American Nurses' Association

National Labor Relations Board - Board Decisions

Aug 1, 1980

250 N.L.R.B. 1324 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Nurses' Association and Deborah Glick
Graham and Rita Rupp.
American Nurses' Association Staff Union and Deb-
orah Glick Graham and Rita Rupp. Cases 17-
CA-8733, 17-CA-8808, 17-CB-2043, 17-CB-
2060, 17-CB-2065, and 17-CB-2087
August 1, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On March 27, 1980, Administrative Law Judge
Michael D. Stevenson issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
As we agree with the Administrative Law Judge that resignation
from the Union does not constitute revocation of dues-checkoff authori-
zations, and that union security and dues ckeckoff are distinct and sepa-
rate matters, we find it unnecessary to rely on his finding that the union-
security "opt-out" provision of the new bargaining agreement does not
apply to employees who were already members of the Union In any
event, the checkoff authorizations of the employees are not affected by
the execution of the "opt-out" forms.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge:
This case was heard before me in Kansas City, Kansas,
on October 16 and 17, 1979,1 pursuant to three consoli-
dated complaints issued by the Regional Director for
Region 17, as follows:
(I) On April 18, 1979, Cases 17-CA-8733 and 17-CB-
2043, Deborah Glick Graham, the Charging Party, and
American Nurses' Association and American Nurses' As-
sociation Staff Union, Respondents.
I All dates herein refer to 1978., unless otherwise indicated.
250 NLRB No. 175
(2) On May 25, 1979, as to Cases 17-CB-2065 and 17-
CB-2087, Rita Rupp, the Charging Party, and American
Nurses' Association Staff Union, Respondent.
(3) On August 15, 1979, Cases 17-CA-8808 and 17-
CB-2060, Rita Rupp, Charging Party, and American
Nurses' Association and American Nurses' Association
Staff Union, Respondents.
It is alleged in complaints 17-CA-8733, 17-CB-2043,
17-CA-8808, and 17-CB-2060 that Respondent Employ-
er, at the insistence of Respondent Union, refused to
honor valid revocation of union dues-checkoff authoriza-
tions in violation of Sections 8(a)(l) and (3) and
8(b)(1)(A) of the National Labor Relations Act, as
amended (herein called the Act). It is also alleged in
amended complaint 17-CB-2065 and 17-CB-2087 that
Respondent Union fined 13 employees for crossing a
picket line during a strike when said employees either
were no longer members of the Union or never had been
members of the Union, in violation of Section 8(b)(l)(A)
of the Act.
Issues2
(1) Whether Respondent Union violated the Act by
fining employees for crossing a picket line during a strike
when said employees either were not members of the
Union at the time of crossing the picket line or had
never been members of the Union.
(2) Whether Respondent Employer and Respondent
Union violated the Act by refusing to honor or causing a
refusal to honor valid employee revocation of dues-
checkoff authorizations.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, Respondent Employer,
and Respondent Union.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. RESPONDENT EMPLOYER'S BUSINESS
Respondent Employer (hereinafter called the Employ-
er) admits that it is a District of Columbia corporation
engaged in the promotion of professional educational ad-
vancement and welfare of nurses, and having its princi-
pal office and headquarters located in Kansas City, Mis-
souri. It further admits that during the past year, in the
course and conduct of its business, it has provided serv-
ices valued in excess of $50,000 directly to individuals
outside the State of Missouri. Accordingly it admits, and
I find, that it is an employer engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2 I have taken the liberty of reversing the order of the issues presented
to me for decision only because it seemed more convenient for me to do
so.
1324
AMERICAN NURSES' ASSOCIATION
II. THE IABOR ORGANIZATION INVOLIVED
Respondent Union (hereinafter called the Union)
admits, and I find, that it is a labor organization within
the meaning of Section 2(5) of the Act.
II1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts (Union Fine Case)
The Union was formed in early January 1976, for the
purpose of engaging in collective bargaining with and
representing employees of the American Nurses' Associ-
ation, the Employer. 3 The operations of the Union were
governed by the bylaws which evidently were adopted
in December 1976. (Jt. Exh. 5a and 5b.)
Article 111 of the Union's bylaws reads as follows:
Membership in the Union shall be open to all per-
sons of common interests who have signed an appli-
cation for membership and shall have satisfied the
then current financial obligations required to obtain
and/or maintain membership in good standing. The
application for membership shall substantially pro-
vide that the applicant agrees to be bound by these
bylaws and such amendments thereto as may there-
after be lawfully made and by any rules, regulations
and orders existing or thereafter lawfully enacted.
Notwithstanding the requirements of article III above,4
no person signed a membership application prior to No-
vember 1, as the Union did not use membership applica-
tions. In lieu of a membership application, the Union re-
quired the payment by the applicant of an initiation fee
and monthly dues. In November 1977, and again in July,
the Union conducted a membership drive and waived
initiation fees for periods of 2 weeks each occasion. Sub-
sequent to November 1, on advice of counsel, the Union
caused to be printed and used membership applications
both for all employees then paying dues and for all new
employees who joined the Union.
Between early January 1976 and November 1, the only
form distributed by the Union and signed by its alleged
members was the checkoff authorization form. In the
case of persons desiring to make direct payment of dues
which was a permissible alternative form of dues pay-
ment, no form was signed. Of the 13 employees named in
Employee
Linda C. Chase
Pat Clouser
Betty Joe Emery
Charles Fanning
Debbie Graham
Margaret Irminger
Ruth Lewis
Checkoff Authoriz. Revoc. of Authoriz.
11/21/77
11/18/77
11/22/77
11/29/77
12/2/77
11/30/77
12/2/77
11/22/78
11/17/78
10/19/78
& 11/13/78
9/20/78
& 11/21/78
11/24/78
& 11/23/78
10/18/78
& 11/24/78
10/2/78
& 10/10/78
& 11/27/78
paragraph 6 of the amended complaint 17-CB-2065 and
17-CB-2087, 5 only Connie Weimer, in October, paid the
sum of $30 directly to Respondent Union. The other 12
who are listed below, all executed checkoff authorization
forms. This form reads as follows:
Assignment and Authorization
I hereby assign to the American Nurses' Associ-
ation Staff Union ("Union"), and authorize the
American Nurses' Association ("ANA") to deduct
from any salary earned or to be earned by me as an
employee of ANA, an amount equal to all my
Union membership dues and membership assess-
ments, as certified by the Treasurer of the Union. I
further authorize and request ANA to remit the
amount so deducted to the Union not later than two
(2) working days following a regular pay day. This
assignment and authorization shall be irrevocable
for one (I) year from date or until the termination
date of the collective bargaining agreement between
the Union and ANA, whichever is sooner, and shall
renew automatically with the same irrevocability
for successive like periods, unless terminated by me
in writing within ten (10) days prior to the expira-
tion of any irrevocable period. Such written termi-
nation shall be effectuated by certified mail to ANA
and the Union.
The following summary reflects the names of the 12
employees, plus Weimer where appropriate, the dates on
which they signed checkoff authorizations permitting the
Employer to deduct from their wages and remit an
amount equal to dues and assessments to the Union, the
dates of postmark of any written resignations sent by
these employees to the Union (or in the case of tele-
grams, the date appearing on the face of the telegram),
the dates of any written notices to revoke their checkoff
obligations, and the dates on which they submitted to the
Employer and the Union notice of their intent not to pay
dues and fees or the equivalent to either the Union or to
a charitable organization (these dates appear under the
column "opt-out" forms). In addition, the summary in-
cludes the amount of fines levied. This is followed by a
description of the employees' participation in union ac-
tivities.
Resignedfrom Union Opt-Out Fines Levied
10/4/78
10/19/78
& 11/13/78
9/22/78
& 11/28/78
9/21/78
10/5/78
9/21/78
11/2/78
11/2/78
11/2/78
11/2/78
11/6/78
11/2/78
11/7/78
$731.00
271.76
91.62
107.04
50.00
207.31
150.00
I The Union is an independent union and is not affiliated with any
other labor organization
4 In addition, a memorandum of January 2, 1976, from the Union to
ANA Nonexempt Staff reads in pertinent part:
At this stage it is essential that membership forms and dues become
established. Enclosed in [sic] an application [G.C. Exh. 2a.]
s Par. 6 reads as follows:
On or about February or March, 1979, the Respondent [Union] im-
posed fines on the below-named employees engaged in protected.
concerted activity of ceasing to engage in the strike referred to
above in par. 5 . [Said strike lasted from on or about September
21, 1978, to on or about October 31. 1978 ] G C Exh IA]
1 325
DECISIONS OF NATIONAL LABOR RELATIONS BO)ARD
Linda Ross 7/17/78 10/,
David Schnabel 12/2/77 11/2
Janet Gilmore Shine 7/17/78
Denise Vogel 11/21/77 11/.
Connie Weimer
Description of Employee Participation in Union
Activities
6/78
5/78
2/78
Linda Campbell Chase served as an elected member of
the Union's collective-bargaining negotiating committee
in 1977. She was also elected and served as an officer-at-
large for the Union during 1977. During July, she attend-
ed two regular meetings held by the Union, and signed
attendance sheets at those meetings.6 She also voted in
an internal union election for officers in August by mail
ballot.
Pat Clouser attended one regular meeting called by the
Union in March 1977 and two in July, and she was elect-
ed to be a member of the collective-bargaining negotiat-
ing committee in 1977.
Donna Cooper attended one regular meeting of the
Union held in April 1977 and two in July. She also was
nominated for a position on the 1977 collective-bargain-
ing negotiating committee in January 1977.
Betty Jo Emery was nominated and was elected to the
positions of secretary of the Union and member of the
grievance committee in 1978. She attended one regular
meeting in July and two in October. She voted in the
January election for officers, in the January election of
the various committees, in the August special election,
and in the two separate elections for vice president
which were also held during April.
Charles Fanning attended one regular meeting of the
Union held in July, signing the attendance sheet at that
meeting.
Debbie Graham attended one regular meeting in April
1977 and one in November 1977. She voted in the Janu-
ary election of officers, and again in the special election
held in August.
Margaret Irminger did not attend any union meetings,
never voted in a union election, and held no offices or
committee positions.
Ruth Lewis was nominated for a position on the nego-
tiating committee in 1977 but was not elected. She at-
tended one regular meeting of the Union in July. She
voted in the election for officers in January, and she also
voted in the special election held in August by the
Union.
Linda Ross attended one regular meeting in April.
David Schnabel attended one regular meeting held by
the Union in September 1976, one in November 1977,
a Prior to September 20, union meetings were open to anyone, but
only employees who were current in the payment of dues or amounts
equal to dues were allowed to vote After September 20. only those em-
ployees who paid dues or amounts equal to dues and who had not sub-
mitted what the Union considered to be a resignation were allowed to
attend meetings and to vote.
11/2/78
11/6/78
11/2/78
11/2/78
623.28
1,500.00
194.17
580.92
500.00
and one in October. Also in 1977, Schnabel was nomi-
nated for a position on the collective-bargaining negotiat-
ing committee but was not elected. He voted in the Janu-
ary election of officers, he voted in the April election
and runoff election for the vacant position of vice presi-
dent, and he voted in the special election which was held
in August. Schnabel was nominated and ran in a special
election for the position of president or vice president of
the Union in 1977 but was not elected (during a time
when the office of the president was vacant due to the
resignation of the incumbent). 7
Janet Gilmore Shine attended one regular meeting of
the Union in October. She voted in the August special
election.
Denise Vogel attended one regular meeting of the
Union in April 1977, one in November 1977, and one in
July. She was elected in January or February to a posi-
tion as a member of the Respondent Union's 1978 negoti-
ating committee. She voted in the January election of of-
ficers, she voted in the 1978 committee elections, and she
voted in the two elections held for the vacancy in the
vice president's position in April.
Connie Weimer attended one regular meeting of the
Union held in October during the strike. 8
The Union treated written resignations as effective as
of the day after they were postmarked. However, letters
submitted to the Union from employees who stated that
the employee desired to revoke the dues-checkoff au-
thorization or who stated that the employee desired to
discontinue paying amounts equal to dues and which did
not mention withdrawal or resignation from membership
were not treated as resignations by the Union.
On July 31, the parties were in the midst of negotia-
tions when the first collective-bargaining agreement ex-
pired. The Union went on strike from on or about Sep-
tember 21, to on or about October 31, when agreement
was reached on a new collective-bargaining agreement.
This new agreement was effective as of November 1.
B. Analysis and Conclusions (Union Fine Case)
The discussion must begin by acknowledging the
power of a union to discipline its members for crossing
its lawful picket line or returning to work during a
strike. A union rule against that conduct is a legitimate
7 In mid-1978, shortly before the first collective-bargaining agreement
expired, Schnabel and another alleged member of the Union named
Karen O'Roarke were accused by union officers Mary Rose and Dorothy
Davis of distributing materials and making statements ostensibly on behalf
of the Union, but not in fact authorized by the Union. In the course of
meeting with Rose and Davis, Schnabel and O'Roarke admitted they
were members of the Union, but asserted they had a right to speak out
oni the issues.
R Mary Rose, then a union officer, told Weimer that her name was not
on a list of union members and that she would not therefore be admitted
to the meeting unless she paid the initiation fee and one month's dues
equal to S30. Weimer agreed to give a check for $30 to Union Treasurer
Linda Carter, who agreed to hold the check until the strike, then in
progress, had been settled and the employees returned to work
1326
AMERICAN NURSES' ASS()CIATION l
internal regulation of the conduct of its members, and
imposition of a fine on a member is lawful under Section
8(b)(l)(A). N.L.R.B. v. Machinists Local 1327, Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, District Lodge 115 [Dalmo Victor], 608 F2d.
1219 (9th Cir. 1979), citing N.L.R.B. v. Allis-Chalmers
Mfg. Co., 388 U.S. 175, 195 (1967); N.LR.B. v. Granite
State Joint Board, Textile Workers Union of America,
Local 1029, AFL-CIO [International Paper Box Machine
Co.], 409 U.S. 213, 215 (1972).
None can argue with the above. However, any appli-
cation to the instant case must await answer to the issue
posed by the General Counsel: whether any or all of the
13 employees fined were ever members of the Union
and, if so, had they effectively resigned prior to the time
they crossed the picket line. Obviously, if the 13 employ-
ees were not members during the time in question, the
Union violated the Act in levying the fines. I turn there-
fore to the question of union membership.
The Union's bylaws, article III, reads, inter alia, that
"membership . . . shall be open to all persons . . . who
have signed an application for membership and shall
have satisfied the then-current financial obligations re-
quired to obtain and/or maintain membership in good
standing." All agree that none of the 13 employees
signed applications for membership. The General Coun-
sel thus reasons that none of the 13 agreed to be bound
by the Union bylaws and rules, that the necessary con-
tractual agreement between the Union and its members
did not exist and that, therefore, the 13 employees were
not full members of the Union."
I reject these arguments and find that all 13 employees
were at least preliminarily members of the Union. The
question of effective resignations will be discussed in due
course. In reaching this conclusion, I begin with article
III of the bylaws. I find that it describes one method of
obtaining membership. However, I decline to construe
article III as reading that, "membership . . . shall be
open [only] to all persons...."i It clearly was the
intent of the parties to include all persons who paid an
initiation fee and monthly dues. (The fact that the former
was waived on two occasions is immaterial to this dis-
cussion.) In "The Facts," I have detailed the participa-
tion of the 13 employees in the affairs of the Union. This
9 The General Counsel's conclusion does not follow from her conten-
tions. If she is correct, then the 13 are not members at all, rather than not
"full members." The case of N.L.R.B. v Hershey Foods Corporation, 513
F.2d 1083 (9th Cir 1975), discusses in a different context degrees of
union membership In the instant case, however, the 13 employees are
either members or nonmembers at the time in question and Hershey Foods
Corporation, supra, does not support the General Counsel's argument.
'o Even if the missing word "only" were present, it is doubtful that it
could be validly claimed there was no contract in light of the parties'
conduct. In Colonial Sand d Stone Co.. Inc.. et al. v. James Geoghegan,
367 F.Supp. 932, 934-35 (S.D.N.Y. 1973), a collective-bargaining contract
contained this clause:
This agreement must be countersigned by either the President or the
Secretary-Treasurer of the Union and is not valid unless so counter-
signed.
The document in question was never countersigned; the court held there
was a binding contract, holding that the parties' conduct indicated that
they intended the signing to be a ministerial act which was not essential
to the formation of the contract.
is strong evidence that they considered themselves mem-
bers of the Union.
In addition, the Union obviously considered the 13
employees members of the Union. In this respect, the
Union was interpreting its own bylaws which are in issue
here. Any reasonable or permissible construction which
a union gives to its bylaws will govern unless it is clearly
subversive of personal or property rights. 48 Am. Jur.
2d, Labor and Labor Relations Sec. 75. " No such viola-
tion of personal or property rights is shown here.
That the Union properly considered article III of its
bylaws to be permissive rather than mandatory is shown
by a number of factors in addition to those discussed
above. First, the law of contracts is applicable here since
the Union's bylaws are a contract between a union and
its members as well as a contract between the members
of the Union. 48 Am. Jur. 2d Labor and Labor Relations
Sec. 76. Thus, when parties purport to enter into a con-
tract, then act in accord with the terms of that contract
for a period of time, a party cannot be permitted to
claim that because of a failure to observe certain terms
and conditions of the contract, there never was a con-
tract in the first place. This could be contrary to the
manifest intent of the parties expressed over a period of
time.t 3 Moreover, since the 13 employees received cer-
tain benefits and privileges (e.g., the benefit of a collec-
tive-bargaining agreement; the privilege of holding union
office), I find that they are estopped from now claiming
through the General Counsel that they were never mem-
bers of the Union. Estoppel is an equitable remedy for
the unfairness which would result from the application of
strict legal principles. 14 Thus, to have the 13 employees
act consistent with membership status in the Union until
such time as they desired to return to work during the
strike, then deny they were ever members of the Union
as a bar to union discipline would clearly yield an unfair
result. Had the employees asserted their nonmembership
before the strike, possibly there would not have been a
strike. l 5
Still another alternative theory on which I find initial
union membership is to hold the 13 employees waived
iI The case does not turn on this point. Irminger attended no union
meetings, held no offices nor committee positions, and never voted in a
union election. Nevertheless, in the context of this case, I find she was as
much a member of the Union as the others.
12 See also Drywall Tapers and Painters of Greater .'ew YorA. Local
1974, e al. v. Operative Plasterers and Cement Masons' Internarionaol Arso-
ciation of the United States and Canada. et atl. 537 F 2d 669 (2d Cir
1979); cf International Brotherhood of Boilermakers. Iron Shipbuilders.
Blacksmiths. Forgers and Helpers, AFL-CIO v George W Hardeman, 401
U.S. 233, 244-245 (1971).
1A Henry V. Rabouin d/b/a Conway's Express Lv .R.B, 195 F.2d
906. 910 (2d Cir. 1952); Roadway Express. Inc. v. General Teamsters,
Chauffeurs d Helpers Union Local 249, 330 F 2d 859 (3d Cir. 19641;
N.L.R.B. v. International Union of Operating Engineers. Local 825, 315
F 2d 695, 699 (3d Cir. 1963)
" I A Corbin on Contracts. Secs 205-206 (1963)1 see JD. Industrial
Insulation Company. Inc., 234 NLRB 163 (1978). enforcement denied in
relevant part 615 F.2d 1289 (101h Cir. 1980)
I' Indeed. it is likely that some or all of the purported nonmembers
voted in favor of the strike Unfortunately, the record is silent on this
matter
1327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adherence to the requirement of a membership applica-
tion. 'f
I am also persuaded that the 13 employees were mem-
bers of the Union because to hold to the contrary would
mean that no one was a member of the Union and that,
therefore, there was no Union. Prior to November 1, no
person had filled out an application for membership. Fur-
thermore, it would also mean that the collective-bargain-
ing agreement effective August 1, 1977, through July 31,
was a nullity. This result would be absurd, contrary to
the manifest intent of the parties and violative of recog-
nized principles of equity.
In finding that the 13 employees were members of the
Union, I also rely upon two Board Decisions: Oil,
Chemical & Atomic Workers International Union, AFL-
CIO, 148 NLRB 629 (1964), enforcement denied sub nom
United Nuclear Corp. v. N.L.R.B., 340 F.2d 133 (Ist Cir.
1965), remanded 152 NLRB 436, and International Broth-
erhood of Operative Potters, AFL-CIO (Macomb Pottery
Company), 171 NLRB 565 (1968). The General Counsel
argues that these cases do not apply here because the
union members in those cases signed applications for
membership. In making this argument, the General
Counsel misses the point of both cases. That is, in both
cases, it was claimed that certain persons were not mem-
bers due to lack of compliance with certain provisions of
the union constitution or other formalities. In rejecting
these claims, the Board stated in Macomb Pottery Compa-
ny, supra at 566:
.. . the existence of a membership relation was
contemplated by all the parties, i.e., the employees,
the Respondent [Union] and the Company.... In
this connection the facts show that by their conduct
the employees themselves contemplated the exist-
ence of a membership relationship, since they
availed themselves of the right to attend union
meetings and voted to ratify the contract ....
All of the above and more is present in this case. Fur-
thermore, the Board considered it significant that the
persons asserting that they were not members of the
Union acted to the contrary. So too, 6 ' 7 of the 13 em-
ployees here asserting nonmembership in the Union ex-
pressly resigned from the Union which the General
Counsel asserts they were never members of. While the
effect of those resignations remains to be considered, it
clearly appears that they in particular and the others as
well considered themselves to be members of the Union,
and so do 1.
In sum, I find that the 13 employees were members of
the Union because all the available evidence indicates to
me that both the Union and employees intended that a
membership status exist. This evidence includes the pay-
ment of initiation fees and monthly dues, the participa-
tion in union activities, the acceptance of union benefits,
the resignations from the Union, and the complete lack
6I Roadway Express. Inc. v General Teamsterv.e Chauffeurv and Helpers
Union. Local 249, supra, 330 F.2d 859.
I? Respondent Union counts seven; I count only six wrho resigned ex-
pressly from the Union
of evidence to show that a contrary relationship was
contemplated by the parties.'8
In the alternative, the General Counsel contends, that
even if it were found that the 13 employees were full
members and therefore subject to union discipline, part
of the fines levied against 6 of the 13 violated Section
8(b)(l)(A) of the Act, as the fines were for periods of
time after the 6 had severed all ties with the Union. As
part of her theory in this regard, the General Counsel
contends that revocation of the checkoff authorization
was tantamount to resignation from the Union. I reject
this theory as unsupported by the law and facts of this
case. 19 First, it is clear that an employee can be a
member of the Union without ever having executed a
checkoff authorization, e.g., Weimer. Thus it follows, an
employee could validly revoke the checkoff authoriza-
tion, elect to pay the monthly dues directly to the Union,
and continue to be a member. Second, of the six employ-
ees in issue here, three, Pat Clouser, Betty Joe Emery,
and Margaret Irminger, expressly resigned from the
Union, therefore, the General Counsel's theory does not
apply to them, and I will discuss their cases below. Em-
ployee Fanning submitted separate communications pur-
porting to revoke the checkoff authorization on Septem-
ber 20 and to resign on September 22. This is some evi-
dence that he considered resignation from the Union and
revocation of the checkoff separate and independent of
each other. I will discuss his case with Clouser, Emery,
and Irminger below. It is employees Donna Cooper and
Linda Ross who did not resign from the Union, but pur-
ported to revoke their checkoff authorizations.
In the second part of this decision, I find that Cooper's
and Ross' dues-checkoff revocations were not valid be-
cause they were not timely submitted. Accordingly, I
find here that an invalid revocation of a checkoff author-
ization is not tantamount to an effective resignation from
the Union. In the alternative, if I erred in finding the re-
vocations to be invalid, I nevertheless would find that a
revocation of a checkoff authorization is not tantamount
to resignation from the Union. I agree with the Union
that "the two things, maintaining membership in the
Union, and obligating oneself to have his dues deducted
automatically, are two entirely separate contractual rela-
tionships." 2 0 Thus, I have found from all the evidence
's The General Counsel also contends that Sec 3(o) of the Labor
Management Reporting and Disclosure Act defining "Member" of a
labor organization supports her position. I find that it does not. The 13
employees here have "fulfilled the requirements for membership" in the
Union as contemplated by Sec. 3(o). That is to say, it was not intended
that the failure of the employees to execute an application for member-
ship would preclude membership. Rather, it was intended that the pay-
ment of the initiation fees and monthly dues was sufficient to become a
member of the Union prior to November 1.
1' In the brief, the General Counsel also argues that effective resigna-
tion from union membership served to revoke dues-checkoff authoriza-
tion. I will reject this argument as well.
2o Cooper testified at the hearing that she never submitted a resigna-
tion from the Union because she never considered herself to have been a
member I respond by looking to the case of Pitisburgh-Des Moines Steel
Company, 202 NLRB 880, 888 (1973), where the Board affirmed this lan-
guage of the Administrative Law Judge:
The law . judges an agreement between two persons exclusively
from those expressions of their intentions which are communicated
Continued
1328
AMERICAN NURSES' ASSOCIATION
that Cooper was a member of the Union. Since she and
Ross never expressly resigned, they continued to be
members and the revocation of the checkoff authoriza-
tion, even if found to be valid, was not tantamount to a
resignation from the Union.
Returning next to Clauser, Emery, Irminger, and Fan-
ning, I first of all accept the General Counsel's conten-
tion that their resignations were effective as of the close
of business on the day of receipt. Local 1012, United
Electrical Radio & Machine Workers of America (UE)
(General Electric Company), 187 NLRB 375 (1970).2 1 By
this standard, I find no fines were levied for post-resigna-
Name
Carson Brewer
Mary Buck
Linda Chase (Campbell)
Pat Clouser
Karen Coale
Donna Cooper
Barbara Eddins
Betty Jo Emery
Mary Jean Evans
Tom Fairhurst
Charles Fanning
John Friel
Deborah Graham
Neville HoChoy
Margaret Irminger
Brenda Jones
Ruth Lewis
Sharon Lunn
Charlene Moore
Christopher Robinson
Linda Ross
Rita Rupp
Janet Gilmore Shine
Donna Schirmer
David Schnabel
Debbie Scholl
Denise Vogel
Alice Webb
Mary Windisch
Dolores Farr
Marion Munford
Checkoff
9/14/77
7/16/78
11/21/77
11/18/77
11/22/78
7/20/78
9/12/77
11/22/77
11/23/77
11/30/77
11/29/77
11/22/77
12/2/77
7/19/78
11/30/77
11/22/77
12/2/77
12/1/77
7/21/78
7/17/78
12/2/77
7/17/78
11/21/77
12/2/77
7/21/78
11/21/77
7/18/78
11/22/77
11/22/77
11/8/77
tion conduct and therefore I find no violation.
It is claimed that all were each unlawfully fined for I
day. Their resignations were dated October 4, October
19, October 5, and September 22, respectively. The last
day of their fines were October 5, October 20, October
6, and September 23. Clearly, there were no unlawful
fines for them nor for the nine other employees, and I
will recommend that this portion of the case be dis-
missed.
C. The Facts (Deduction of Dues Case)
I begin by listing the 30 alleged discriminatees togeth-
er with certain pertinent information:
Resignation Revocation Opt-Out
9/26/78
10/4/78
9/25/78
10/16/78
& 10/16/78
10/19/78
& 11/13/78
11/2/78
9/22/78
& 11/28/78
9/25/78
9/21/78
& 11/24/78
8/12/78
10/5/78
9/25/78
9/21/78
8/18/78
8/14/78
& 8/21/78
& 8/25/78
11/18/77
8/18/78
9/20/78
& 11/1/78
8/14/78
10/19/78
9/26/78
9/25/78
9/25/78
9/26/78
& 11/21/78
11/22/78
11/17/78
9/26/78
& 11/21/78
10/6/78
10/19/78
& 11/13/78
11/16/78
11/20/78
9/20/78
& 11/21/78
9/26/78
& 11/21/78
11/24/78
10/18/78
& 11/24/78
9/26/78
& 11/21/78
10/2/78
& 10/10/78
& 11/27/78
8/18/78
& 11/27/78
8/21/78
& 8/24/78
9/30/78
10/6/78
8/18/78
& 11/25/78
11/1/78
11/25/778
11/21/78
11/22/78
10/19/78
9/26/78
& 11/21/78
9/26/78
& 11/21/78
11/21/78
11/7/78
11/2/78
11/2/78
11/2/78
11/2/78
11/2/78
11/2/78
11/2/78
11/2/78
11/2/78
11/2/78
11/6/78
11/6/78
11/2/78
11/2/78
11/7/78
11/3/78
11/2/78
11/17/78
11/2/78
11/3/78
11/2/78
11/1/78
11/6/78
11/3/78
11/2/78
11/2/78
11/3/78
11/2/78
11/2/78
between them: Clark on Contracts, Fourth Edition, sec 3, p. 4. Thus
should a party's words and conduct, judged by a reasonable stand-
ard, manifest his intention to agree, his real or unexpressed intention
will be considered immaterial
2 See also TKB International Corporation t/a Hendricks-Miller Typo-
graphic Company, 240 NL RB 1082 (1979)
1329
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The dues checkoff authorization form which the
above-listed employees executed contains certain lan-
guage which is in issue in this case:
. . . This assignment and authorization shall be ir-
revocable for one (1) year from date or until the
termination date of the collective bargaining agree-
ment between the Union and ANA, whichever is
sooner, and shall renew automatically with the same
irrevocability for successive like periods, unless ter-
minated by me in writing within ten (10) days prior
to the expiration of any irrevocable period. Such
written termination shall be effectuated by certified
mail to ANA and the Union.
The initial collective-bargaining agreement was for a
term of I year, from August 1, 1977, to July 31. From
August I through October 31 there was no collective-
bargaining agreement in effect. On November 1, the ef-
fective date of the new collective-bargaining agreement,
the Employer sent a telegram to the 30 employees in
question announcing the new agreement and specifically
mentioning a union-security article. According to the
telegram, the union-security article provides that if an
employee . . . gives a signed, specific, written
notice to ANA and the Union, within 5 working
days of his/her intention to not join the union, or
pay to the Union. . . any dues, initiation fee or
equivalent amounts then that employee would not
be required to join the Union, or pay to the Union
. . . any dues, initiation fees or equivalent amounts
. . [Jt. Exh. 4]
Article 31.3 of the new collective-bargaining agrement is
in essential agreement with the above and reads as fol-
lows:
Notwithstanding any other provision in this article,
no employee employed on the effective date of this
Agreement shall be required to join the Union, or
pay to the Union or a charitable institution any
dues, initiation fees, or equivalent amounts, pro-
vided that such employee gives signed, specific,
written notice to ANA and the Union, within five
(5) working days from the effective date of this
Agreement of his/her intention to not join the
Union or pay to the Union or charitable institution
any dues, initiation fees, or equivalent amounts
.... [Jt. Exh. 3c]
D. Discussion and Analysis (Deduction of Dues Case)
Checkoff is a means by which employees voluntarily
assign a portion of their wages to a union in order to pay
their dues and other obligations to the Union. An em-
ployer violates Section 8(a)(3), (2), and (1) if it continues
to withhold dues from employees' wages after the em-
ployees have validly revoked their checkoff authoriza-
tions. Similarly, a union violates Section 8(b)(1)(A) and
(2) if it causes an employer to make deductions in such
circumstances. Frito-Lay, Inc., 243 NLRB No. 16 (1979).
In this case, the question is presented as to when employ-
ees may validly revoke their checkoff authorizations.
The question is divided into four parts: (I) the effect of
employee revocations at a time other than 10 days prior
to the expiration of the I-year collective-bargaining
agreement; (2) the effect of employee revocations during
the hiatus period between the time the first collective-
bargaining agreement was expired and the new one is ef-
fective; (3) the effect of resignations from the Union on
the checkoff authorizations; (4) and the effect of employ-
ee revocations (opt-out) within a 5-day period after the
new collective-bargaining agreement has begun.
1. The revocations
Of the 30 employees listed above, all but Eddins,
HoChoy, and Shine submitted purported revocations. 22
As these three did not, their status with the Union will
be affected, if at all, by the discussions in the succeeding
sections of this opinion. As to the others, I agree with
the Employer's interpretation of the relevant language of
the checkoff authorization quoted in "Section C" of this
opinion. This interpretation relates to the question of just
what is the escape period under the checkoff authoriza-
tion. 23 The Employer states:
Since the collective-bargaining agreement was only
for a term of one year, from August 1, 1977, to July
31, 1978, and since no dues deduction agreement ex-
isted between Respondent Employer and Respond-
ent Union until after the execution of the collective-
bargaining agreement, expiration of the collective-
bargaining agreement would occur sooner for all in-
dividuals on dues deductions.
The case of American Smelting & Refining Company
(Mission Unit), 200 NLRB 1004 (1972), is claimed by
both Respondents to be directly applicable to the instant
case. The General Counsel argues that the case is distin-
guishable. In American Smelting & Refining Co., the
Board sustained an interpretation of language in a dues-
checkoff authorization which is virtually identical to that
in issue here. The employer and the union in that case
interpreted the language as creating only one escape
period. In sustaining this view, the Board found that the
employer and the union had acted reasonably and in
good faith and in a manner not violative of the employ-
ees' Section 7 rights. This case fully supports Respond-
22 It should be mentioned that employees Cooper, Emery, Evans. Fair-
hurst. HoChoy, Irminger. Rupp, Schirmer, and Webb effectively revoked
their checkoff authorization forms within 10 days prior to July 31. 1979.
the anniversary of the expiration of the initial collective-bargaining agree-
ment. (Jr. Exh. 20, par. I I) This fact has no effect on the merits of their
claims considered in this case
23 The key language of the checkoff authorization form referred to by
the Employer is: "lhis authorization shall be irreslocahle for one (I) year
from date or until the termination date of the collective-bargaining agree-
ment . whichever is sooner .
1330
AMERICAN NURSES' ASSOCIATION
ents' defense in this case.2 4 Accordingly, I find that only
one escape period was contemplated by the parties and
that was 10 days prior to July 31. Furthermore, the anni-
versary date of execution of the dues-checkoff authoriza-
tion is therefore irrelevant and does not constitute a
second escape period. Of those employees who purport-
ed to revoke, none fell within the appropriate period.
Accordingly, I find no violation of the Act based on Re-
spondents' failure to honor the revocations. Said revoca-
tions were invalid as they were not timely submitted.
2. The hiatus period between the first and second
collective-bargaining agreement
In this case, the first collective-bargaining agreement
expired on July 31, and the second was effective on No-
vember 1. Sixteen employees purported to revoke their
dues-checkoff authorizations during this period. Re-
spondent Union contends that the case of Frito-Lay, Inc.,
243 NLRB No. 16, will determine this issue. In Frito-
Lay, supra, several employees purported to revoke their
checkoff authorizations during the interim period be-
tween expiration of one contract and before the effective
date of the next contract. The Board held that it was
proper for the employer and union to refuse the revoca-
tions as untimely. The employees in Frito-Lay had volun-
tarily executed checkoff authorizations which expressly
contemplated the possibility of periods when no contract
would be in effect. The Board added:
And the authorization provided that [it] would be
irrevocable except for two escape periods; one 10-
day period ending 10 days prior to the expiration of
one year from the date the authorization was ex-
ecuted and one 10-day period ending 10 days prior
to the expiration of any collective-bargaining in
effect or which became effective after the execution
of the authorization.
The employees in Frito-Lay did not revoke their authori-
zations during either of the two escape periods, and, ac-
cordingly, the Board held that the Respondents were jus-
tified in refusing to honor the revocations. In the instant
case, I have found only one escape period since the con-
tract was for I year. Since all dues-checkoff authoriza-
tions were executed subsequent to August 1, 1977, the ef-
fective date of the contract, the following language from
the authorizations is convincing:
The assignment and authorization . . . shall renew
automatically with the same irrevocability for
successive like periods ....
No mention is made of an interim period between agree-
ments. Accordingly, I find that Frito-Lay applies here
and that it was not the intent of the parties to allow for
an escape period during the interim between agree-
ments. 2 5
24 Compare Atlanta Printing Specialties and Paper Products Union LDual
527. AFL-CIO (The Mead Corporation)., 215 NLRH 237 (1974), enfd 523
F2d 783 (Sih Cir 1975)
25 Compare Merchants Fast Motor Lines, 171 NLRB 1444 (19h8).
where authorizations were expressly resocahle at any time
3. The resignations from the Union
General Counsel argues in the alternative that resigna-
tions from union membership served to revoke checkoff
authorizations insofar as the checkoff authorizations spe-
cifically refer to the deductions and payment of monies
in an amount equal to "all my Union membership dues
and membership assessments." My attention is also di-
rected to San Diego County District Council of Carpenters,
United Brotherhood of Carpenters and Joiners of America
AFL-CIO (Campbell Industries), 243 NLRB No. 17
(1979). In that case the Board held that while resignation
from a union ordinarily does not revoke dues-checkoff
authorizations, it did in that case because the authoriza-
tions specifically provided that they were "in considera-
tion of the benefits received as a result of membership in
the Union." This language is not equivalent to the lan-
guage taken from the authorization in the present case.
Therefore I find that the general rule applies and that the
resignations from the Union did not revoke the dues-
checkoff authorization. 2 6
4. The "opt-out" form
In addition to the revocations discussed above, 30 em-
ployees submitted "opt-out" forms to both the Employer
and the Union. The question presented here is whether
the November I telegram notice, quoted in section C of
this opinion, and describing the newly negotiated union-
security article, was applicable to those 30 employees
whom I have found to be prior members of the Union.
The telegram recited that employees employed as of No-
vember I had 5 days to give written notice both to the
Employer and the Union that they did not wish to join
the Union or to pay union dues. Plainly, this notice did
not apply to those employees who were already mem-
bers of the Union and who had previously executed
checkoff authorizations.
Prior to November 1, no employee was required to
join the Union and pay initiation fees and monthly dues.
After November 1, employees were required to pay an
amount equivalent to fees and monthly dues either to the
Union as a member, to the Union as a nonmember, or to
a nonreligious tax-exempt charitable institution. Thus, the
only employees affected by the union-security article
were those who had never been a member or those who
had effectively resigned from membership.27
A checkoff authorization is a contract between em-
ployer and employee; an employer and union are prohib-
2' Compare Unired Steelworkers of America. 4AFL-CIO Local No. 7450
(.4sarco Incorporated), 246 NLRB No 139 (1979). where the language of
the authorization read that there should be deducted from an employee's
pay each month "monthly dues, assessments .as my membership dues
in said Union" Compare this to the pertinent language from the aulhori-
zation In the present case: ANA may deduct from an employee's pay "an
amount equal to all my Union membership dues and membership assess-
ments. as certified by the Treasurer of the Union" Thus. the aulhorlza-
tion does not state that the payment of dues is In consideration for union
membership Accordingli. U nited Sticel*rA, eri does not apply here
2 Fen those who had effectie;cly resigned %ere ot! substantisely al-
fected if they had not salidl res,oked their heckoff authorizations X,
pointed out elses here in this opinion, the general rule is that a iahd re,
ignation from a union doe, not alutomaticallx rcxoke a checkoff authori-
zation
1331
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ited by Section 302(c)(4) of the Act from changing the
terms of that contract without the assent of the individu-
al employee affected thereby, as manifested by the em-
ployee signing a new authorization card. Cameron Iron
Works, Inc., 235 NLRB 287 (1978). In Cameron, the
Board decided that the Employer and the Union could
not agree to modify the dues-checkoff authorization to
impose more stringent requirements on the preexisting
contractual right to revoke. Here it is the employees,
through the General Counsel, who seek to modify the
dues-checkoff authorization by allowing a more liberal
view of the preexisting right to revoke. However, I find
the rationale of Cameron to be fully applicable. That is,
employees cannot make unilateral changes in their preex-
isting checkoff authorizations contrary to the intent of
the Employer and Union expressed in their own contrac-
tual agreement of November 1. Therefore, to interpret
the November I telegram to employees as giving those
with preexisting checkoff authorizations a new escape
period would defeat the manifest purpose of the new
union-security article. Moreover, this interpretation
would be contrary to the manifest intent of the Employ-
er. Accordingly, I find that none of the "opt-out" forms
were effective to revoke the checkoff authorization as
they were untimely. I will recommend that this case be
dismissed in its entirety.
CONCL USIONS OF LAW
1. Respondent Employer is an employer within the
meaning of Section 2(2) of the Act, engaged in com-
merce and in an industry affecting commerce within the
meaning of Section 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
practices alleged in the complaint.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER28
It is hereby ordered that the complaint be, and it
hereby is, dismissed in its entirety.
28 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1 332