N.L.R.B. v. U.S. Postal Service

• Decision Date: 04 September 1987
• Docket Number: AFL-CIO,No. 86-7403,86-7403
• Citation: 827 F.2d 548
• Parties: 126 L.R.R.M. (BNA) 2277, 56 USLW 2204, 107 Lab.Cas. P 10,146 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. U.S. POSTAL SERVICE, Respondent, and American Postal Workers Union,(APWU); National Association of Letter Carriers,(NALC), Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 548

827 F.2d 548

126 L.R.R.M. (BNA) 2277, 56 USLW 2204,

107 Lab.Cas. P 10,146

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. U.S. POSTAL SERVICE, Respondent, and American Postal Workers Union, AFL-CIO (APWU); National

Association of Letter Carriers, AFL-CIO (NALC), Intervenors.

No. 86-7403.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 6, 1987.

Decided Sept. 4, 1987.

C.A.9 1987.

John D. Burgoyne and Mark McCarty, Washington, D.C., for petitioner.

Stephen E. Alpern and Jessie L. Butler, Washington, D.C., for respondent.

Arthur M. Luby, Washington, D.C., for intervenor, American Postal Workers Union.

Keith E. Secular, New York City, for intervenor, National Ass'n of Letter Carriers.

Laurence E. Gold, Washington, D.C., for amicus curiae mail handlers.

On Application for Enforcement of an Order of the National Labor Relations Board.

Before WALLACE, FLETCHER and BRUNETTI, Circuit Judges.

WALLACE, Circuit Judge:

The National Labor Relations Board (Board) applies for enforcement of its order that the United States Postal Service (Postal Service) honor an employee's revocation of his dues-checkoff assignment after he resigns from membership in his union. We have jurisdiction pursuant to 29 U.S.C. Sec. 160(e), and deny enforcement.

I

The Postal Service signed a collective bargaining agreement with the American Postal Workers Union, AFL-CIO (union). The agreement states that the Postal Service "shall deduct and remit to the appropriate Union the regular and periodic Union dues from the pay of employees who are members of such Union" provided that the Postal Service has received a written assignment from each employee.

Dalton is an employee of the Postal Service and was a member of the union. In October 1982, Dalton executed and delivered an authorization and assignment (Authorization) which read as follows:

AUTHORIZATION FOR DEDUCTION OF UNION DUES

UNITED STATES POSTAL SERVICE

I hereby assign to [the Union] 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 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. I authorize 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 of one (1) year from the date of delivery hereof to you, 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, 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 (1) 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.

By letter dated January 25, 1985, Dalton resigned his membership in the union. Three days later, Dalton notified the Postal Service of his revocation of the Authorization. The Postal Service advised Dalton that it would not honor his revocation because it was not made during the 10-day period designated for revocation in the Authorization.

Dalton filed a charge with the Board. As a result, the General Counsel of the Board issued a complaint against the Postal Service alleging unfair labor practices in violation of sections 8(a)(1) and (2) of the National Labor Relations Act (NLRA), 29 U.S.C. Secs. 158(a)(1) & (2). The Board has jurisdiction pursuant to 39 U.S.C. Sec. 1209(b) and 29 U.S.C. Sec. 160(c). The parties agreed to waive a hearing before an administrative law judge and moved to transfer the case directly to the Board for a decision on stipulated facts. The Board granted this motion as well as a motion to intervene brought by the union and the National Association of Letter Carriers (intervenors).

The Board considered the effect of section 1205 of the Postal Reorganization Act (Postal Act), 39 U.S.C. Sec. 1205, which requires the Postal Service to honor an employee's assignment of his wages to pay for periodic union dues. The Board held that the Postal Act "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." (emphasis in original). The Board therefore applied what it called "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." The Board found that the Authorization signed by Dalton provided for "the payment of dues as a quid pro quo for union membership." Therefore, the Board found that Dalton's assignment of wages was revoked when he resigned from the union, and that the Postal Service violated section 8(a)(1) and (2) of the NLRA by refusing to honor the revocation. The Board ordered the Postal Service to honor the revocation, to refund the dues unlawfully collected from Dalton, and to post an appropriate notice.

The Board applied to us for enforcement of its order. We granted a motion by the intervenors in the Board proceeding to intervene also in the action before this court. We will enforce the Board's order "if the Board correctly applied the law and if its findings of fact are supported by substantial evidence in the record viewed as a whole." NLRB v. Southern California Edison Co., 646 F.2d 1352, 1362 (9th Cir.1981) (Edison ).

II

Our review requires us to interpret section 1205(a) of the Postal Act, which provides:

When a labor organization holds exclusive recognition, ... the Postal Service shall deduct the regular and periodic dues of the organization from the pay of all members of the organization in the unit of recognition if the Post Office Department or the Postal Service has received from each employee, on whose account such deductions are made, a written assignment which shall be irrevocable for a period of not more than one year.

39 U.S.C. Sec. 1205(a). The Board and the Postal Service offer different interpretations of this provision. We must, therefore, first determine whether we should defer to either of these two interpretations.

When reviewing action by an administrative agency, Congress has commanded generally that "the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." 5 U.S.C. Sec. 706. Nevertheless, we recognize the "venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969); accord NLRB v. Hearst Publications Inc., 322 U.S. 111, 130, 64 S.Ct. 851, 860, 88 L.Ed. 1170 (1944); Edison, 646 F.2d at 1362. Congress did not state which agency was to be responsible for administering the provisions of section 1205(a). However, the Postal Service points out that the Postal Act is the statute that created the Postal Service and contends that it is charged with administering the provisions of the Act. The Postal Service concludes, therefore, that we should accord deference to its construction of provisions of the Postal Act.

We agree that Congress has charged the Postal Service with administering many or most sections of the Postal Act. Examples include the provisions concerning nonmailable materials, 39 U.S.C. Sec. 3001, fictitious addresses, 39 U.S.C. Sec. 3003, and false representations, 39 U.S.C. Sec. 3005. These statutes regulate matters within the Postal Service's expertise and we would undoubtedly defer to the Postal Service's construction of them. We do not believe, however, that Congress intended for the Postal Service to administer section 1205 as it affects this case. Congress did not delegate to the Postal Service the responsibility for administering all the provisions of the Postal Act. For example, 39 U.S.C. Sec. 1202 gives to the Board, not the Postal Service, the duty of determining the scope of appropriate collective bargaining units in the Postal Service. Similarly, 39 U.S.C. Sec. 1204 places postal union elections in the hands of the Board.

The touchstone for determining whether Congress implicitly delegated authority over a statutory provision to an agency is not, therefore, whether the agency and the provision creating it were enacted on the same day. Far more relevant is whether the agency has expertise and experience with the subject matter of the provision. See NLRB v. Best Products Co., 765 F.2d 903, 908 (9th Cir.1985) ("we give considerable deference to the NLRB's expertise in construing and applying the labor laws"). That Congress delegates to specialized agencies matters within the agency's specialized knowledge is a truism. A court's deference to an agency's interpretation of a statute is the "[d]eference of generalists for the views of specialists." 5 K. Davis, Administrative Law Treatise Sec. 29:16, at 400 (1984).

The Board, not the Postal Service, is the agency specializing in labor-management relations. "The function of striking [a] balance [that will] effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board." NLRB v. Truck Drivers Local Union No. 499, 353 U.S. 87, 96, 77 S.Ct. 643, 648, 1 L.Ed.2d 676 (1957); accord International Alliance of Theatrical Stage Employees v. NLRB, 779 F.2d 552, 555 (9th Cir.1985) (...