[ v19 p586 ]
19:0586(77)CO
The decision of the Authority follows:
19 FLRA No. 77
DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
PORTSMOUTH, NEW HAMPSHIRE
Respondent
and
LLOYD C. COCHRANE
Charging Party
Case No. 1-CA-20262
and
PORTSMOUTH FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
Respondent
and
LLOYD C. COCHRANE
Charging Party
Case No. 1-CO-20009
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled consolidated proceeding, finding that the Respondents,
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire (the Activity) and Portsmouth Federal Employees Metal Trades
Council, AFL-CIO (the Union) had engaged in the unfair labor practices
alleged in the complaint, and recommending that they be ordered to cease
and desist therefrom and take certain affirmative action. Thereafter,
the Activity, the Union, and the General Counsel filed exceptions to the
Judge's Decision accompanied by briefs. /1/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision, and the entire record; the Authority hereby adopts
the Judge's findings and conclusions as modified herein.
The facts, as found by the Judge, are not in dispute. At all times
material, the Activity and the Union were parties to collective
bargaining agreements which required that any unit employee who had
authorized the Activity to withhold Union dues from his or her paycheck
could revoke that authorization only on the anniversary date of the
authorization or during the 10-day period immediately preceding the
anniversary date, and that such revocation could only be accomplished on
a form to be obtained, executed and submitted at the Union office during
that 10-day period, on the employee's non-duty time. Employee Cochrane,
the Charging Party, authorized the Activity to withhold dues from his
pay, and attempted to withdraw that authorization over a year later, at
a time when such withdrawal was not permitted by the agreements.
The Judge found that those agreements between the Activity and the
Union, and their application, infringed upon what he characterized as
the "unfettered right" of the Charging Party to revoke his dues
withholding authorization at any time after the expiration of one year,
in violation of section 7115(a) of the Statute. /2/ He therefore found
that by imposing and adhering to those restrictions, the Activity
interfered with the Charging Party's rights accorded by section 7115(a)
and thereby violated section 7116(a)(1) of the Statute, and that such
action encouraged membership in the Union and assisted the Union in
violation of section 7116(a)(2), (3) and (8) of the Statute. /3/ With
respect to the Union, the Judge found that, by insisting on enforcement
of the restrictions on revocation which were a product of its agreements
with the Activity, the Union violated section 7116(b)(1), (2) and (8) of
the Statute. /4/
The Authority finds, contrary to the Judge, that the Activity and the
Union did not violate the Statute when they agreed to a reasonable time
period for dues withholding revocation and enforced such agreement.
Thus, the Authority has previously held that the language of section
7115(a) that "any such assignment may not be revoked for a period of one
year" means that authorized dues allotments may be revoked only at
intervals of one year. U.S. Army, U.S. Materiel Development and
Readiness Command, Warren, Michigan, 7 FLRA 194 (1981). /5/ In
addition, the Authority has stated that parties may define through
negotiations the yearly intervals required by section 7115(a) of the
Statute. See Veterans Administration Lakeside Medical Center, Chicago,
Illinois, 12 FLRA 244 (1983). Here, as found by the Judge, the Charging
Party failed to comply with the time intervals established for dues
revocation, and based upon the facts as found by the Judge, those
limitations were well publicized and reasonable. Such limitations did
not, in the Authority's view, constitute what the Judge characterized as
"unreasonable impediments" to the Charging Party's right to revoke his
authorization. Rather, the Authority concludes that neither the
Activity nor the Union committed an unfair labor practice by complying
with negotiated procedures which are themselves reasonable.
However, the parties' negotiated procedures also required that
revocation of dues withholding authorizations were to be executed on
forms which could only be obtained from the Union at the Union hall, and
which had to be executed and submitted directly to the Union there. The
Authority concludes that these requirements are inherently coercive of
the employees' right to refrain from joining or assisting a labor
organization /6/ as set forth in section 7102 of the Statute. /7/
Accordingly, the Authority finds that the Activity violated section
7116(a)(1), (2), (3) and (8) of the Statute, and the Union violated
section 7116(b)(1), (2) and (8) of the Statute, as alleged in the
complaint, by entering into and enforcing agreements requiring the
Charging Party to obtain, execute and submit dues withholding revocation
forms at the Union office. /8/
ORDER /9/
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute:
A. Respondent Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, shall:
1. Cease and desist from:
(a) Encouraging membership in the Portsmouth Federal Employees Metal
Trades Council, AFL-CIO, or any other labor organization, by maintaining
and enforcing a provision in a collective bargaining agreement which
requires that Lloyd C. Cochrane, or any other employee, use a form
obtained from, executed and submitted at the offices of the Portsmouth
Federal Employees Metal Trades Council, AFL-CIO, in order to revoke dues
withholding authorizations.
(b) In any like or related manner interfering with, restraining or
coercing employees in the exercise of any right under the Federal
Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at its facilities copies of the attached Notice marked
Appendix A on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Commander of the Portsmouth Naval Shipyard, Portsmouth, New Hampshire,
or a designee, and shall be posted and maintained for 60 consecutive
days thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that such Notices are not
altered, defaced, or covered by any other material.
(b) Notify the Federal Labor Relations Authority, in writing, within
30 days from the date of this Order, as to what steps have been taken to
comply herewith.
B. Respondent Portsmouth Federal Employees Metal Trades Council,
AFL-CIO, shall:
1. Cease and desist from:
(a) Maintaining or enforcing any provision of a collective bargaining
agreement which requires that Lloyd C. Cochrane, or any other employee,
use a form obtained from, executed and submitted at the offices of the
Portsmouth Federal Employees Metal Trades Council, AFL-CIO, in order to
revoke dues withholding authorizations.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights under the Federal
Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at its business offices and its normal meeting places,
including all places where notices to members and employees of the
Portsmouth Naval Shipyard are customarily posted in Portsmouth, New
Hampshire, copies of the attached Notice marked Appendix B on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the President of the Federal
Employees Metal Trades Council, AFL-CIO, or a designee, and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where notices to
members and employees are customarily posted. Reasonable steps shall be
taken to ensure that such Notices are not altered, defaced, or covered
by any other material.
(b) Notify the Federal Labor Relations Authority, in writing, within
30 days from the date of this Order, as to what steps have been taken to
comply herewith.
Issued, Washington, D.C., August 12, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX A
NOTICE TO ALL EMPLOYEES A DECISION AND ORDER OF THE FEDERAL
LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER
71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT maintain and enforce a provision in a collective bargaining
agreement which requires that Lloyd C. Cochrane, or any other employee,
use a form obtained from, executed and submitted at the offices of the
Portsmouth Federal Employees Metal Trades Council, AFL-CIO, in order to
revoke dues withholding authorizations. WE WILL NOT in any like or
related manner interfere with, restrain, or coerce our employees in the
exercise of any right under the Federal Service Labor-Management
Relations Statute.
(Activity)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Region I, Federal Labor Relations Authority, whose address is: 441
Stuart Street, Ninth Floor, Boston, Massachusetts, and whose telephone
number is: (617) 223-0920.
APPENDIX B
NOTICE TO ALL MEMBERS AND EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT maintain or enforce any provision of a collective bargaining
agreement which requires that Lloyd C. Cochrane, or any other employee,
use a form obtained from, executed and submitted at the offices of the
Portsmouth Federal Employees Metal Trades Council, AFL-CIO, in order to
revoke dues withholding authorizations. WE WILL NOT in any like or
related manner interfere with, restrain, or coerce employees in the
exercise of their rights under the Federal Service Labor-Management
Relations Statute.
(Labor Organization)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director, Region I,
Federal Labor Relations Authority, whose address is: 441 Stuart Street,
Ninth Floor, Boston, Massachusetts, and whose telephone number is:
(617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos.: 1-CA-20262, 1-CO-20009
Robert Matisoff, Esquire
For Respondent Union
Mr. Herbert L. Zipperian
For Respondent Agency
Daniel F. Sutton, Esquire
For the General Counsel
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
7101, et seq., and the Rules and Regulations issued thereunder, Fed.
Reg., Vol. 45, No. 12, January 17, 1980, and Vol. 46, No. 154, August
11, 1981, 5 C.F.R.Chapter XIV, Part 2411, et seq.
Pursuant to amended charges first filed on June 14, 1982, by Lloyd C.
Cochrane, an individual, a Consolidated Complaint and Notice of Hearing
was issued on October 26, 1982, by the Regional Director for Region I,
Federal Labor Relations Authority, Boston, Massachusetts. The
Consolidated Complaint alleges in substance that the Department of the
Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire (hereinafter
called the Naval Shipyard or Agency), and the Portsmouth Federal
Employees Trades Council, AFL-CIO (hereinafter called FEMTC or Union),
violated Sections 7116(a)(1), (2), (3) and (8), and Sections 7116(b)(1),
(2) and (8), respectively, of the Federal Service Labor-Management
Relations Statute (hereinafter called the Statute), by maintaining and
enforcing an unlawfully restrictive dues revocation procedure and by
refusing to permit Mr. Lloyd C. Cochrane, a unit member, to revoke his
dues assignment pursuant to Section 7115(a) of the Statute.
A hearing was held in the captioned matter on January 17, 1983, in
Boston, Massachusetts. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The General Counsel, and
respective counsel for the FEMTC and the Naval Shipyard submitted
post-hearing briefs on February 28, 1983, which have been duly
considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The Union is the certified exclusive representative of a number of
Wage Grade and General Schedule employees working at the Portsmouth
Naval Shipyard. In 1977 the parties entered into a collective
bargaining agreement which provided in Article 36, Section 11, a
procedure for the revocation of dues allotments. /10/ An identical
provision is contained in Article 35, Section 11, of the current
contract between the parties which was executed on September 21, 1981.
On June 9, 1980, the Union and the Portsmouth Naval Shipyard executed
a Memorandum of Understanding which provides in pertinent part as
follows:
An allotment for the deduction of an employee's union dues may
also be terminated by the employees through a submission of a Dues
Revocation Form (SF-1188) in accordance with the procedure set
forth in Article 36, Section 11, on his anniversary date (the date
the employee originally requested dues withholding) or within a
ten calendar day period immediately before his annual anniversary
date.
The record reveals that on an unspecified date the Portsmouth
Shipyard issued Information Bulletin No. 10-81 which contained
information concerning termination of dues withholding for four of the
units on the base which were represented by four different unions.
Paragraph (b) of the Information Bulletin which pertained to the
employees in the unit represented by the FEMTC provided as follows:
SF 1188's, Revocation of Voluntary Authorization for Allotment
of Compensation for Payment of Employee Organization Dues, shall
be obtained from the Council office during nonwork hours on your
anniversary date (the date you originally requested dues
withholding) or within a ten day calendar day period immediately
before your annual anniversary date. Such termination of
allotment shall become effective the first full pay period of the
month following receipt of the SF 1188 by the Comptroller
Department (630.12) provided dues allotment has been in effect for
a period of one full year at the time it is received by the
Comptroller Department (630.12) and is authorized by appropriate
officials of the Council.
Mr. Lloyd C. Cochrane, the charging party herein, commenced
employment at the Portsmouth Naval Shipyard, as an Equipment Cleaner, on
or about February 17, 1981. Shortly after reporting to work he and a
number of other new employees attended an orientation session conducted
by a representative of the Union. During the orientation session Mr.
Cochrane and the other new employees were informed that they could join
the Union and have their respective dues withheld from their respective
bi-weekly pay checks and remitted to the Union if they executed a
"Request and Authorization for Voluntary Allotment of Compensation for
Payment of Employee Organization Dues". Mr. Cochrane subsequently
executed the appropriate dues withholding form on February 17 or 18,
1981. According to Mr. Cochrane's uncontested testimony, no mention of
the procedure for revoking his dues assignment was made at either the
orientation session or at the time he executed the dues withholding
form. /11/
The second paragraph of the "Request and Authorization for Voluntary
Allotment of Compensation for Payment of Employee Organization Dues"
reads as follows:
I understand that this authorization will become effective the
first full pay period of the calendar month following its receipt
in the payroll office of my employing agency. I further
understand that revocation forms Standard Form No. 1188,
Revocation of Voluntary Authorization for Allotment of
Compensation for Payment of Employee Organization Dues, may only
be obtained and filled out in the offices of the employee
organization on my anniversary date (the date I originally
requested dues withholding) or within a ten calendar day period
immediately before my anniversary date. Such revocation will not
be effective, however, until the first full pay period of the
calendar month following receipt by the payroll office.
In October of 1981, Mr. Cochrane switched jobs and joined the
Painter's Union. Shortly thereafter he called the FEMTC Union office
and spoke to Mr. John P. O'Brien, President of the FEMTC, and, after
identifying himself, informed Mr. O'Brien that he would like to get out
of the FEMTC. When Mr. O'Brien asked why he wanted to get out of the
FEMTC, Mr. Cochrane informed him that he was now a member of the
Painter's Union and since he was a painter he saw no reason for
belonging to the FEMTC, and paying dues to two organizations. Mr.
O'Brien asked about Mr. Cochrane's anniversary date, and upon being
informed that it was February 17, 1981, told Mr. Cochrane to come back
on the anniversary date since he would have had to be in the Union for a
full year before he could revoke his dues. According to Mr. Cochrane,
Mr. O'Brien also mentioned something about "ten days", but he, Mr.
Cochrane did not remember whether the "ten days" was prior to, or after,
his anniversary date.
Mr. Cochrane made no further attempts to revoke his membership in the
FEMTC until February 24, 1982, when he again called Mr. O'Brien and
informed him that he, Mr. Cochrane, wanted to get out of the FEMTC. Mr.
O'Brien informed Mr. Cochrane that he had missed the period for revoking
his dues since he was seven days past his anniversary date. When Mr.
Cochrane continued to press the matter, Mr. O'Brien referred him to the
Industrial Relations Office at the Portsmouth Naval Shipyard.
Thereafter, Mr. Cochrane telephoned the Industrial Relations Office,
told a woman about his problem and the fact that the FEMTC would not
give him a "revocation". The Industrial Relations Office told Mr.
Cochrane to go to the FEMTC office on his off time and obtain the
necessary revocation form. Subsequently, during his lunch-hour on
February 24, 1982, Mr. Cochrane went to the FEMTC office and asked Mr.
O'Brien for a revocation form. Mr. O'Brien refused to give Mr. Cochrane
the revocation form "because the rules are already stated". Mr.
Cochrane then went back across the street to the Industrial Relations
Office and spoke to Ms. Marcia Pogar a Labor Relations Specialist about
his problem. Ms. Pogar showed Mr. Cochrane the rules about revocation
and also spoke with Mr. O'Brien, who expressed regret that there was no
way that he could help Mr. Cochrane since his anniversary date had past.
Mr. Cochrane was not allowed to revoke his due assignment and he
involuntarily remained on checkoff.
Discussion and Conclusions
The General Counsel takes the position that the requirement that dues
revocation forms may only be obtained, executed and submitted at the
FEMTC office on the anniversary date of an employee's dues assignment or
during a ten (10) day period immediately preceding such date is
inconsistent with, and unreasonably restrictive of, employee rights
under Section 7115(a) of the Statute to revoke a dues assignment after
one year and that by maintaining and enforcing such a requirement the
Naval Shipyard and the FEMTC violated Sections 7116(a)(1), (2), (3) and
(8), and Sections 7116(b)(1), (2) and (8), respectively, of the Statute.
In support of the above position, the General Counsel relies, in the
main, upon the Supreme Court's decision in Felter v. Southern Pacific
Co., 359 U.S. 26, 43 LRRM 2876, and the National Labor Relations Board
and Circuit Court decisions in Newport News Shipbuilding and Dry Dock
Company, 253 NLRB No. 96, enforced 663 F.2d 488, 108 LRRM 2400. The
General Counsel who acknowledges that the Southern Pacific and Newport
News Shipbuilding cases, supra, did not address the 10 day window
period, takes the position that the 10-day window period is unreasonable
on its face and inconsistent with employees Section 7115(a) revocation
rights.
Additionally, the General Counsel contends that the Charging Party
has standing to attack any and all aspects of the revocation procedure,
irrespective of the fact that such other aspects were not used as a
basis for denying Mr. Cochrane's request to revoke his union dues
withholding authorization.
The respective counsel for the FEMTC and the Naval Shipyard take the
position that the requirements set forth in the collective bargaining
contracts, published memoranda and dues withholding authorization forms
with respect to the 10-day window period and other required steps or
procedures necessary for the perfection of a dues revocation are not
unreasonably restrictive of employees rights under Section 7115(a) to
revoke dues assignments after one year. It is the further position of
respective counsel for the FEMTC and the Naval Shipyard that the Felter
v. Southern Pacific Co., supra, and the Newport News Shipbuilding,
supra, cases are inapposite and distinguishable. Additionally, they
rely on a number of District Court cases involving Section 302 suits
under the National Labor Relations Act, 29 U.S.C. 186(c)(4), and an
outstanding Justice Department Opinion on Checkoff dated May 13, 1948,
22 LRRM 46, finding a 10-day window period to be lawful. Finally, the
respective counsel for the FEMTC and the Naval Shipyard challenge the
status of Mr. Cochrane to attack various requirements of the revocation
procedure which were not relied upon or utilized as a ground for denying
Mr. Cochrane's request for the revocation of dues withholding.
With regard to the procedural issue, namely Mr. Cochrane's standing
to challenge those requirements of the revocation procedure which were
not applied to him, I find, in agreement with the position of the
General Counsel, that Mr. Cochrane does have standing to challenge all
the requirements of the revocation procedure, irrespective of the fact
that some of the requirements were not applied to him personally.
National Army and Technicians Assoc., Local 371, 7 FLRA No. 22, wherein
the Authority found that "the person filing a charge need not be the
alleged aggrieved party".
With regard to the remaining issues in the captioned matter, all
parties agree that the case is one of first impression and that the
Authority has not had the opportunity to rule on the issues included
herein.
Other than making it clear that the decision to pay, or not to pay,
dues is solely that of the affected employee, /12/ the legislative
history of the Statute provides little help with the issues involved
herein, namely, the meaning of the language contained in Section 7115(a)
that "any such (dues) assignment may not be revoked for a period of one
year".
However, similar language dealing with dues assignments and
revocation of same, has been considered by the Courts under other
statutes, namely, the Railway Labor Act, 45 U.S.C. 151, et seq. and the
Labor-Management Relations Act, as amended, 29 U.S.C. 151, et seq.
In Felter v. Southern Pacific Co., supra, the Supreme Court was
called upon to interpret Section 45 U.S.C. 152 Eleventh (b) /13/ of the
Railway Labor Act which provided for dues checkoff through a written
assignment "which shall be revocable in writing after the expiration of
one year or upon the termination date of the applicable collective
bargaining agreement, whichever occurs sooner". Specifically, the Court
was called upon to determine what restrictions, if any, could be imposed
upon the statutory right given an employee to revoke his authorization
after one year. The case arose, when an employee unsuccessfully sought
to revoke his assignment of dues withholding more than one year after
its execution.
The Dues Deduction Agreement between the carrier and the union
required that there be used, as a necessary form for revoking an
assignment, nothing other than a writing executed on a form furnished by
the union and forwarded by the union to the carrier. When the affected
employee sought to revoke his dues assignment by means of a written
letter, which was identical in substance to the required form printed by
the union, the union and the employer refused to honor such revocation
until such time as the employee executed the forms required by the Dues
Deduction Agreement then in effect. /14/ By virtue of the actions of
the union and the employer in refusing to accept a written instrument of
revocation other than that provided for in the Dues Deduction Agreement,
the affected employee was involuntarily subjected to additional monthly
dues deductions from his wages.
In finding that the requirement, i.e. written revocation be on a form
furnished by the union, to be an unlawful restriction on the right given
to an employee by Congress to freely opt for dues withholding, or to
revoke any dues authorization in writing after one year, the Court
summarized the defenses put forth in support of the restriction, i.e.
minimize procedural problems, prevention of forgery, prevention of
impulsive or impetuous revocations, reasonableness, etc, and concluded
as follows:
We do not say whether the "cooling off" period which the
procedure insisted upon here creates would be wise or unwise as a
matter of policy. It is enough to say that we believe the Act has
not left place for it. We think the added requirement involved
here is meaningfully burdensome when considered in context; but
in any event, we do not think the Act empowered carriers and labor
organizations to bargain for any restrictions on the individual's
right to revoke his assignment, even if later, while insisting on
them, they choose to describe them as petty.
The Court also noted in its decision as follows:
There is some suggestion that, possibly apart from the
provisions of the Act, because petitioner was a member of the
Trainmen and represented by them in the negotiation of the
bargaining agreement, he is bound here by the action of his agent,
as it were, in establishing this provision. But the short answer
is that the proviso makes it clear that the organization was not
to function as its members' agent in waiving their statutory
revocation rights; we doubt whether the right to revoke could be
waived at all in advance of the time for its exercise, but in any
event, a waiver through the collective agreement would under the
statute, be the last conceivably permissible.
Additionally, the Court stated in connection with the application and
interpretation of the dues deduction and withholding provisions of the
Railway Labor Act as follows:
Carriers and labor organizations are authorized to bargain for
arrangements for a checkoff by the employer on behalf of the
organization. Latitude is allowed in terms of such arrangements,
but not past the point such terms impinge upon the freedom
expressly reserved to the individual employee to decide whether he
will authorize checkoff in his case. Similarly Congress
consciously and deliberately chose to deny carriers and labor
organizations authority to reach terms which would restrict the
employee's complete freedom to revoke an assignment by a writing
directed to the employer after one year. Congress was
specifically concerned with keeping these areas of individual
choice off the bargaining table. It is plainly our duty to
effectuate this obvious intention of Congress, and we must
therefore be careful not to allow the employee's freedom of
decision to be eroded in the name of procedure, or otherwise. We
see no authority given by the Act to carriers and labor
organizations to restrict the employee's individual freedom of
decision by such regulations as were agreed upon in the Dues
Deduction Agreement. The question is not whether these
restrictions might abstractly be called "reasonable" or not.
In Newport News Shipbuilding, supra, the National Labor Relations
Board found that an employer and a union violated Sections 8(a)(1) and
(3) and 8(b)(1)(A) and (2), respectively of the NLRA, 29 U.S.C. 158,
when they refused to honor written dues revocation requests from a
number of employees because the revocation requests were not on specific
forms furnished by the union. /15/ The actions of the union and the
employer were in compliance with a provision of the existing collective
bargaining agreement which provided that "revocation of such
authorization (for dues deductions) shall be by use of the form
furnished by" the union.
The Administrative Law Judge, whose decision was adopted in pertinent
part by the Board, found that the restrictions imposed "engrafted an
additional condition on revocation beyond that specified in the original
delegation of authority" to make the dues deduction. /16/ Additionally,
the Administrative Law Judge found that the impediment to the
statutorily guaranteed right of free choice with respect to revoking
checkoff was aggravated by three additional elements, namely, no general
distribution or convenient access to the required forms, no prior formal
notification of the required procedures to be followed, and the
requirement that the affected employee present himself at the union
office and execute the required revocation form at such location.
In view of the foregoing and in reliance upon the Supreme Court's
decision in Felter v. Southern Pacific Co., supra, which he found
controlling and applicable on all grounds, the Administrative Law Judge
concluded that the union and the employer had violated the NLRA. It
should be noted, however, that although the NLRB did not express any
significant disagreement with the Administrative Law Judges decision, it
did tailor its order to provide that the restrictions should not be
applied where the restrictions were "not set forth in the dues checkoff
signed by the employee". In the absence of any comment from the NLRB,
it could be argued that the NLRB might well have reached a different
conclusion than that of the Administrative Law Judge if, as here, the
restrictions on revocation had been in place at the time the employee
signed his dues withholding authorization.
On appeal the Fourth Circuit in Peninsula Shipbuilders' Ass'n., v.
NLRB, 633 F.2d 488 (1981) upheld and enforced the National Labor
Relations Board's order. The Court found that there was substantial
evidence to support the Board's finding that the revocation procedure
was applied unlawfully, but declined to reach the question of whether
the Dues Deduction Agreement in effect between the union and the
employer was on its face a per se violation under the rationale of
Felter v. Southern Pacific Co., supra.
A reading of the above cited cases indicates that the Courts and the
NLRB have recognized the intent of Congress to insure that an employee's
right to opt for the withholding of dues or to revoke an authorization
for same shall be unencumbered. To this end both the Courts and the
NLRB have been reluctant to approve any restrictions on the exercise of
the right of revocation.
Here, however, as noted by the respective counsel for the Respondents
we have a situation wherein the restrictions on revocation, i.e. use of
a special revocation form to be obtained and filled out in the FEMTC
office within a 10-day period preceding the employees anniversary date,
appear on the Dues Withholding Authorization signed by Mr. Cochrane.
Thus, unlike the situation facing the NLRB in Newport News Shipbuilding,
supra, where the employee had no knowledge of the restrictions prior to
executing the dues withholding authorization, we must now decide whether
an employee's prior acknowledgement of existing restrictions on the
right and manner of revocation mandates a different conclusion that that
reached in Newport News Shipbuilding and Felter v. Southern Pacific Co.,
supra.
Aside from the 10-day period restriction, which will be discussed
infra, I believe that under the circumstances present herein the
question must be answered in the negative.
As noted above, the meager legislative history of the Statute
indicates that the decision to have dues withholding or to cease having
dues withholding is solely that of the employee. Accordingly, any
restrictions on the exercise of such right would be violative of Section
7115(a) of the Statute. Here the record evidence establishes that
pursuant to agreements between the Shipyard and the FEMTC the only way
that an employee may obtain dues withholding or revoke same is through
certain prescribed forms obtained and executed at the FEMTC office.
Inasmuch as the restrictions imposed by such agreements are similar in
many respects to those disapproved by the Courts and Board in Newport
News Shipbuilding and Felter v. Southern Pacific Co., supra, I find such
restrictions to be an unreasonable and unjustifiable burden on the
employee's rights to freely revoke dues withholding authorizations.
Further, contrary to the contention of the Respondents, I do not believe
that a different conclusion is in order by virtue of the fact that the
restrictions were in place and known to Mr. Cochrane at the time he
executed his dues withholding authorization.
While it is true that the restrictions found to be an unreasonable
impediment to the exercise of the rights accorded employees to freely
revoke dues withholding authorizations were enacted subsequent to the
employee's execution of his dues withholding authorization in Newport
News Shipbuilding, supra, such was not the case in Felter v. Southern
Pacific Co., supra, wherein the Supreme Court emphasized that the right
of revocation runs solely to the employee and could not be curtailed by
any agreement between the union and the employer. Here, like the
situation in Felter v. Southern Pacific Co., supra, we have an agreement
between the FEMTC and the Naval Shipyard that provides that dues
withholding revocations could only be effected by a certain prescribed
procedure which not only tracks, but adds additional burdens to, the
procedure found to be an unreasonable impediment to the employee's right
of revocation in Felter v. Southern Pacific Co., supra. The only
distinction appears to be that the restrictions here involved were set
forth on the dues withholding authorization. If the restrictions are
bad standing alone, I can not see how their inclusion on the dues
withholding authorization should alter or add validity to their status.
It is not the place or manner of publication but rather the impact on
the employee's statutory rights which controls.
The Statute does not give the employer any discretion with respect to
dues withholding but rather makes it mandatory upon the receipt of a
written assignment. Thus the form of the written authorization is then
the choice of the affected employee. Similarly, the unfettered right of
revocation after one year runs only to the employee. To the extent an
employer, pursuant to an agreement with a union, insists on the use of a
specific form, obtained and executed at the union's premises, such
action runs contra to a literal reading of Section 7115(a) of the
Statute and accordingly impinges on the employees' statutory rights to
freely opt for dues withholding and revocation of same after the
expiration of one year.
Moreover, while it is recognized that a person and/or a union may
waive various statutory rights, I can not conclude that under all the
circumstances present herein Mr. Cochrane's action in executing the dues
withholding authorization which contained an acknowledgement of the
existing restrictions on the manner of revocation, amounted to a waiver
of his statutory rights. In the absence of any evidence that the Naval
Shipyard would have accepted any writing, other than the specified form,
which was a product of the Naval Shipyard and the FEMTC agreement, as a
valid dues withholding authorization, it can hardly be argued that Mr.
Cochrane's action in executing same amounted to a voluntary
relinquishment of a known right. In this connection it is noted that
the Supreme Court in Felter v. Southern Pacific Co., supra, while
considering the suggestion that the affected employee might be bound by
the actions of the union as his agent in executing the restrictive dues
withholding agreement, stated, among other things, that it "doubt(ed)
whether the right to revoke could be waived at all in advance of the
time for its exercise".
Additionally, it is noted that in the dues withholding authorization
executed by Mr. Cochrane he did not specifically agree to follow the
revocation procedure but merely acknowledged the existence of the
required revocation procedure. To hold in such circumstances that Mr.
Cochrane waived his Section 7115(a) rights would unfairly attribute to
Mr. Cochrane a greater degree of legal sophistication than normally
found in a rank and file employee.
In sum, I find, based primarily on the legislative history of the
Statute and the Supreme Courts decision in Felter v. Southern Pacific
Co., supra, that it was the intent of Congress to give employees the
unfettered right to revoke their respective dues withholding
authorizations after the expiration of one year and that any
unreasonable impediment to the exercise of such right, be it by a
unilateral regulation of the employer, a joint agreement between the
employer and a union or inclusion of same on a dues withholding
authorization, is violative of Section 7115(a) of the Statute.
Accordingly, having forced and/or required Mr. Cochrane to submit a
specific form obtained and executed at the FEMTC office before his
revocation would be valid, the Portsmouth Naval Shipyard and the FEMTC
impinged upon the unfettered right of revocation accorded Mr. Cochrane
by Section 7115(a) of the Statute.
With respect to the remaining issue, i.e. the so-called 10-day window
period during which an employee must request, execute and submit a dues
revocation form, the General Counsel takes the position that such
restriction on revocation "is unreasonable on its face and, therefore,
inconsistent with employees' Section 7115(a) revocation rights". Other
than the aforementioned quoted statement, the General Counsel offers no
further elucidation of his position. The Respondents, on the other
hand, take the position that the 10-day window period for revocation is
not inconsistent with Section 7115(a) of the Statute since the employees
are given the opportunity to revoke after the expiration of each year
from the date of the anniversary of their respective dues withholding
authorizations. In support of their position they rely upon a number of
District Court decisions involving Section 301 of the Labor-Management
Relations Act, 29 U.S.C. 185, in the private sector. Additionally they
rely on a Justice Department Opinion issued in 1948 with respect to
subsection (c)(4) of Section 302 of the Labor-Management Relations Act
which provides, in pertinent part, that an employer may deduct union
dues from an employee's wages if the employer has received "a written
assignment which shall not be irrevocable for a period of more than one
year . . . " .
The Justice Department Opinion was in response to a question raised
by the Solicitor of Labor as to the legality of a dues checkoff
authorization which read in pertinent part as follows:
This assignment, authorization and directive shall be
irrevocable for the period of one (1) year . . . and I agree and
direct that this assignment, authorization and direction shall be
automatically renewed, and shall be irrevocable for successive
periods of one (1) year each . . . unless written notice is given
by me to the Employer and the Union not more than twenty (20) days
and not less than ten (10) days prior to the expiration of each
period of one (1) year . . . .
The Justice Department concluded that "Even with the automatic
renewal provision, the proposed form of authorization does not appear to
be 'irrevocable' for a period of more than one year". In view of such
conclusion it was the opinion of the Justice Department that the dues
checkoff authorization "would not appear to constitute a willful
violation of subsection (c)(4)."
In Shen-Mar Food Products, Inc., 221 NLRB 1331, the National Labor
Relations Board found an 8(a)(5) violation predicated upon the
employer's action in honoring revocations of dues checkoff
authorizations which were submitted outside the period specified for
same in the checkoff authorizations. The checkoff authorizations
provided that they should be effective for successive one year periods
absent notice of revocation given by the employees "not more than twenty
(20) days and not less than ten (10) days prior to the renewal date".
Although the National Labor Relations Board did not go into a
discussion of the validity of the checkoff authorizations, it found that
the employer's action was contrary to the checkoff provision of the
collective bargaining contract and hence a violation of the Statute.
Member Murphy, who concurred in the result, relied solely on the terms
of the checkoff authorization, and found a violation predicated on the
employer's action in honoring the untimely revocations which were not
within the time constraints set forth in the checkoff authorizations.
A similar result was reached by the District Court on October 14,
1975 in a separate 301 suit involving the same parties. Meat Cutters,
Local 593 v. Shen-Mar Food Products, 91 LRRM 2907.
In Trico-Products Corp. 238 NLRB 1309, the NLRB concluded that a
checkoff authorization is a contract between the employer and the
employees and that a checkoff which did not contain any limitation of
revocation is revocable at will. The checkoff read as follows:
I hereby authorize Trico-Products Corp. to deduct dues and
assessments from my wages.
In Brooks v. Continental Can Corp., 59 LRRM 2779, a case involving
the LMRA, the District Court was faced with the validity of a dues
withholding authorization which provided for year to year renewal absent
notice of revocation given "not more than 30 days or less than 10 days
prior to the expiration of each period of one year". After discussing
the Supreme Court's decision in Felter v. Southern Pacific Co., supra,
the Court found the checkoff to be valid and concluded that the employer
did not violate the LMRA in refusing to honor a revocation made outside
the time limits set forth in the dues withholding authorization. In
reaching its conclusion to this effect, the Court stated "It is felt
that where, as here, the parties have all agreed upon a procedure which
protects the individual right of the employee to choose and which at the
same time is consistent with the plain words of the Statute and the
legislative intent, this Court ought not disturb such procedure".
In Monroe Lodge v. Litton Business Systems, 80 LRRM 2379, the Circuit
Court of Appeals affirmed a District Court holding, 80 LRRM 2374, that a
dues withholding authorization providing for automatic yearly renewal
absent notice of revocation during a 15-day period after the expiration
of each year was valid and not violative of Section 302(c)(4) of the
LMRA. The District Court, which was affirmed in toto by the Circuit
Court, found, however, that while an employee was bound by the year to
year renewal set forth in his dues withholding authorization, he was not
obligated to exercise his revocation rights solely within the 15-day
period provided in his dues withholding authorization in order for such
revocation to be effective. Thus, the Court concluded that a revocation
notice given during any year at any time within such year was sufficient
notice to remove the employee from dues withholding immediately upon
reaching the anniversary date of his dues withholding authorization. In
support of its position to this effect the District Court relied upon
the Supreme Court's decision in Felter v. Southern Pacific Co., supra.
In sum, the Court found that irrespective of the time limits set forth
in the dues withholding authorization, an employee could give notice of
revocation at any time during any succeeding year and such revocation
would be effective at the end of such year.
An analysis of the above decisions of the Courts, NLRB and the
opinion of the Justice Department with respect to the validity of dues
withholding authorizations which continue from year to year absent
revocation during specific time or window periods, indicates that such
dues withholding authorizations are valid under the LMRA. Accordingly,
inasmuch as the wording of the dues checkoff provisions of the LMRA and
the Statute are similar and predicated on the identical Congressional
intent to insure that employees will have freedom of choice with respect
to revocation of dues withholding authorizations, I find that dues
withholding authorizations which continue from year to year absent
timely notice of revocation are not violative of Section 7115(a) of the
Statute.
However, in view of the Congressional intent to give employees the
sole right to determine his or her destiny with respect to continued
dues withholding, I further find that in order for such dues withholding
authorizations to be legally effective they must be of such a nature to
indicate that the employees involved clearly and unambiguously waived
their statutory rights to revoke same after the expiration of a period
of time not to exceed one year from the date of execution. In this
latter context, I can not find that the dues withholding authorization
executed by Mr. Cochrane was of such nature.
Contrary to the dues withholding authorizations involved in the cited
cases and considered by the Justice Department in its opinion, Mr.
Cochrane's dues withholding authorization made no mention that in the
absence of a revocation during the 10-day period preceding the
anniversary date of the execution of his dues withholding authorization
the authorization would continue for the succeeding or subsequent year.
Moreover, the dues withholding authorization did not specifically
mention that the dues withholding authorization was to be good for a
period exceeding one year. Thus, in order to find that Mr. Cochrane's
dues withholding authorization to be effective for more than one year
one must add an implication to a literal reading of the dues withholding
authorization and conclude that there was no other reason for the 10-day
window period for revocations but for the parties intent that the dues
withholding authorization was for at least one year and succeeding one
year periods thereafter unless a timely revocation was made. In such
circumstances it can hardly be argued that the dues withholding
authorization was for at least one year and succeeding one year periods
thereafter unless a timely revocation was made. In such circumstances
it can hardly be argued that the dues withholding authorization amounts
to, or qualifies as, a clear and unambiguous waiver of Mr. Cochrane's
Section 7115(a) rights to revoke after the expiration of one year. /17/
Accordingly, I find that Mr. Cochrane could revoke his dues
withholding authorization, effective after his one year anniversary
date, at any time. Cf. Trico Products, Supra. Having given oral notice
of his decision to revoke his dues authorization to the FEMTC in October
1981, Mr. Cochrane was entitled to have his dues withholding terminated
as of his anniversary date. Monroe Lodge v. Litton Business Systems,
supra. Moreover, even if it can be concluded that Mr. Cochrane's dues
withholding authorization was from year to year, absent notice to the
contrary, the Circuit Court decision upholding the District Court in
Monroe Lodge, supra, makes it clear that an employee need not wait until
the window period to give notice of revocation to be effective at the
end of his anniversary year.
Accordingly, upon the basis of the above analysis, findings and
conclusions, I further conclude that the Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, by imposing and
adhering to the restrictions on revocation, issued pursuant to its
agreement with the FEMTC, and withholding dues from the wages of Mr.
Cochrane after the expiration of his anniversary year, violated Section
7116(a)(1) since such action interfered with, restrained and coerced Mr.
Cochrane in the exercise of the rights accorded him by Section 7115(a)
of the Statute. Further, it is concluded that by such action Portsmouth
Naval Shipyard, Portsmouth, New Hampshire, also encouraged membership in
the FEMTC and assisted the FEMTC in violation of Sections 7116(a)(2),
(3) and (8), respectively, of the Statute. /18/
With respect to Respondent, Portsmouth Federal Employees Metal Trades
Council, AFL-CIO, it is concluded that by insisting on enforcement of
the restrictions on revocation, which were a product of its agreements
with the Portsmouth Naval Shipyard, the Portsmouth Federal Employees
Metal Trades Council, AFL-CIO, violated Sections 7116(b)(1), (2) and (8)
of the Statute.
Based upon the above findings and conclusions, it is hereby
recommended that the Authority issue the following order designed to
effectuate the purposes and policies of the Statute.
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute:
A. Respondent Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, shall:
1. Cease and desist from:
(a) Encouraging membership in the Portsmouth Federal Employees Metal
Trades Council, AFL-CIO, or any other labor organization by:
(1) Continuing to deduct union dues from the wages of Lloyd C.
Cochrane, or any other employee, and transmitting such dues to the
Federal Employees Metal Trades Council, AFL-CIO, or any other
labor organization, after Mr. Cochrane or any other employee has
effectively sought to revoke such dues checkoff authorizations.
(2) Maintaining and enforcing a provision in a collective
bargaining agreement which requires that Lloyd C. Cochrane or any
other employee use a particular form obtained and executed at the
offices of the Federal Employees Metal Trades Council, AFL-CIO, in
order to timely revoke dues checkoff authorizations.
(b) In any like or related manner interfering with, restraining or
coercing employees in the exercise of any right under the Federal
Service Labor-Management Relations Statute.
(c) In any like or related manner, failing or refusing to comply with
any provisions of the Federal Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Jointly and severally with Respondent Federal Employees Metal
Trades Council, AFL-CIO, reimburse Mr. Lloyd C. Cochrane with interest
for any dues deducted from his wages after February 17, 1982, the one
year anniversary date of the execution of his dues withholding
authorization.
(b) Post at its facilities copies of the attached Notice marked
Appendix A on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Commander of the Portsmouth Naval Shipyard, Portsmouth, New Hampshire,
and shall be posted and maintained by him for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards and
other places where notices to employees are customarily posted. The
Commander shall take reasonable steps to insure that such Notices are
not altered, defaced, or covered by any other material.
(c) Notify the Federal Labor Relations Authority in writing, within
30 days from the date of this Order, as to what steps have been taken to
comply herewith.
B. Respondent Federal Employees Metal Trades Council, AFL-CIO,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, to deduct
union dues from the wages of Mr. Lloyd C. Cochrane, or any other
employee, pursuant to dues withholding authorizations which are no
longer valid because Mr. Lloyd C. Cochrane, or any other employee,
has effectively sought to revoke such authorizations.
(b) Maintaining or enforcing any provision of a collective
bargaining agreement which impedes Mr. Cochrane or any other
employee, from revoking dues withholding authorizations by their
clear and unambiguous declaration of such intent.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of any right
under the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Jointly and severally with Respondent Department of the
Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire,
reimburse Mr. Lloyd C. Cochrane with interest for any dues
deducted from his wages after February 17, 1982, the one year
anniversary date of the execution of his dues withholding
authorization.
(b) Post at its facilities in Portsmouth, New Hampshire, copies
of the attached Notice marked Appendix B on forms to be furnished
by the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by the President of the Federal
Employees Metal Trades Council, AFL-CIO, and shall be posted and
maintained by him for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. The President
shall take reasonable steps to insure that such Notices are not
altered, defaced, or covered by any other material.
(c) Notify the Federal Labor Relations Authority in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply herewith.
BURTON S. STERNBURG
Administrative Law Judge
Dated: April 13, 1983
Washington, D.C.
APPENDIX A
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
We Hereby
Notify Our Employees That:
WE WILL NOT continue to deduct union dues from the wages of Mr. Lloyd
C. Cochrane, or any other employee, and transmit such dues to the
Federal Employees Metal Trades Council, AFL-CIO, or any other labor
organization, after Mr. Cochrane, or any other employee, has effectively
sought to timely revoke his dues withholding authorization. WE WILL NOT
maintain and enforce a provision in a collective bargaining agreement
which requires that Mr. Lloyd C. Cochrane, or any other employee, use a
particular form obtained and executed at the offices of the Federal
Employees Metal Trades Council, AFL-CIO, or any other labor
organization, in order to timely revoke dues withholding authorizations.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of any right under the Federal
Service Labor-Management Relations Statute. WE WILL NOT in any like or
related manner, fail or refuse to comply with any of the provisions of
the Federal Service Labor-Management Relations Statute. WE WILL jointly
and severally with the Federal Employees Metal Trades Council, AFL-CIO,
reimburse Mr. Lloyd C. Cochrane for any dues deducted from his wages,
with interest, after February 17, 1982, the one year anniversary date of
his execution of a dues withholding authorization.
(Agency or Activity)
Dated: . . . By: (Signature) This Notice must remain posted for 60
consecutive days from the date of posting and must not be altered,
defaced or covered by any other material. If employees have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director of
the Federal Labor Relations Authority, Region One, whose address is:
441 Stuart Street, Ninth Floor, Boston, Massachusetts, and whose
telephone number is: (617) 223-0920.
APPENDIX B
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
We Hereby
Notify Our Employees That:
WE WILL NOT cause or attempt to cause Department of the Navy, Portsmouth
Naval Shipyard, Portsmouth, New Hampshire, to deduct union dues from the
wages of Mr. Lloyd C. Cochrane, or any other employee, pursuant to a
dues withholding authorizations which are no longer valid because Mr.
Lloyd C. Cochrane, or any other employee, has effectively sought to
revoke such authorizations. WE WILL NOT maintain or enforce any
provision of a collective bargaining agreement which impedes Mr. Lloyd
C. Cochrane, or any other employee, from revoking dues withholding
authorizations by a clear and unambiguous declaration of such intent.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce employees in the exercise of any right under the Federal Service
Labor-Management Relations Statute. WE WILL NOT in any like or related
manner, fail or refuse to comply with any provisions of the Federal
Service Labor-Management Relations Statute. WE WILL jointly and
severally with Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, reimburse Mr. Lloyd C. Cochrane for any dues
deducted from his wages, with interest, after February 17, 1982, the one
year anniversary date of his execution of a dues withholding
authorization.
(Union or Labor Organization)
Dated: . . . By: (Signature) This Notice must remain posted for 60
consecutive days from the date of posting and must not be altered,
defaced or covered by any other material. If employees have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director of
the Federal Labor Relations Authority, Region One, whose address is:
441 Stuart Street, Ninth Floor, Boston, Massachusetts, and whose
telephone number is: (617) 223-0920.
--------------- FOOTNOTES$ ---------------
/1/ Pursuant to section 2429.9 of the Authority's Rules and
Regulations, the American Federation of Government Employees and the
International Association of Machinists and Aerospace Workers, AFL-CIO,
each were granted permission to file a brief as an amicus curiae in this
proceeding.
/2/ Sec. 7115. Allotments to representatives
(a) If an agency has received from an employee in an
appropriate unit a written assignment which authorizes the agency
to deduct from the pay of the employee amounts for the payment of
regular and periodic dues of the exclusive representative of the
unit, the agency shall honor the assignment and make an
appropriate allotment pursuant to the assignment. Any such
allotment shall be made at no cost to the exclusive representative
or the employee. Except as provided under subsection (b) of this
section, any such assignment may not be revoked for a period of 1
year.
/3/ Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
(2) to encourage or discourage membership in any labor
organization by discrimination in connection with hiring, tenure,
promotion, or other conditions of employment;
(3) to sponsor, control, or otherwise assist any labor
organization, other than to furnish, upon request, customary and
routine services and facilities if the services and facilities are
also furnished on an impartial basis to other labor organizations
having equivalent status;
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/4/ Sec. 7116. Unfair labor practices
. . . .
(b) For the purpose of this chapter, it shall be an unfair
labor practice for a labor organization--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
(2) to cause or attempt to cause an agency to discriminate
against any employee in the exercise by the employee of any right
under this chapter;
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/5/ Accordingly, the Authority does not adopt the Judge's statement
at n.8 of his Decision.
/6/ See generally Felter v. Southern Pacific Co. et al., 359 U.S. 326
(1959), decided under the Railway Labor Act, and Newport News
Shipbuilding and Dry Dock Company, 253 NLRB 721, enforced sub nom.
Peninsula Shipbuilders Association v. NLRB, 663 F.2d 488 (4th Cir.
1980), decided under the National Labor Relations Act, cited by the
Judge. In Felter the court concluded that the Railway Labor Act
contained no statutory authorization for a requirement that dues
revocations could be effectuated only on forms furnished and forwarded
to the employer by the union, and that Congress had consciously and
deliberately chosen to deny employers and unions the authority to
restrict an employee's right to revoke in such a manner. In Newport
News, the court concluded that refusal to honor written dues revocation
requests because the requests were not on specific forms furnished by
the union as required by the collective bargaining agreement constituted
an unlawful restriction since it was an additional condition not
specified in the employees' dues withholding authorizations.
/7/ Although the Charging Party's attempts to revoke his dues
withholding authorization were rejected because of their untimeliness
and not because he refused to obtain, execute and submit the withdrawal
form at the Union office, he was required to comply with those
procedures, and they were properly alleged as unfair labor practices in
the complaint.
/8/ In concluding that the Respondents violated the Statute as set
forth above, the Authority does not find and should not be construed as
holding that dues revocation forms provided by an exclusive
representative are per se unlawful, but rather that the Union's control
of the forms in the circumstances of this case was unlawfully coercive.
/9/ As the Charging Party was untimely in his attempt to revoke his
dues withholding authorization, reimbursement of dues paid since that
time shall not be required.
/10/ Article 36, Section 11, reads as follows:
No unit employee covered by the terms of this Agreement or any
representative of the Employer shall be permitted to fill out a Dues
Revocation Form (SF-1188) during working hours. Unit employees shall
obtain a copy of the Dues Revocation Form (SF-1188) from the Council
office during nonwork hours. The Council shall immediately forward a
copy of such form to Comptroller.
/11/ The first paragraph of the dues withholding authorization merely
stated in pertinent part as follows: "I hereby authorize the above
named agency to deduct from my pay each pay period the amount verified
above . . . "
/12/ Legislative History Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978, 96th
Congress, 1st Sess., Committee print 110.96-7 (1979) at 694.
/13/ 45 U.S.C. 152 Eleventh (b) permits a labor organization and the
carrier:
(b) to make agreements providing for the deduction by such
carrier or carriers from the wages of its or their employees . . .
and payment to the labor organization representing . . . such
employees, of any periodic dues. . . . : Provided, That no such
agreement shall be effective with respect to any individual
employee until he shall have furnished the employer with a written
assignment to the labor organization of such membership dues. . .
. , which shall be revocable in writing after the expiration of
one year or upon the termination date of the applicable collective
agreement, whichever occurs sooner.
/14/ The dues withholding authorization executed by Felter, the
affected employee, was on a form printed by the Union pursuant to the
Dues Deduction Agreement. The decisions of the District Court, Circuit
Court and the Supreme Court do not contain the substance of the dues
withholding authorization nor do they indicate whether or not the
employee was aware of the content of the Dues Deduction Agreement which
also provided for the use of a specific form for revocation.
/15/ Section 320(c)(4) of the Labor-Management Relations Act, 29
U.S.C. 186(c)(4), which amended the NLRA, provides that an employer may
withhold dues and remit same to a labor organization if,
That employer has received from each employee, on whose account
such deductions are made, a written assignment which shall not be
irrevocable for a period of more than one year, or beyond the
termination date of the applicable collective bargaining
agreement, whichever occurs sooner.
/16/ The dues deduction assignments stated as follows:
Your authority to make the above-mentioned deductions shall
remain in force and effect until revoked by me in writing.
/17/ The Statute merely states that any dues authorization "may not
be revoked for a period of one year". It does not state that after the
expiration of one year it shall be effective from year to year absent
timely notice to the contrary. In such circumstances, absent an
agreement to the contrary, it would appear that an employee would be
free to revoke his dues authorization any time after the expiration of
one year.
/18/ In finding that the Portsmouth Naval Shipyard violated the
Statute by continuing to withhold union dues from the wages of Mr.
Cochrane's wages after the one year anniversary date of his dues
withholding authorization, I am aware that Mr. Cochrane did not transmit
his desire to revoke his dues withholding authorization to the
Portsmouth Naval Shipyard until February 24, 1982. However, inasmuch as
the record evidence makes it clear that the Portsmouth Naval Shipyard
would not have, in any event, honored the revocation absent the use of
the form specified in its agreement with the FEMTC, I find that any
request for revocation to the Portsmouth Naval Shipyard, absent the
form, would have been a futile gesture. Since the law does not require
a futile act, I find that the absence of a request for revocation
directed to the Portsmouth Naval Shipyard does not, under the
circumstances present herein, preclude an unfair labor practice finding
and an order requiring the Portsmouth Naval Shipyard to reimburse Mr.
Cochrane for all dues deducted from the wages of Mr. Cochrane after the
expiration of his anniversary year.