior to the
expiration of the then current collective-bargaining agree-
ment. The Respondent Union notified all involved employees
except the above-named employees who had submitted time-
ly checkoff authorization revocations by letter dated Decem-
ber 8, inter alia, that it would honor their membership res-
ignation but ‘‘your attempt to revoke that authorization was
ineffective because, contrary to their requirements of article
III of the collective-bargaining agreement, your request was
not received by the Union at least 60 days and not more than
75 days before the periodic renewal date of that authoriza-
tion.’’
Langhorne testified that subsequent to October 31, 1988,
he received several additional executed resignation/-
revocation documents from Respondent Smithfield employ-
ees. It is uncontradicted that Respondent Union received by
mail six additional resignation/revocation documents from
Respondent Smithfield employees on December 16, 1988
(Doris Blount-a/k/a Doris Boone, Vincent Davis, Eva
Holloman, Tony Powell, Major Reddick, and Rosetta Tuck-
er). Respondent Union sent each of the named employees let-
ters honoring their membership resignations, but refusing to
honor their revocations of checkoff authorizations. Respond-
ent Smithfield admittedly was served by the named employ-
ees with copies of their resignation/revocation documents,
but it continued to deduct moneys from their pay and for-
ward same to Respondent Union.
Langhorne testified that he conducted a meeting at the
Brown AME church in early April 1989 and that 15 to 20
Respondent Smithfield employees attended. He indicated he
distributed additional copies of the resignation/revocation
form he had prepared during the fall of 1988 to the employ-
ees during the meeting, indicating to those present that if
they executed two forms, he would undertake to deliver them
to both Respondents during the contractual checkoff author-
ization revocation period which preceded contract expiration
and was set forth in article III of the subsisting contract (stip-
ulated to be April 18 through May 3, 1989). Langhorne ex-
plained he would once again remain available at the church
at convenient times to accept executed forms. He indicated
he informed those present that he hoped to receive all exe-
cuted forms by April 25 or 26, 1989.
According to Langhorne, he, with the assistance of Davis,
Jones, and Ricks, collected approximately 40 to 50 newly ex-
ecuted resignation/revocation forms from Respondent Smith-
field employees during April 1989. On April 27, 1989,
Langhorne mailed 103 executed resignation/revocation forms
to both Respondents together with identical cover letters
written on IFWU stationery which designated him as presi-
dent of that Union. The body of the letters (G.C. Exhs. 3(a)–
106 and G.C. Exhs. 3(b)–103) stated:
I am enclosing 103 employees written notice of rev-
ocation of their authorization for deduction of union
dues.
Note that I am giving you their written notification
at least sixty (60) days, and not more than seventy-five
(75) days before the termination, July 2, 1989, of the
current collective bargaining agreement.
The resubmission of written notice by some employ-
ees at this time does not detract from the pending for-
mal charges of unfair labor practices referenced above.
For convenient reference I have attached a list of the
names of the employees whose written notices are en-
closed.
Langhorne indicated during his testimony that in addition to
sending the Respondents resignation/revocation documents
which had been newly executed during the spring of 1989,
he included in the April 27, 1989 packet photocopies of
those resignations/revocations which had been executed dur-
ing the September–December 1988 period if the employees
had not executed fresh documents during the spring of
556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Langhorne testified he did not submit employee George Reed’s 1988 form
because he had been advised Reed did not want it submitted.
8 The record reveals Respondent Smithfield employee Barbara Wilson exe-
cuted resignation/revocation forms on December 4, 1988, but they were not
submitted to either Respondent during 1988. Langhorne included her 1988
forms in the April 27, 1989 mailing to both Respondents.
9 Charging Party Jones was not included in the partial settlement because
she failed to serve a spring resignation/revocation document on Respondent
Smithfield.
10 The employees whose names were deleted are: Willie Addison, James
Ballard, Doris Boone/Blount, Franklin Boone, Mamie Boone, Elsie Chatman,
Clara Davis, Ursula Day, Gwendolyn Debrew, Odell Deloatch, Eunice Dunn,
Timothy Edwards, Charles Eley, Mary Evans, Sarah Greene, Augustus Holley,
Theodore Holley, Jacqueline Holloman, Juanita Holloman, Mary Holloman,
James Jones, Ralph Jones, Rosetta Jones, Walter Jones, William Key, Derek
Outlaw, Valerie Outlaw/Roberts, Otis Palmer, Howard Perry, Gladys Pittman,
Richard Pruden, Shelton Rankins, Russell Ricks, William Savage, Melvin
Slade, Sandra Smith, Harlee Turner, Betty Vaughan/Artis, Bennie Watford,
Richard Watford, Deneen Whitaker and Dennis White.
11 By note dated July 16, 1989, employee Major Riddick informed Respond-
ent Union he desired to ‘‘get out of the Union.’’ Respondent Union did not
respond to his note.
1989.7 Langhorne indicated that only one employee, John
Henry Davis, expressly asked him to resubmit the form he
had executed in 1988. Langhorne failed to indicate that any
of the remaining 1988 signers of the resignation/revocation
forms were aware that he had resubmitted their 1988 forms.8
At the time Langhorne submitted resignation/revocation
forms to the Respondents in April 1989, former Respondent
Smithfield employees Gail R. Cooper and Tracy C. Hill were
no longer employed by Smithfield. Cooper’s employment
ceased January 3, 1989, and Hill’s employment ceased on
December 9, 1988. The General Counsel, moved without op-
position, that their names be deleted from Appendix C of the
complaint, and I hereby grant that motion.
Langhorne indicated during his testimony that immediately
after IFWU was formed in September it commenced to ob-
tain signatures on a petition to permit it to request that a de-
certification election be held at Respondent Smithfield. Dur-
ing cross-examination, when questioned about the cir-
cumstances which prevailed during the month of April 1989,
he acknowledged that both IFWU and Local 1046 were seek-
ing to cause employees to support their respective Unions,
and that employees were switching their allegiance from one
Union to another.
With respect to the extent of communication with those
employees whose 1988 resignation/revocation documents
were submitted in late April 1989, Langhorne admitted em-
ployees were not contacted individually, in person or other-
wise, before or after their 1988 forms were resubmitted.
Trustee Ellis admitted during his testimony that he re-
ceived the packet of resignation/revocation forms mailed by
Langhorne on or about May 1, 1989. It is uncontradicted that
Respondent Union failed and refused to honor both the mem-
bership resignations and the attempted checkoff authorization
revocations of all employees whose forms were received by
it on May 1, 1989. Ellis acknowledged that he advised
Langhorne of Respondent Union’s intended course of action
by letter dated May 10, 1989, the body of which states:
Twice during the last week I have received from you
in the mail ‘‘To Whom It May Concern’’ statements,
each stating that the signer ‘‘revoke(s) authorization for
union dues checkoff deduction for Food Processors
Local Union 1046 as I am hereby immediately resign-
ing membership in said Local.’’ Under the checkoff
rules, an employee can revoke checkoff by giving writ-
ten notice to both the Union and the Company at least
60 and no more than 75 days before the expiration date
of the collective bargaining agreement. Most of the
forms you mailed to me, however, show signatures
dated long before this window period. Also, we have
been contacted by numerous employees whose names
appear on some of the forms provided, including em-
ployees whose names appear with dates during the win-
dow period, who have told us that the forms bearing
their names should be disregarded by the Union.
The Union will honor any valid resignation from mem-
bership and any checkoff revocation properly submitted
during the window period. However, in light of the
facts that we have no reason to believe that anyone has
authorized you to transmit these forms to the Union,
that most are dated outside the checkoff revocation
window period, and that some employees have told us
to disregard the forms bearing their names, the Union
cannot simply honor these forms. We will need direct
confirmation from employees whose resignations and
revocations were actually signed during the window pe-
riod that they authorized you to transmit them to the
Union and the company.
I am sending a copy of this letter to every employee
whose name appears on a form dated during the win-
dow period.
The employees who received a copy of the above-quoted let-
ter (G.C. Exh. 8) were, with exception of employees Alex-
ander Hall and Deloris Jones,9 all included in the partial set-
tlement agreement entered by the parties shortly before the
trial in the instant proceeding began, and their names have
been deleted from Appendices C and D to the complaint.10
When he appeared as a witness, Ellis testified he was of
the view in the spring of 1989 that checkoff authorization
revocations were not timely unless they were both dated and
delivered to both Respondents during the window period.
While he claimed employees had told him before he received
the forms in the spring to disregard their forms, he failed to
identify specific employees who told him that. Finally, he ad-
mitted that Langhorne’s involvement in the delivery of the
forms was a factor he considered when deciding how the
forms would be processed.
The record reveals that during the period extending from
May 14–22, 1989, 14 employees sent Respondent Union
notes advising it they wished to ‘‘resign’’ or ‘‘get out’’ of
Local 1046 (S. Banks; D. Batten; T. Gholston; B. Harris; T.
Johnson; J. Lawrence; J. Robinson; R. Whitfield; P. Ricks;
L. Stokes; E. Woodis; E. Wynn; Johnrene Cary; and Norman
Newby).11 Additionally, Respondent Smithfield employee
Darryl Sessons submitted a May 22, 1989 letter to Respond-
ent Union which stated: ‘‘I WILL LIKE FOR YOU TO
STOP TAKING UNION FEE OUT OF MY CHECK.’’
While Ellis testified at trial that Respondent Union found the
‘‘resignation’’ letters to be sufficient to effectuate resignation
from Local 1046, most of the above-named employees were
557SMITHFIELD PACKING CO.
12 See Postal Service, 279 NLRB 40 (1986), enf. denied 827 F.2d 548 (9th
Cir. 1987), and Postal Service, 280 NLRB 1429 (1986), enf. denied 833 F.2d
1195 (6th Cir. 1987). 13 See, for example, Postal Service, 280 NLRB 1439 (1986).
mailed letters such as one dated May 30, 1989, and ad-
dressed to Shirley Banks which stated (G.C. Exh. 9(a):
Dear Ms. Banks:
On May 24, 1989, the office of Food Processors’
Local Union 1046 received through the mail a form
signed with your name that states that the signor ‘‘here-
by revoke(s) authorization for union dues checkoff de-
duction for Food Processors’ Local Union 1046 as I am
hereby immediately resigning membership in said
Local.’’ This form was dated May 17, 1989.
Because Local 1046 did not receive this form from
you, Local 1046 cannot verify that, in fact, you signed
this form and that you authorized it to be sent to the
Union for you. In any event, however, please be ad-
vised that the form is dated outside of the period set
forth in the dues check-off rules during which an em-
ployee can revoke his or her dues check-off, namely, at
least 60 and no more than 75 days before the anniver-
sary date of the check-off authorization, or between 60
and 75 days before the expiration date of the collective
bargaining agreement. Accordingly, your dues check-off
will continue. However, your right to resign from
Union membership is not restricted to any particular
dates. In order for the Union to verify that you intended
to resign your Union membership, it will be necessary
for you to advise me that you signed the form and au-
thorized this form to be sent to my office. You may do
so by writing to me at the above address, or by noti-
fying me or Acting Assistant Business Manager Mary
Pritchard in person, that you signed the form and au-
thorized it to be sent to our office for you.
Yours truly
/s/Connie L. Ellis
Trustee, Local 1046
While Ellis claimed the letters sent to Banks, Sessons, and
others were sent erroneously, Respondent Union did not, if
and when it discovered the error(s), seek to rectify them. The
record fails to reveal that any of the above-named employees
responded after receiving correspondence from Respondent
Union in late May or early June 1989.
Contentions of the Parties
Noting two courts have rejected the quid pro quo theory
utilized by the Board in San Diego District Council of Car-
penters (Campbell Industries), 243 NLRB 147 (1979), and
its progeny,12 the General Counsel contends I should apply
the rationale of Pattern Makers League v. NLRB, 473 U.S.
95 (1985), in the instant case and find the Respondents vio-
lated the Act as alleged by depriving the alleged
discriminatees of their Section 7 right to be completely free
of the Union on tendering their membership resignations. In
the alternative, if it is concluded the alleged discriminatees’
checkoff authorizations remained in force after the employ-
ees resigned their membership, the General Counsel contends
the zero dues theory advanced by Board Member Johansen
should be utilized.13
Respondent Union, observing that Section 8(b)(1)(A) of
the Act allows unions to enforce those rules which impair no
policy Congress has imbedded in the labor laws, contends
that enforcement of a checkoff authorization of a nonmember
not only impairs no such policy, but it serves the same poli-
cies that accord vitality to union-security clauses covering
nonmembers. It contends the Pattern Makers rationale is not
applicable in checkoff-authorization situations, and claims it
acted lawfully when the alleged discriminatees sought to re-
voke their checkoff authorizations in untimely fashion. It
contends the quid pro quo theory and Member Johansen’s al-
ternative theory are not legally sustainable.
Analysis and Conclusion
While the General Counsel seeks in the instant case to
cause me to ignore Board precedent and thereafter resolve
the issues presented in this case by employing a Pattern
Makers or ‘‘zero amount dues’’ analysis, the rule applicable
to the issues raised here is set forth in Machinists Local 2045
(Eagle Signal), 268 NLRB 635 (1984), and I am obligated
to follow that precedent. In Eagle Signal, the Board stated
(at 637):
It is established Board law that a dues-checkoff au-
thorization, or wage assignment as it is called in this
case, is a contract between an employee and his em-
ployer and that a resignation of union membership ordi-
narily does not revoke a checkoff authorization. How-
ever, a resignation will, by operation of law, revoke a
checkoff authorization, even absent a revocation re-
quest, where the authorization itself makes payment of
dues a quid pro quo for union membership. This is so
whether or not the resignation is made during the pe-
riod for revocation set forth in the authorization itself.
[Footnotes omitted.]
The language in the Eagle Signal checkoff authorization
which led the Board to conclude the authorization itself made
the payment of dues a quid pro quo for union membership
was a direction that the Employer ‘‘Deduct from my pay
. . . my regular monthly Union dues . . . in accordance with
regular membership dues in the International Association of
Machinists and Aerospace Workers.’’ Similar language in
checkoff authorizations led to like conclusions in Postal
Service, 279 NLRB 40 (1986), and Postal Service, 280
NLRB 1439 (1986), and in Food & Commercial Workers
Local 425 (Hudson Foods), 282 NLRB 1413 (1987).
In the above-cited cases, the Board concluded the language
in the checkoff authorizations, standing alone, established the
moneys checked off were the quid pro quo for union mem-
bership. In 1986, it decided Hearst Corp., 281 NLRB 764
(1986), a case in which it looked beyond the authorization
to reach the conclusion that moneys checked off were the
quid pro quo for membership. There, the authorization pro-
vided for the deduction of ‘‘an amount equal to all member-
ship dues lawfully levied against me by the Guild.’’ The ad-
ministrative law judge concluded the language in the author-
ization did not equate union membership with checkoff and
558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
found that resignation of membership did not, by operation
of law, revoke the checkoff authorizations. The Board con-
sidered contract language in conjunction with the authoriza-
tion language and reversed the judge. It noted the contract
provided, in relevant part, that ‘‘upon an employee’s vol-
untary assignment, the Publisher shall deduct from the salary
account of such employee and pay to the Guild . . . all
membership dues levied by the Guild for the current month’’
(emphasis supplied); and that neither the contract nor the au-
thorization made any provision for ‘‘financial core’’ mem-
bership in the Union. It found the authorization language, the
contract language, and the absence of provision for ‘‘finan-
cial core’’ membership in the Union established the checkoff
moneys were a quid pro quo for membership.
Here, the checkoff authorization signed by employees au-
thorized the deduction of ‘‘Initiation Fees (where applicable)
and Working Dues ll owing to Local Union No. ll’’
[emphasis supplied]. Article III of underlying contract pro-
vides, inter alia, that:
Upon written authorization by employees who are
members of the Union or who wish to become mem-
bers, the Company will make deductions for Union
dues in accordance with the stipulation in the voluntary
check-off authorization in an amount certified by the
Union to the Company.
It is uncontested that the applicable collective-bargaining
agreement does not provide for ‘‘financial core’’ membership
in the Union, and it is noted Virginia is a ‘‘right to work’’
State.
At first blush, it would appear that the facts in the instant
case are analogous to those in Hearst Corp., and a conclu-
sion that the moneys taken from the pay of employees pursu-
ant to their checkoff authorizations constitute a quid pro quo
for membership in the Union. I conclude, however, that such
a conclusion is not warranted because article III of the con-
tract provides for the deduction of ‘‘Union dues,’’ while the
individual authorizations authorize the deduction of ‘‘Work-
ing Dues.’’ The record fails to reveal why the language
which appears in the authorizations fails to track the lan-
guage in the contract, and the record fails to reveal the
meaning of the term ‘‘Working Dues.’’ In the circumstances
described, I find the record fails to establish that moneys de-
ducted by the Employer pursuant to individual authorizations
signed by employees constitute a quid pro quo for union
membership. Accordingly, I find that by resigning their
membership in Respondent Union, employees involved here-
in did not, by operation of law, revoke their check authoriza-
tions.
The General Counsel’s primary contention in the instant
case was that employee resignation of union membership
automatically revoked contractual checkoff arrangements vol-
untarily entered by employees with their Employer. A sec-
ondary contention was that certain employees submitted au-
thorization revocations within an appropriate window period,
but such authorizations were not honored by either Respond-
ent. As indicated, supra, when the evidence revealed that
three (3) employees submitted timely authorization revoca-
tions on or about October 31, 1988, and that the Respondents
honored such authorization revocations in timely fashion, the
names of those employees were withdrawn from the com-
plaint, i.e., Betty Goodwin, Eledline Bradshaw, and Mildred
Wynn. As also indicated, supra, it is uncontested that a
fourth employee, James Goodwin, submitted an authorization
revocation to both Respondents on October 31, 1988, and
that document was served on them not more than 75 days
nor less than 60 days from the anniversary date of the au-
thorization. Although the record reveals the Respondents
honored James Goodwin’s authorization revocation by ceas-
ing to deduct moneys from his pay on November 17, 1988,
the General Counsel elected to leave Goodwin’s name in the
complaint, thus contending Respondents violated the Act by
failing for slightly more than 2 weeks to honor his authoriza-
tion revocation. In the absence of evidence which would re-
veal the anniversary date of Goodwin’s checkoff authoriza-
tion, I find the contention to be without merit. A final issue
to be resolved concerns Charging Party Deloris Jones. The
record reveals Jones submitted a checkoff authorization dated
April 20, 1989, to Respondent Union on May 1, 1989. When
the settlement agreement described, supra, was entered to re-
move certain employees from the complaint because the evi-
dence revealed they had submitted timely authorization rev-
ocations during the window period preceding expiration of
the then-subsisting contract, Jones was excluded from the
settlement agreement because she had not served a revoca-
tion document bearing a contract expiration window period
date on Respondent Employer. Instead, Langhorne mailed
Respondent Employer a photocopy of a resignation/-
revocation document Jones had executed in 1988 when he
sent the 1989 spring packet of documents to Respondent
Smithfield. The checkoff authorization form signed by Jones
and other employees provides that revocation is to be accom-
plished by ‘‘written notice of my desire to revoke same to
the Company and the Union at least sixty (60) days and not
more than seventy-five (75) days, before the periodic renewal
dates of this authorization and assignment.’’ In my view, the
revocation procedure indicated is clearly stated and the pro-
cedure set forth is reasonable. I find Jones failed to accom-
plish revocation of her checkoff authorization because she
failed to give Respondent Employer appropriate notice of her
intent to revoke.
In sum, I conclude that the General Counsel has failed to
prove that Respondent Smithfield and Respondent Union en-
gaged in any of the violations alleged in the complaint. Ac-
cordingly, I recommend the complaint be dismissed in its en-
tirety.
CONCLUSIONS OF LAW
1. Smithfield Packing Company, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondents have not engaged in the unfair labor prac-
tices alleged in the complaint.
[Recommended Order for dismissal omitted from publica-
tion.]