833 F.2d 1195 (6th Cir. 1987), 86-6035, N.L.R.B. v. United States Postal Service

Docket Nº:86-6035.
Citation:833 F.2d 1195
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED STATES POSTAL SERVICE and American Postal Workers Union, Respondents.
Case Date:November 18, 1987
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1195

833 F.2d 1195 (6th Cir. 1987)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

UNITED STATES POSTAL SERVICE and American Postal Workers

Union, Respondents.

No. 86-6035.

United States Court of Appeals, Sixth Circuit

November 18, 1987

Argued Sept. 22, 1987.

Page 1196

Aileen A. Armstrong, Deputy Associate General Counsel, Karen Cordry (argued), N.L.R.B., Washington, D.C., Barbara A. Atkin, John Burgoyne, John F. Ferguson, Emil C. Farkas, Director, N.L.R.B. Cincinnati, Ohio, for petitioner.

Arthur Luby (argued), O'Donnell, Schwartz, Anderson, Washington, D.C., Stephen Alpern (argued), Associate General Counsel, U.S. Postal Service, Washington, D.C., Jesse L. Butler, for respondents.

Before KENNEDY and KRUPANSKY, Circuit Judges, and BROWN, Senior Circuit Judge.

CORNELIA G. KENNEDY, Circuit Judge.

The National Labor Relations Board (the Board) seeks enforcement of its order that the United States Postal Service (the Postal Service) committed an unfair labor practice when it refused to immediately stop deducting dues as requested by the charging parties after they resigned from the American Postal Workers Union (the union). The Postal Service and the union contend that the dues authorization signed by the charging parties is irrevocable for one year. We agree and deny enforcement. 1

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The facts of this case are essentially uncontested. The Postal Service and the union are parties to a collective bargaining agreement, which covered the two charging parties, William Huber and Bert Franklin, postal workers in Cincinnati. The agreement allows the Postal Service to deduct union dues from the salaries of employees, if the employees execute an authorization. Neither membership in the union nor payment of dues may be a requirement of employment in the Postal Service. The authorization form, as allowed by the Postal Reorganization Act, 39 U.S.C. Sec. 1205, provided that the deduction authorization would be irrevocable for one year, and would automatically be renewed for an additional year unless revoked during a ten-day period at the end of each yearly period.

Huber and Franklin executed such an authorization when they joined the union. Later, they sought to resign from the union and, although they were not within the permissible "window," they asked the Postal Service to stop deducting dues from their pay. The Postal Service refused, and the union continued to accept the money thus withheld.

The employees then charged that these acts constituted unfair labor practices, in violation of Section 8(a)(1), 8(a)(3), and 8(b)(1)(A) of the National Labor Relations Act (NLRA). 2 An Administrative Law Judge (ALJ) found that the union had violated the charging parties' rights by refusing to honor their requests to resign from the union, but that neither the Postal Service nor the union had violated the NLRA by continuing to withhold dues. This second aspect of the ALJ's decision was reversed by the Board, which held that "Huber's and Franklin's dues-checkoff authorizations ... were revoked by operation of law when they resigned their union membership." Joint Appendix at 249. The Board did not set forth its reasoning but rather incorporated by reference its discussion in an essentially identical case, Postal Service, 279 N.L.R.B. 8, enforcement denied sub nom. NLRB v. U.S. Postal Service, 827 F.2d 548 (9th Cir.1987) (Dalton ), 3 decided by the Board after the ALJ decided the present case.

Ordinarily, the decisions of the Board are entitled to substantial deference from a reviewing court, which will uphold the Board's interpretation of the Labor Act if its decision is reasonable, see Pattern Makers v. NLRB, 473 U.S. 95, 105 S.Ct. 3064, 87 L.Ed.2d 68 (1985). While in this case the Board's decision rests on its interpretation of the Postal Reorganization Act (PRA), the experience and expertise of the Board extend beyond the NLRA to other statutes involving labor-management relations, and the PRA specifically assigns to the Board some of the responsibilities that the Board exercises under the NLRA, see, e.g., 39 U.S.C. Sec. 1202 (Board to select appropriate bargaining units), 39 U.S.C. Sec. 1204 (Board to conduct elections). But in this case, and the cases on which it relies, the Board has failed to consider the provisions of the PRA. It is difficult to accord deference to the Board's interpretation under these circumstances. 4 As the Supreme Court explained:

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The interpretation put on the statute by the agency charged with administering it is entitled to deference ... but the courts are the final authorities on issues of statutory construction. They must reject administrative constructions of the statute, whether reached by adjudication or by rulemaking, that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement.

Federal Election Comm'n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 31-32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981) (citations omitted). On this basis, the Board's construction of the PRA "cannot withstand scrutiny," Dalton, 827 F.2d at 555 (Fletcher, J., concurring). 5

The Postal Reorganization Act made employee-management relations subject to the provisions of the NLRA "to the extent not inconsistent with provisions of" the Postal law, 39 U.S.C. Sec. 1209. The extent to which any aspect of the NLRA applies to the Postal Service therefore necessarily requires an interpretation of the PRA. It is only if the NLRA provision is consistent with the PRA--for which the language of the PRA, its legislative history, and its underlying policy are the interpretative tools--that the Board's interpretation of the NLRA becomes relevant. Even if it is true, as the Board contends, that Congress wanted labor relations in the Postal Service to become as much like that in private industry as possible, the application of that principle to any particular situation must be sustained by reference to the PRA.

Since the Board referenced Dalton as the basis for its decision here, we turn to what it said there:

the PRA does not mandate that checkoff authorizations are irrevocable per se for 1 year irrespective of the nature of the contractual obligation undertaken by the employee executing the authorization. 3 Thus, the provisions of the PRA are not inconsistent with well-established Board principles recognizing that a dues-checkoff authorization that by its terms makes payment of dues a quid pro quo for union membership is revocable by operation of law upon effective resignation from union membership. Stated otherwise, Section 1205 of the PRA in no way alters or is inconsistent with the notion under the Act that, in determining the obligations of the parties pursuant to the voluntary execution of a dues-checkoff authorization, it is appropriate to focus upon the nature of the obligation actually incurred in the checkoff authorization.

279 N.L.R.B. at 7-8 (emphasis in original).

Footnote 3, indicated in the quotation, reads: "The revocability provisions of the PRA essentially are in line with the revocability provisions of Sec. 302(c)(4) of the [Labor] Act which privilege voluntary dues-checkoff assignments and render them lawful as permissible payments to employee representatives."

In effect, then, the Board in Dalton simply relied on its interpretation of the NLRA, with a footnote explaining that the applicable provisions of the PRA "are essentially in line" with the Labor Act's similar provisions. The Board brushed aside contentions that the differing language of the two laws was of any significance, and that the legislative history indicated any Congressional intention contrary to the Board's view. And it simply assumed that since Congress intended to "privatize" labor relations in the former Post Office, it

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intended the provisions of the PRA to be interpreted identically to similar provisions of the NLRA, despite the great differences in the overall scheme of labor management relations which the PRA embodies. Each of these positions will be examined in turn.

The language of the two laws is similar, but crucially different. Section 302(c)(4) of the NLRA provides that an authorization "shall not be irrevocable for a period of more than one year." 29 U.S.C. Sec. 186(c)(4). The provision allows, but does not require, an authorization to be irrevocable, and it places a maximum on the length of permissible irrevocability. The PRA, in contrast, provides that the Postal Service will deduct dues from the pay of employees who have made "a written assignment which shall be irrevocable for a period of not more than one year." 39 U.S.C. Sec. 1205(a) (emphasis added). 6 On its face, section 1205 requires that any assignment made must be irrevocable for a period up to a year. 7

The Board itself never considered this difference; that in itself may be sufficient to render its decision indefensible. General Counsel says that this "minor difference does not affect the evident thrust of both Sections," Petitioner's Brief at 17, and that "nothing in the legislative history ... warrants a different conclusion.... Because of Section 1205's similarity to Section 302(c)(4) and the absence of any clarifying information, it is reasonable to infer that the draftsman of Section 1205 simply used Section 302(c)(4) as a model and intended Section 1205 to have the same meaning." Id. at 18. There are two things wrong with this analysis. First, the leap from "similarity" to "same" is unjustified; the difference in language is simply ignored. Second, it puts the cart before the horse: "the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980).

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