19:0586(77)CO - Navy, Portsmouth Naval Shipyard, Portsmouth, NH and Lloyd C. Cochrane and Portsmouth FEMTC and Lloyd C. Cochrane -- 1985 FLRAdec CO
[ 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.