Postal Service

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 841 (N.L.R.B. 1993)

841
312 NLRB No. 131
POSTAL SERVICE
1 Sec. 1205(a) of the PRA provides:
When a labor organization holds exclusive recognition, or
when an organization of personnel not subject to collective-
bargaining agreements has consultation rights under Section
1004 of this title, the Postal Service shall deduct the regular
and periodic dues of the organization in the unit of recognition
if the Post Office Department or the Postal Service has re-
ceived from each employee, on whose account such deduc-
Continued
United States Postal Service and National Associa-
tion of Letter Carriers, AFL–CIO and Preston
Hall. Cases 16–CA–15857(P) and 16–CB–
4218(P)
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 20, 1993, the General Counsel of the
National Labor Relations Board issued a consolidated
complaint and notice of hearing in the above-entitled
proceeding. The consolidated complaint alleges that the
Respondent Employer violated Section 8(a)(1), (2), and
(3) of the National Labor Relations Act by refusing to
honor Charging Party employee Preston Hall’s request
to cease deducting union dues from his paycheck fol-
lowing his resignation from the Respondent Union and
his transfer out of the bargaining unit represented by
the Respondent Union. The complaint further alleges
that the Respondent Union violated Section 8(b)(1)(A)
of the Act by refusing to process Hall’s resignation
and his dues deduction revocation request.
On February 1, 1993, the Respondent Employer
filed an answer, admitting certain allegations in the
complaint, but denying that it has engaged in any un-
fair labor practices. On February 5, the Respondent
Union filed an answer, admitting certain allegations in
the complaint, but denying that Hall notified the Union
about his resignation and his dues deduction revocation
request. The Union also denied that it has engaged in
any unfair labor practices.
On February 22, 1993, the Respondent Employer
filed a Motion for Summary Judgment, with a brief
and supporting documents attached. The Respondent
Employer contends that the Board should dismiss the
complaint against it because its admitted refusal to
honor Hall’s dues-checkoff revocation request was
lawful under section 1205 of the Postal Reorganization
Act and case law interpreting that statutory language.
On March 1, 1993, the General Counsel filed a re-
sponse to the Respondent Employer’s motion and a
motion to sever the cases. The General Counsel agrees
that summary judgment may be appropriate as to com-
plaint allegations in Case 16–CA–15857(P) against the
Respondent Employer, but he contends that the Board
should find the unfair labor practices alleged in the
complaint. The General Counsel submits that summary
judgment in Case 16–CB–4218(P) is inappropriate be-
cause the Respondent Union’s answer raises a material
factual issue whether Hall notified it about resignation
and dues deduction revocation. The General Counsel
therefore moves to sever Case 16–CB–4218(P) and to
remand it for a hearing.
On March 2, 1993, the Respondent Union filed a re-
sponse to the motions of the Respondent Employer and
the General Counsel and a Cross-Motion for Partial
Summary Judgment. The Respondent Union joins the
Respondent Employer in urging the Board to grant
summary judgment in their favor and to dismiss all un-
fair labor practice allegations relating to the failure to
honor Hall’s dues deduction revocation request. The
Respondent Union agrees with the General Counsel’s
motion to sever Case 16–CB–4218(P) to the extent
that complaint allegations of a failure to process Hall’s
resignation request involve disputed factual matters
warranting a hearing.
On March 4, 1993, the Board issued an order trans-
ferring this proceeding to the Board and a Notice to
Show Cause why the Respondents’ motions should not
be granted. Thereafter, the General Counsel filed a
brief in response to the motions of the Respondents,
and each Respondent filed a reply brief.
Ruling on Motions
I. JURISDICTION
The Respondent Employer provides postal services
for the United States of America and operates various
facilities throughout the United States, including the
facility in Waxahachie, Texas. The Board has jurisdic-
tion over the Respondent Employer by virtue of the
provisions of chapter 12, section 1209 of the Postal
Reorganization Act, 29 U.S.C. § 101 (PRA). The Na-
tional Association of Letter Carriers, AFL–CIO is a
labor organization within the meaning of Section 2(5)
of the Act.
II. ADMITTED OR UNDISPUTED FACTS
The Respondent Union represents a unit of the Re-
spondent Employer’s employees. The Respondents
have been parties to successive collective-bargaining
agreements for this unit. The current agreement is ef-
fective from June 12, 1991, to November 20, 1994.
That agreement contains a checkoff provision which
allows the Respondent Employer, on written assign-
ment and authorization from an employee, to deduct
union dues from the employee’s wages and to remit
these dues to the Respondent Union.
On about April 3, 1981, Hall submitted to the Re-
spondent Employer a dues-checkoff authorization form.
Consistent with section 1205 of the PRA,1 the author-
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions are made, a written assignment which shall be irrev-
ocable for a period of not more than one year.
2 All subsequent dates are in 1992, unless otherwise indicated.
3 As previously indicated, a factual dispute exists as to whether
Hall communicated to the Union a resignation and dues deduction
revocation request. In light of the disposition, we need not resolve
the factual dispute concerning the dues deduction revocation request.
4 See generally Postal Service, 302 NLRB 332, 334–335.
5 For an example of the difficulties inherent in attempting to parse
sec. 1205 phrase-by-phrase, see fn. 12 of Postal Service, supra.
6 The authorization is the same as that set forth in Postal Service
at fn. 2.
ization specified that it was automatically renewable
and irrevocable for successive 1-year periods unless
written notice of revocation was given to the Postal
Service and to the Union during a window period of
20 to 10 days prior to the anniversary of the authoriza-
tion. Prior to the events related below, Hall did not
seek to forestall the renewal of the authorization.
In September 1992,2 Hall transferred from a job in
the bargaining unit represented by the Respondent
Union to another job in a separate bargaining unit rep-
resented by a different union. On about October 23,
Hall notified the Respondent Employer that he was re-
signing from the Respondent Union. He submitted to
the Respondent Employer a signed form requesting
revocation of his dues-checkoff authorization.3
Hall received a written response from the Respond-
ent Employer on about October 28. The letter informed
Hall that the Respondent Employer was refusing to
honor his revocation request because he had not acted
within the established revocation window period,
which is 20 to 10 days prior to the April 3 anniversary
of Hall’s execution of the dues deduction authoriza-
tion. The Respondents have thereafter continued to en-
force Hall’s dues deduction authorization.
III. ANALYSIS
In Postal Service, 302 NLRB 332, 333 (1991), the
Board held that ‘‘section 1205 [of the PRA] requires
the Postal Service to honor a checkoff authorization’s
irrevocability period if it is for not more than a year,
notwithstanding an authorization signer’s resignation
from union membership during that period.’’ Accord-
ingly, it was lawful for the Postal Service to refuse to
honor an employee’s postresignation revocation request
which was not made within the prescribed annual win-
dow period for revocation.
The Respondents contend that the aforementioned
case controls the dues-checkoff revocation issue pre-
sented here. The General Counsel, however, contends
that the cited precedent is distinguishable from the
present case, where the employee seeking untimely
revocation of a dues-checkoff authorization has trans-
ferred out of the unit and is no longer represented by
the Respondent Union. Based on (1) the language of
section 1205 of the PRA, (2) a comparison of that lan-
guage with the antecedent Executive Order 11491 (34
Fed.Reg. 17605 (1969)),4 and (3) Postal Service,
supra, we agree with the Respondents that no excep-
tion from the 1-year irrevocability period exists for an
employee who transfers to a bargaining unit rep-
resented by a different union.
As explained in Postal Service, section 1205 man-
dates a 1-year period of irrevocability for an employ-
ee’s checkoff authorization. The issue in this case is
whether section 1205 provides an exception to this 1-
year period if the employee leaves the bargaining unit
during that year. We do not read section 1205 as re-
quiring that result. We recognize that section 1205 be-
gins with the words ‘‘When a labor organization holds
exclusive recognition . . . .’’ However, we do not
read this language as requiring that an employee’s
checkoff authorization ceases at the moment when the
employee leaves the unit in which exclusive recogni-
tion exists. Rather, we read this language in the con-
text of section 1205 as a whole.5 Section 1205 pro-
vides that a dues deduction is permissible only if the
employee has signed a checkoff authorization. Con-
strued in light of this provision, we read the opening
words of section 1205 to mean that the only employees
who can sign a checkoff authorization are those in a
recognized unit. If that requirement is satisfied, it
makes no difference that the employee subsequently
transfers out of the bargaining unit.
The checkoff authorization itself, signed by the em-
ployee, is consistent with this result.6 The authoriza-
tion contains no language which would condition the
continuing efficacy of the authorization on the employ-
ee’s remaining in the unit.
Further, there is nothing in the legislative history to
support the view that Congress intended to permit an
exception to irrevocability for employees who transfer
out of the unit. Surely, if Congress wanted to create
an exception for transferees, it knew how to do so. The
1978 statute governing Federal employment labor rela-
tions evolved from the same Executive Order (11491)
that governed Postal Service labor relations prior to the
PRA. That Order and the 1978 statute, in marked con-
trast to the PRA, expressly provide for the termination
of a checkoff arrangement when ‘‘the agreement be-
tween the agency and the exclusive representative in-
volved ceases to be applicable to the employee.’’ 5
U.S.C. § 7115(b)(1). We find it reasonable to infer,
from the absence of a comparable express exception to
the PRA, that Congress intended no exception for em-
ployees who are no longer covered by the agreement
because they have transferred out of the unit.
Finally, we note that our conclusion does not mean
that the transferring employee will be required to pay
dues to two unions, viz., the union named in the
checkoff and the union that represents the employee’s
new unit. There is no union security in the Postal
843POSTAL SERVICE
7 Concededly, the authorization can end during that period if the
employee becomes a supervisor. The parties thereby avoid the prob-
lem of having an agent of management giving financial support to
the union. This situation is not present here.
Service, and thus the employee is not required to pay
anything to the employee’s ‘‘new’’ union. And, of
course, the employee can revoke the extant authoriza-
tion at the appropriate time.
Our colleague relies on the ‘‘original purpose’’ be-
hind the irrevocability provision of section 1205(a). In
Postal Service, supra at 335, the Board said that this
purpose was to guarantee postal unions at least a cer-
tain level of predictability of dues income. The result
in this case is wholly consistent with that purpose.
When an employee executes a checkoff authorization,
the union can rely on income for a defined period, ir-
respective of whether the employee transfers out of the
unit.7
Our colleague also asserts that section 1205(a)’s re-
striction on revocability was a legislative tradeoff for
the absence of union security in the Postal Service. See
Postal Service, supra at 335. He therefore argues that
a union should not be able to enforce checkoff against
an employee who has transferred out of the unit, for
the union would thereby receive more than union secu-
rity would allow. However, restrictions on checkoff
revocability are not a complete quid pro quo for full
union security. Even under the restrictions, employees
can timely choose to revoke their checkoff authoriza-
tions and thereby cease their financial support of the
union. Under union security, the employees are com-
pelled to continue that support, irrespective of their
wishes. Accordingly, in order to make the ‘‘trade-off’’
a bit more even, section 1205(a) precludes revocability
for a defined period of time, irrespective of whether
the employee remains in the unit. This result allows
for income stability for the union. And it does so with-
out the compulsion of union security, for the employee
voluntarily signs the checkoff authorization.
Based on the analysis set forth above and in Postal
Service, 302 NLRB 332 (1991), we find that the Re-
spondents did not violate the Act by refusing to give
effect to the Charging Party’s untimely attempted rev-
ocation of checkoff authorization. On this basis, we
shall grant the Respondent Employer’s Motion for
Summary Judgment and the Respondent Union’s
Cross-Motion for Partial Summary Judgment by dis-
missing all unfair labor practice allegations relating to
the dues-checkoff revocation issue.
The complaint additionally alleges that the Respond-
ent Union failed and refused to honor the Charging
Party’s request to resign membership. The Respondent
Union, however, denies that it ever received notifica-
tion of resignation from the Charging Party. In view
of the outstanding factual dispute on this issue, we
grant the General Counsel’s motion to sever the
8(b)(1)(A) allegation dealing with the Charging Party’s
resignation. We shall remand this allegation to the Re-
gion for further appropriate proceedings.
ORDER
The complaint in Case 16–CA–15857(P) is dis-
missed. The complaint allegations of 8(b)(1)(A) viola-
tions by the Respondent Union in Case 16–CB–
4218(P) are dismissed insofar as they relate to the en-
forcement of the Charging Party’s checkoff authoriza-
tion. Complaint allegations of 8(b)(1)(A) violations in
Case 16–CB–4218(P) for purported interference with
the Charging Party’s right to resign membership are re-
manded to the Region for further proceedings.
CHAIRMAN STEPHENS, dissenting in part.
I would not grant the Respondents’ summary judg-
ment motions concerning their refusal to honor Charg-
ing Party Hall’s dues-checkoff revocation outside the
annual window period for revocation. Instead, I would
find that the Respondents’ refusal to honor the revoca-
tion violated the Act as alleged in the consolidated
complaint. I therefore dissent from the dismissal of all
unfair labor practice allegations relating to the dues-
checkoff issue. In all other respects, I join the major-
ity.
I believe that the General Counsel has the better ar-
gument in this case. Notwithstanding the unequivocal
statements in Postal Service, 302 NLRB 332 (1991),
as to the irrevocability of checkoff authorizations, I
read section 1205(a) as assuming that the union main-
tains its exclusive representative status with respect to
both the unit in general and the employees in particu-
lar. Thus, if the union ceases to ‘‘hold[] exclusive rec-
ognition’’ status, the checkoff authorizations for the
whole unit are revoked by operation of law. Similarly,
if an employee ceases to be included in the unit—for
example, as a result of a transfer—the checkoff is like-
wise revocable as to that individual.
Postal Service, supra, is distinguishable because the
employee, notwithstanding his resignation, was still in-
cluded in the bargaining unit, and as noted by the Gen-
eral Counsel, still entitled to the benefits of union rep-
resentation (including the duty of fair representation)
from the assignee union. Once the employee was out
of the unit, he was no longer a ‘‘free rider.’’ As the
General Counsel also notes, the parties recognize the
significance of leaving the unit, in the case of an em-
ployee becoming a supervisor: His checkoff is subject
to revocation. Likewise, I would be surprised if an em-
ployee who terminates his employment still must abide
by the checkoff for the remainder of the year. In short,
I do not see how the original purpose behind the ir-
revocability provision—providing income stability as a
tradeoff for eliminating the union-security provisions
allowed under the old Executive Order—is apropos to
one who is no longer in the unit.
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Subsec. (b) reads:
Any agreement in effect immediately prior to the date of en-
actment of the Postal Reorganization Act between the Post Of-
fice Department and any organization of postal employees
which provides for deduction by the Department of the regular
and periodic dues of the organization from the pay of its
members, shall continue in full force and effect and the obli-
gation for such deductions shall be assumed by the Postal
Service. No such deduction shall be made from the pay of any
employee except on his written assignment, which shall be ir-
revocable for a period of not more than one year.
Although the Respondent Union claims that sub-
section (b) of section 1205 is controlling,1 that section
strikes me as merely having a transitional purpose: To
preserve the force of agreements in effect at the time
of enactment of the Postal Reorganization Act. I would
not read it as giving unions more rights than otherwise
afforded under subsection (a). Thus, for example, a
union which originally had an agreement covered by
subsection (b) could not now invoke that subsection to
circumvent the requirement in subsection (a) that it
hold exclusive recognition status.