United States Postal Service

POSTAL SERVICE United States Postal Service and William Huber and Bert C. Franklin American Postal Workers Union and William Huber and Bert C. Franklin. Cases 9-CA-22239(P), 9-CA-22396(P), 9-CB-6245(P), and 9-CB- 6301(P)

7 August 1986

DECISION AND ORDER

BY CHAIRMAN DOTSON AND MEMBERS

JOHANSEN AND BABSON On 5 December 1985 Administrative Law Judge Joel A. Harmatz issued the attached decision. The General Counsel filed limited exceptions and a sup- porting brief, and the Respondents filed answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that Respondent American Postal Workers Union (Union) violated Section 8(b)(1)(A) of the Act by refusing to honor the valid resignations of William Huber and Bert C. Franklin. I The judge also found, however, that the Union and Respondent United States Postal Serv- ice (Postal Service) did not violate Section 8(b)(1)(A) and Section 8(a)(1) and (3), respectively, by refusing to honor Huber's and Franklin's revo- cations of their dues-checkoff assignments . We dis- agree with his failure to find these violations. In Postal Service, 279 NLRB 40 ( 1986), a case which issued subsequent to the judge's decision in this case, the Board held that the dues-checkoff au- thorization used by the Postal Service provided for the payment of dues as a quid pro quo for union membership and was therefore revocable when union membership ceased to exist by virtue of an effective resignation from membership.2 For the reasons set forth in that decision , we find that Huber's and Franklin's dues-checkoff authoriza- tions in the instant case-identical to that in the Postal Service case-were revoked by operation of i No exceptions were filed to this finding.

2 In reaching this conclusion the Board relied on Machinists Local 2045 (Eagle Signal), 268 NLRB 635 (1984); and Steelworkers Local 7450 (Asarco, Inc.), 246 NLRB 878 (1979) The judge, although acknowledging these cases , failed to follow or distinguish them , characterizing them as merely a "recent trend " 1439 law when they resigned their union membership. 3 Accordingly, we find that by refusing to honor the revocations of Huber and Franklin , the Postal Service violated Section 8 (a)(1) and (3) and the Union violated Section 8(b)(1)(A).

THE REMEDY Having found that the Respondents have en- gaged in and are engaging in unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 8(b)(1)(A) of the Act, we shall order that they cease and desist therefrom and take certain affirma- tive action necessary to effectuate the purposes of the Act. We shall order the Respondents to make em- ployes William Huber and Bert C. Franklin whole for any monetary losses they may have suffered by reason of the Respondents' unlawful refusal to honor their revocations of dues-checkoff assign- ment after they had effectively resigned from union membership, to be computed in a manner consist- ent with Board policy as stated in Ogle Protection Service, 183 NLRB 682 (1970), with interest in ac- cordance with the formula prescribed in Florida Steel Corp., 231 NLRB 651 (1977).

ORDER The National Labor Relations Board orders that: A. Respondent United States Postal Service, Cincinnati, Ohio, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Refusing to honor the revocation of dues- checkoff assignment by employees having effec- tively resigned from union membership, where the employees' dues-checkoff assignments were in con- sideration of union membership.

(b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action neces- sary to effectuate the policies of the Act.

(a) Jointly and severally with Respondent Amer- ican Postal Workers Union reimburse or refund to William Huber and Bert C. Franklin the dues un- lawfully collected from them, with interest, for the period following their valid resignations from union membership and revocations of dues-check- off assignment as set forth in the remedy section of this decision. a Member Johansen notes that the same result is reached if we con. strue the authorization to continue but that, as the amount of dues owed is zero, zero is the amount to be deducted and remitted

280 NLRB No. 169 1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD

(b) Post at its facility in Cincinnati, Ohio, copies of the attached notice marked "Appendix A."4 Copies of the notice, on forms provided by the Re- gional Director for Region 9, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.

(c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. B. Respondent American Postal Workers Union, its officers , agents, and representatives, shall

1. Cease and desist from

(a) Refusing to honor the valid resignations by employees from union membership.

(b) Refusing to honor the revocation of dues- checkoff assignment by employees having effec- tively resigned from union membership, where the employees' dues-checkoff assignments were in con- sideration of union membership.

(c) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action neces- sary to effectuate the policies of the Act.

(a) Jointly and severally with Respondent United States Postal Service reimburse or refund to Wil- liam Huber and Bert C. Franklin the dues unlaw- fully collected from them, with interest, for the period following their valid resignations from union membership and revocations of dues-check- off assignment as set forth in the remedy section of this decision.

(b) Post at its business office in Cincinnati, Ohio, copies of the attached notice marked "Appendix B."5 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. * If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " s See fn . 4, supra.

(c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply.

APPENDIX A

NOTICE To EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice.

WE WILL NOT refuse to honor the revocation of dues-checkoff assignment by employees having ef- fectively resigned from union membership, where the employees' dues-checkoff assignment was in consideration of union membership.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act.

WE WILL, jointly and severally with American Postal Workers Union, reimburse or refund to Wil- liam Huber and Bert C. Franklin the dues unlaw- fully collected from them, with interest, for the period following their valid resignations from union membership and revocations of dues-check- off assignment.

UNITED STATES POSTAL SERVICE

APPENDIX B

NOTICE To MEMBERS

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice.

WE WILL NOT refuse to honor the valid resigna- tions by employees from union membership.

WE WILL NOT refuse to honor the revocation of dues-checkoff assignment by employees having ef- fectively resigned from union membership, where the employees' dues-checkoff assignment was in consideration of union membership.

WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL, jointly and severally with United States Postal Service, reimburse or refund to Wil- liam Huber and Bert C. Franklin the dues unlaw- fully collected from them, with interest, for the

POSTAL SERVICE period following their valid resignations from union membership and revocations of dues-check- off assignment.

AMERICAN POSTAL WORKERS UNION Cassius Gravitt Jr., Esq., for the General Counsel. Maria T. Robinson , Esq., of Chicago , Illinois , for the Re- spondent Employer. Penny Piker, Esq. (O 'Donnell, Schwartz & Anderson), of Washington , D.C., for the Respondent Union.

DECISION STATEMENT OF THE CASE

JOEL A. HARMATZ, Administrative Law Judge. This proceeding was heard by me on 9 October 1985, on con- solidated complaints issued in Cases 9-CA-22239(P) and 9-CB-6245(P),1 on 9 September 1985, and in Cases 9- CA-22396(P) and 9-CB-6301(P)2 on 24 September 1985. The complaints respectively allege that Respondent Em- ployer violated Section 8(a)(1) and (3) of the Act both by refusing to honor employee resignations from union membership and by refusing to cancel checkoff authori- zations on request of the employees. The complaints fur- ther allege that Respondent Union violated Section 8(b)(1)(A) of the Act by refusing to honor the attempts to resign and by continuing to receive and accept mem- bership dues deducted by Respondent Employer pursu- ant to the contractual checkoff arrangement. In duly filed answers, Respondents each denied that any unfair labor practices were committed. Following close of the hearing, briefs were filed on behalf of the General Coun- sel, the Respondent Union, and the Respondent Employ- er. On the entire record in this proceeding, including my opportunity directly to observe the witnesses while testi- fying and their demeanor, and consideration of the posthearing briefs, I make the following

FINDINGS OF FACT

1. JURISDICTION Respondent Employer is a segment of the Postal Serv- ice system operating within the United States of America with various facilities throughout the United States, in- cluding Cincinnati, Ohio, the sole facility involved in this proceeding. Jurisdiction exists with respect to Respond- ent Employer's operations by virtue of Section 1209 of the Postal Reorganization Act. 11. THE LABOR ORGANIZATION INVOLVED The complaints allege, Respondents admit, and it is found that American Postal Workers Union is a labor or- ganization within the meaning of Section 2(5) of the Na- tional Labor Relations Act.

I The original charge in Case 9-CA-22239(P) was filed on 26 July 1985 , and that in Case 9-CB-6245(P) was filed on 24 June 1985.

1 The original charge in Case 9-CA-22396(P) was filed on 13 Septem- ber 1985, with that in Case 9--CB-6301(P) filed on 26 August 1985. III. THE ALLEGED UNFAIR LABOR PRACTICES 1441 A. Preliminary Statement This proceeding must be viewed with reference to recent decisions which have afforded primacy to the policy of "voluntary unionism," thereby producing a body of law restricting internal regulation and enforce- ment of union membership obligations. See, e.g., Pattern Makers League Y. NLRB, 473 U.S. 95 (1985). In those cases, the rights of individual members were upheld under circumstances entirely different than presented here. Nonetheless the breadth of the holdings, together with the trend reflected therein, are factors which must be considered in any unfair labor practice case delving into the relationship between employee and union. In this case, the complaint does not seek to disturb the administration of internal union discipline. Instead, it challenges the legitimacy of union restrictions, regardless of form or purpose, on the right of an employee to with- draw from membership, and seeks to uphold a resigning employee's request for cancellation of dues checkoff even when revocation is untimely under the terms of the wage assignment contract. Thus, an overview of the case discloses that two postal workers attempted to resign their union member- ship and to revoke checkoff at a time when their payroll assignments were irrevocable under their voluntarily en- tered checkoff agreements. The resignations were not ac- cepted by the Respondent Union, and consistent with ex- press terms of the subsisting collective bargaining agree- ment, Respondent Employer continued to enforce check- off, deducting dues from the earnings of the aforesaid employees and remitting same to Respondent Union. The General Counsel contends that by these actions the Re- spondent Employer violated Section 8(a)(3) and (1) of the Act, while the Respondent Union violated Section 8(b)(l)(A). In support, it is argued that on authority of Pattern Makers, employees are free to resign membership at any time, and their having done so in this case cancels checkoff by operation of law, irrespective of restrictions on revocability imposed on the face of the original dues- deduction authorization. See, e.g., Machinists (Eagle Signal), 268 NLRB 635 (1982). B. The Facts

1. The checkoff assignments The obligations incurred by the Charging Parties in executing checkoff and joining the Union in this case might best be described as typical. Other than the pay- ment of dues, membership status exacted no responsibil- ity whatever to the Union. The Union maintains no regu- lations which impose obligations with respect to such conventional subjects of internal union concern as picket line or strike solidarity, loyalty, attendance at union meetings , or deportment toward fellow members. More- over, no internal mechanism exists for disciplining an errant member . It was in this context that Charging Par- ties William Huber and Bert Franklin voluntarily execut- ed an "Authorization for Deduction of Dues" (Form 1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1187). Insofar as material that document set forth the fol- lowing:

I hereby assign to the American Postal Workers Union AFL-CIO, from any salary or wages earned or to be earned by me as your employee (in my present or any future employment by you) such reg- ular and periodic membership dues as the Union may certify as due and owing from me, as may be established from time to time by said Union. I au- thorize and direct you to deduct such amounts from my pay and to remit same to said Union at such times and in such manner as may be agreed upon between you and the Union at any time while this authorization is in effect. This assignment, authorization and direction shall be irrevocable for a period one (1) year from the date of delivery hereof to you, and I agree and direct that this assignment , authorization and direc- tion shall be automatically renewed, and shall be ir- revocable for successive periods of one (1) year, unless written notice is given by me to you 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 year. This assignment is freely made pursuant to the provisions of the Postal Reorganization Act and is not contingent upon the existence of any agreement between you and my Union.3 Execution of this form, and assumption of the obliga- tions thereby assumed by Huber and Franklin, was a purely voluntary gesture, as neither a union shop nor other form of compulsory membership is permissible in the Postal Service. Consistent with the terms of Form 1187, successive collective -bargaining agreements negoti- ated between the Respondent Union and the Respondent Employer included checkoff provisions, which in materi- al part provided as follows: In conformity with Section 2 of the Act, 39 U.S.C. 1205, without cost to the unions , the employer shall deduct and remit to the appropriate union the regu- lar and periodic union dues from the pay of em- ployees who are members of such union, provided that the employer has received a written assignment which shall be irrevocable for a period of not more than one year, from the employees on whose ac- count such deductions are to be made. The employ- er agrees to remit to each union all deductions to which it is entitled fourteen (14) days after the end of the pay period from which such deductions are made . Deductions shall be in such amounts as are designated to the employer in writing by each union. The restrictions on revocability set forth in the above contractual provision and that contained on the face of Form 1187 complied with governing law. Thus, Section 302(cX4) of the National Labor Relations Act authorizes negotiation and enforcement of checkoff arrangements provided the employee 's written assignment is "not be ir- revocable for a period of more than one year, or beyond the termination date of the applicable collective agree- ment , whichever occurs sooner .. . ." Along the same line, section 1205 of the Postal Service Reorganization Act provides that checkoff, assignments "shall be irrevo- cable for a period of not more than one year ." Finally, the provisions for automatic annual renewal and an annual escape period of 10 days has been upheld by the Board as legitimate and in accord with the requirements set forth in section 1205 of the Postal Reorganization Act, 39 U.S.C. § 1205 . Postal Service , 248 NLRB 5 (1980).

2. The individual withdrawals a. William Huber Huber, a postal employee of some 25 years, following an earlier resignation from the Union, on 26 February 1980, executed his Form 1187 authorizing dues withhold- ing on behalf of the Union. The date of receipt stamped on that document by the Postal Service was 27 February 1982. Several years later, by letter dated 30 May 1985, Huber wrote the Union stating as follows: Please be advised that with this letter, I tender my resignation from Local No. 164 A.P.W.U., con- sequently all affiliations with Local #164 A.P.W.U. (including the financial ones ) will cease and desist as of May 30, 1985.

A copy of this letter will be forwarded to U.S.P.O. c/o Personell [sic] Department. Cinti [sic], Ohio, . . . for the purpose of terminating the deduc- tions of union dues from my wages.4 On 5 June 1985 Huber visited the personnel office of the Postal Service where he executed a "Cancellation of Payroll Deductions for Labor Organization Dues" (Form 1188). This document was the established means by which employees canceled their "authorization for the deduction of dues." That completed by Huber on its face signified that the cancellation date in his case was 27 February. Huber delivered Form 1188 to Ann Clark, a Postal Service employee assigned to the personnel de- partment. Clark told Huber that his checkoff revocation would be rejected because he missed his anniversary date. Huber mentioned "a change in the law whereby it was unlawful for a union to put any restrictions on a member who wanted to resign ." Clark responded that she was unaware of this, and that the Postal Service would follow established practice concerning such mat- ters.5 By letter of 5 June 1985, Clark formally notified Huber that his checkoff authorization could only be re- voked in accordance with the terms of Form 1187. Huber was instructed to resubmit the form 10 or 20 days before the anniversary date of 27 February. * See G C Exh 3

3 See G C. Exh 2 s See G C Exh 4

POSTAL SERVICE The following week on 10 June 1985, Huber had a telephone conversation with John Panzeca, who was then assistant director of the Union. Huber's attempted resignation was discussed . The asserted change in law was mentioned by Huber, and an argument ensued whether it was in Huber's interest to resign. Later, on 17 June 1985, Huber had a conversation with Jack Panzeca, the Union's president. He inquired about when he could pick up the dues that management had remitted to the Union from his earnings . Panzeca indicated that the only way he knew that the checkoff could be suspended was through the submission of Form 1188. Huber indicated that he had attempted this, but the Postal Service object- ed, adding that he felt that this was against the law. Pan- zeca responded that he was not a lawyer, knew nothing about any change in law, but did know that Huber could not resign until he got the Postal Service to accept Form 1188. As of the date of the hearing, the Postal Service had not suspended deduction of dues from the pay of Huber, and their remittance to the Union had continued. b. Bert C. Franklin Franklin was employed by the Postal Service for some 19 years prior to the events here in issue. He executed Form 1187, authorizing checkoff, in September 1982. The time stamp , signifying the anniversary date for pur- poses of checkoff, appearing on that document was 27 September 1982.6 On 2 May 1985 Franklin went to the personnel department where he completed Form 1188. Shortly thereafter, on 6 May, he received a form letter pointing out that his Form 1188 would not be processed in that it was untimely with respect to his anniversary date of 27 September.? See G C Exh 7 Franklin testified that he had been informed by Joseph Bums , a representative of the personnel department , that his anni- versary date was 5 May 1981 Bums did not testify Considering the dates reflected on G C Exh 6, and my own dubious regard for the credi- btlity of Franklin, together with other circumstances in the record, in- cluding the fact that Franklin had executed a checkoff authorization on behalf of another labor organization , National Alliance of Postal and Federal Employees , I do not believe that Franklin had been misled about the anniversary date According to the more believable testimony of Clark and Brainsford, Franklin did not counter the Postal Service's position concerning his an- niversary date with argument that earlier he had been given a different date His own testimony in this regard was suspect For a while he stressed emphatically that he argued his case before them on the basis of a "change in law," in contrast, his testimony was vague and lacking in spontaneity when he was examined on the question of whether he raised the issue concerning conflicting anniversary dates On the total record, in discrediting Franklin's story as unlikely , I do not rely on testimony by Ann Clark about information received in a telephone conversation with another Postal Service clerical concerning the relevance of the 5 May 1981 date made evident within personnel records ° See G C. Exh 8(a) I do not credit Franklin's testimony that a docu- ment which has been identified and received as G C Exh 8(b) was at- tached to the letter in question The letter was sent by Robin Bralnsford, a personnel clerk I credit her testimony that she would not have includ- ed any such document as an attachment to such a letter and that, prior to the hearing, she had never even seen the alleged attachment Indeed, a comparison of G C Exh 8(b) with a more current version of the Employ- ee & Labor Relations Manual, which is in evidence as U Exh 5, confirms testimony by Ann Clark that the former had been superseded and was not in existence at the time G C Exh 8(a) was sent to Franklin Finally, it is considerd unlikely that Bralnsford would have forwarded the outdat- ed page of a personnel manual, particularly as it reflected guidelines 1443 On 17 July Franklin returned to the personnel office where he again talked to Robin Brainsford. At that time, he reported that he had heard that the law had been changed concerning his right to revoke his dues obliga- tion. Brainsford indicated that she had not heard of this. Franklin filled out and filed another Form 1188 and left it with Brainsford who stated that it would be proc- essed.8 Consistent with this assurance , this time, Franklin did not receive a rejection letter from the Postal Service. However, in accord with the anniversary date set forth on his Forms 1187 and 1188, his dues deductions contin- ued. Accordingly, Franklin during ensuing weeks re- turned twice to the personnel office, once in July and once in August. On both occasions he was told that his Form 1188 was being processed. In the meantime it does not appear that Franklin made any attempt to communicate with or resign from union membership prior to 14 August 1985. By letter of that date he wrote the Union's president as follows:

I am writing this letter to tender my resignation from your Union and to have my dues authorization revoked at this time.

I have been a member of your Union since May of 1981, I have also been a member, for sometime, of the National Alliance and as of the present I find it financially unreasonable to belong to the two or- ganizations any longer. I hope and pray that you honor this request at this time, and maybe at some- time in the future you will welcome me back to your Union. Franklin again appeared at the personnel office 19 August. He showed Ann Clark a copy of the above letter. She informed Franklin that he would not have to submit another Form 1188, that which he submitted in July would suffice, and that it would be processed so that his dues would be stopped in September.9 Later by letter dated 21 August 1985, Jack Panzeca in- formed Franklin as follows: You have requested your dues authorization to the APWU be revoced [sic]. As the form 1187 that you voluntarily signed in- dicates, your assignment of dues to the APWU is ir- which were materially different from the point clearly manifested in her covering letter a Se G.C Exh 9

9 According to testimony by Ann Clark, Form 1188 filed by Franklin in July was in fact processed , and checkoff in his case had been suspend- ed effective the 16th pay period , which would have corresponded to early August It was my impression that Clark was mistaken about the precise pay period in question Pay stubs submitted by Franklin covering later pay periods reflect dues deductions on behalf of Respondent Union continued into the last payroll period in September Moreover , under the terms of the collective -bargaining agreement , and the practices in effect, the Postal Service would have violated the terms of the checkoff provi- sion had it suspended the arrangement prior to the payroll period in which 27 September fell It is considered probable, considering normal withholding procedures , and Respondent 's obligation to the Union under the checkoff agreement , that cancellation would not have been made evi- dent to Franklin until his next payday, on 18 October, a date some 9 days following close of the instant hearing 1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD revocable for a year. If you wish to withdraw your assignment, you may do so by filing a form 1188. Not more that 20 days and not less than 10 days prior to the expiration of one year from the date you first signed the form 1187 [sic]. You may obtain a form 1188 at the Post Office. Accordingly, in that you have not followed the proper proceedure [sic], as set forth in the contract and Postal regulations, your revocation of your dues assignment cannot be honored at this time. There is no evidence that the Union ever communicat- ed to Franklin its position concerning his request for res- ignation . Nonetheless, its rejection was effected construc- tively, in light of clear union policy that members, situat- ed similarly to Franklin, could only resign on submission of a timely Form 1188. Although the record does not establish that this was so, in the event that checkoff in Franklin's case was car- ried beyond the payroll period which included his "anni- versary date," Respondent Employer represented at the instant hearing that this would have been inadvertent as it intended to terminate deductions at that time, and hence a refund would be made to Franklin in the event of any such error. C. Concluding Analysis

1. The membership resignations It had taken a quarter of a century, but in 1982 lan- guage appeared in a Board decision suggesting that a labor organization under the Taft-Hartley Act could not lawfully prevent a member from resigning at any time, under any conditions, and for any reason. See Machinists Local 1327 (Dalmo Victor), 263 NLRB 984 (1982) (con- cerning opinion of Chairman Van de Water and Member Hunter). In 1984 this "membership at will" concept became Board law. Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984). A year later, the Supreme Court endorsed this view, reasoning that the policy of "voluntary unionism" takes precedence over Congressional policy designed to "preserve unions' con- trol over their own `internal affairs."' See Pattern Makers League Y. NLRB, 473 U.S. 95 (1985). In doing so, the Court agreed that restrictions on membership resigna- tions were invalid even if not addressed to Section 7 ac- tivity, but resting instead exclusively upon matters of le- gitimate internal union concern. In this regard the Court stated: Section 8(b)(1)(A) allows unions to enforce only those rules that "impair no policy Congress has im- bedded in the labor laws...." Scofield v. NLRB,

394 U.S.... at 430 . The Board has found union re- strictions on the right to resign to be inconsistent with the policy of voluntary unionism implicit in Section 8(a)(3). [Citations omitted .] We believe that the inconsistency between union restrictions on the right to resign and the policy of voluntary unionism supports the Board 's conclusion. presenting the issue involved union members , intent on engaging in activity protected by Section 7 of the Act, who could do so, without risk of internal union disci- pline , only by resigning from membership , an act itself precluded by an internal union rule. Obviously, however, the rationale underlying the holdings therein transcended those narrow facts . Moreover , any room for a union, under any circumstances , to lawfully restrict resignations was removed emphatically in Sheet Metal Workers Local 73 (Safe Air), 274 NLRB 374 (1985), in which the Board stressed that "any restrictions placed by a union on its members ' right to resign . . . are unlawful ." See also Machinists Local 1769 (Dorsey Trailers), 271 NLRB 911, 912 (1984). In the instant case , it is clear that , subject to the pay- ment of dues , the status conferred by membership was merely a nominal one, imposing no obligations whatever. Indeed , it takes no great insight to perceive that the in- stant controversy was produced by a desire on the part of Respondents to preserve the integrity of voluntarily assumed checkoff obligations on the one hand, and the desire of the Charging Parties to evade restrictions on revocation which they knew , or should have known, were designed to preclude revocation at the time. None- theless , whatever the equities , the precedent is absolute, leaving no room for accommodation . Under the present state of the law, employees have an enforceable statutory right to resign from union membership for any reason, at any time, subject only to constraints imposed by a lawful security clause. % Accordingly, on authority of the precedent cited above, and pursuant to an apparent admission on the part of Respondent Union,1° it is concluded that the latter violated Section 8(b)(1)(A) by refusing to honor the clearly manifested and reasonably communicated inten- tion to resign in the case of both Huber and Franklin. Contrary to the complaint , however , there is no evi- dence that the Postal Service expressed any position, or otherwise conspired to frustrate the resignations. Hence a parallel allegation implicating Respondent Employer in this offense is dismissed.

2. The revocation of checkoff Different considerations govern attempts to revoke checkoff. This noncompulsory method of dues payment is customarily memorialized by a written agreement be- tween the employee and employer. The Board has rec- ognized this form of wage assignment as an enforceable contract. See Cameron Iron Works, 235 NLRB 287 (1978). Unlike the presently recognized right to resign union membership on an "at will" basis, decisional prece- dent is not similarly disposed toward checkoff. Thus, there is no policy permitting employees to ignore the otherwise legitimate restrictions on checkoff revocation set forth on the face of their voluntarily entered wage as- signment. Nor does case law support an employee's right to avoid such a contractual limitation, simply by resign- ing from a union. As shall be seen, the right to revoke in This view of the law emerged from fact patterns em- 1O See the postheanng beef filed on behalf of Respondent Union, Br. bodying an important common denominator. All cases 9

POSTAL SERVICE defiance of specified "escape periods" has been recog- nized only when language on the face of the authoriza- tion reflects a mutual understanding that dues deduction is to continue only so long as the employee desires union membership. Consistent with these observations, in 1976, the Board upheld restrictions on checkoff revocation, concluding that a wage assignment of "union initiation fees and dues" is not revoked automatically on resignation, but is governed by the terms of the authorization form, read together with the applicable parts of the collective-bar- gaining agreement . See Shen-Mar Food Products, 221

NLRB 1329 (1976), enfd. as modified on other grounds

557 F.2d 396 (4th Cir. 1977). Three years later, a like result was reached in Frito-Lay, 243 NLRB 137 (1979), on the basis of a checkoff authorization substantively in- distinct from that in Shen-Mar, supra. Perhaps, even more direct in its impact on this case is the Board's deci- sion in American Nurses Assn., 250 NLRB 1324 (1980), in which it was stated: [R]esignation from the Union does not constitute revocation of dues-checkoff authorizations . . . [as] union security and dues checkoff are distinct and separate matters. The General Counsel would counter the above hold- ings, relying on a line of decisions which find their gene- sis in San Diego District Council of Carpenters (Campbell Industries), 243 NLRB 147, 148-149 (1979) (Chairman Fanning and Member Jenkins, Member Murphy dissent- ing). There, a divided Board found that membership res- ignations automatically canceled otherwise irrevocable checkoff authorizations. In so holding, the Board con- cluded that by language in the authorization itself check- off was conditioned on continued membership; ergo, when membership ended, the authorization for checkoff ended by operation of law. There, employees were exon- erated from the "escape period" solely on the basis of language in the authorization stating that the wage as- signment was furnished "in consideration of the benefits received and to be received by me as a result of my membership in the Union." On this basis the Board ma- jority distinguished Frito-Lay, supra, and held that check- off was thereby conditioned on union membership. In 1979, this view was extended in Steelworkers (Asarco), 246 NLRB 878 (1979) (Members Penello and Truesdale, with Member Murphy dissenting). There, a resignation was deemed by the majority to excuse an otherwise untimely revocation solely because the check- off authorization requested wage deductions "as my membership dues in said Union." The majority viewed this language as tantamount to a statement that payment of dues was in consideration of, and continued only so long as , union membership . Accordingly, it was reasoned that as no provision for "financial core membership" ap- peared in the authorization or the collective-bargaining agreement, resignation, by operation of law , canceled checkoff, a rationale considered by the majority to be in line with Frito-Lay, supra. An even broader construction of the impact of mem- betsbip resignation appeared in Machinists Local 2045 1445 (Eagle Signal), 268 NLRB 635, 637-638 (Chairman Dotson and Members Zimmerman and Hunter ). In this 1984 decision , the Board reasoned that language in a basic checkoff authorization made payment of dues the quid pro quo for union membership . The terms authoriz- ing checkoff on which that result turned were as follows: Deduct from my pay . . . my regular monthly Union dues . . . in accordance with regular mem- bership dues in the International Association of Ma- chinists and Aerospace Workers. t i Notwithstanding this more recent trend , consistent with Congressional guidelines and ordinary contract principles , absent an expression on the face of the check- off authorization that dues deductions are to cease on termination cf membership , the stated limitations on rev- ocation prevail . i 2 Even in Campbell, supra, and its prog- eny, it was at least arguable that each checkoff authori- zation contained language defining the dues commitment as the obligation of the employee as a member. In Shen- Mar, on the other hand, critical language of the checkoff provision did not use the possessive in reffering to "Union initiation fees and dues ," but simply stated:

I hereby authorize my Employer to deduct .. , and pay over to Local 593 those Union initiation fees and dues that may now or hereafter be established by said local. The same was true of Frito-Lay, supra. Here, as well , the checkoff authorizations fail to ac- knowledge membership status on the part of the employ- ee, but merely use "membership" as a term of reference. Thus, the language on the present authorizations states:

I hereby assign to the . . . (Union) . . . from any salary earned or to be earned by me as your em- ployee . . . such regular and periodic membership dues as the Union may certify as due and owing from me, as may be established from time to time by said Union. The critical terminology of condition does not appear. Accordingly, on authority of Shen-Mar, Frito-Lay, and American Nurses Assn., supra, it is concluded that the re- strictions on revocation imposed on the face of the

11 The result reached in Eagle Signal is difficult to reconcile with the holding in American Nurses Assn, supra, in which the opposite result was reached on language in the assignment authorizing deduction of "all my union membership dues and membership assessments ." Though the sub- stantive difference between the language appearing on the face of the checkoff assignment in the respective cases is far from obvious, American Nurses Assn, supra, was neither discussed , nor distinguished in Eagle Signal

12 There is no suggestion in decisional precedent that resignation alone cancels checkoff Indeed, any such view would be inconsistent with the intent of Congress , as manifested in Sec 302(c)(4), and Sec. 1205 of the Postal Reorganization Act where employees are guaranteed the right to revoke under statutorily prescribed conditions, termination of member- ship, though an obvious possibility, is not among these conditions As noted by Respondent-Union, to hold that nonmembers may freely revoke checkoff is to restrict irrevocable checkoff to union members who have an enforceable obligation to pay dues in any event Any such result would appear to be irreconcilable with express legislative action. 1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD checkoff agreement between the employees and the Postal Service are lawful and enforceable , that the re- strictions were not neutralized by language conditioning checkoff on union thembership,13 and that the Postal Service not only acted lawfully, but was under an affirm- ative statutory duty to continue to honor the clear, un- ambiguous terms thereof until timely revoked. The 8(a)(3) and (1) allegations against the Postal Service and the 8(b)(1)(A) allegation against Respondent Union in this respect shall be dismissed.

1 3 To allow the issue to turn on one 's ability to characterize thew e assignment as making dues the quid pro quo for union membership wd seem to grant dispositive weight to an oversimplification Quid pro quo represents a phrase appropriately employed to depict "consideration" un- derlying a contract . Its meaning, however , is broad , and hence the phrase would not necessarily define the conditional nature of obligations as- sumed within a basic contract For example , under a conventional lease, rent universally is the quid pro quo for possession Nonetheless a lessee's abandonment of premises in midterm would not alone eliminate further liability for rent , a result possible only if language in the lease agreement reflected a mutual understanding that rent was to continue only so long as the lessee elected to occupy the premises.

CONCLUSIONS OF LAW

1. The Postal Service is an employer subject to the Board's jurisdiction by virtue of section 1209 of the Postal Reorganization Act.

2. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act.

3. The Respondent Union violated Section 8(b)(1)(A) of the Act by preventing William Huber and Bert C. Franklin from resigning their union membership upon their clearly communicated request.

4. The Respondent Union and the Respondent Em- ployer did not violate the Act in any other respect.

5. The unfair labor practice found in paragraph 3, above, is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act.

THE REMEDY Having found that Respondent Union had engaged in certain unfair labor practices it shall be recommended that it be ordered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act. [Recommended Order omitted from publication.] * U S GOVERNMENT PRINTING OFFICE 1989- 1 9 2 - 3 4 4 0