N.L.R.B. v. Atlanta Printing Specialties and Paper Products Union 527, AFL-CIO, AFL-CI

Decision Date20 November 1975
Docket NumberAFL-CI,No. 75-1566,R,75-1566
Citation523 F.2d 783
Parties90 L.R.R.M. (BNA) 3121, 78 Lab.Cas. P 11,192 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ATLANTA PRINTING SPECIALTIES AND PAPER PRODUCTS UNION 527,espondent.
CourtU.S. Court of Appeals — Fifth Circuit

Elliott Moore, Deputy Assoc. Gen. Counsel, John D. Burgoyne, N.L.R.B., Washington, D.C., Walter C. Philips, Director, Region 10, N.L.R.B., Atlanta, Ga., for petitioner.

J. R. Goldthwaite, Jr., Atlanta, Ga., for respondent.

Application for Enforcement of an Order of the National Labor Relations Board (Georgia Case).

Before BELL, THORNBERRY and MORGAN, Circuit Judges.

BELL, Circuit Judge:

The National Labor Relations Board has petitioned this court for enforcement of its order requiring the union to cease and desist from causing an employer not to honor employees' timely revocation of dues checkoff authorizations and ordering the union to reimburse the employees for the improperly withheld dues, plus interest.

Adopting the findings of the Administrative Law Judge, the Board held that even though the union and employer had prematurely extended their collective bargaining agreement to a new expiration date, the employees had a statutory right to revoke their dues checkoff authorizations at the original expiration date of the collective bargaining agreement. Therefore, revocations tendered during the escape period at the original expiration date were timely, and the union's causing the employer not to honor them was an unfair labor practice in violation of Sections 8(b)(1)(A) and (2) of the National Labor Relations Act. 1 We agree and grant enforcement of the Board's order.

I. The Facts

Since 1963 the union and the employer, The Mead Corporation, had entered into a series of collective bargaining agreements, each of which required the company to withhold union dues from wages of employees who had executed proper dues checkoff authorizations. As required by Section 302(c)(4) of the Act, 2 the dues authorization was irrevocable "for a period of one year from the date of its execution or for the duration of the applicable collective bargaining agreement, whichever occurs sooner." The authorization provided for two escape periods within which employees could give notice of revocation one "during the fifteen-day period previous to each anniversary date of this authorization" and the other "during the fifteen-day period preceding the expiration of the applicable collective bargaining agreement." Absent revocation, the authorization was automatically renewed for successive one-year terms.

In 1973, the current collective bargaining agreement was due to expire on November 1. On October 15, seventeen days before its expiration (and two days before the escape period), the parties executed a new collective bargaining agreement which would not expire until 1975. Several employees gave notice of revocation during the 15 days prior to the expiration of the old agreement (October 17-31, 1973). The union caused the company to refuse to honor the revocation notices as untimely, contending that the new collective bargaining agreement was the "applicable" one for determination of the contract expiration escape period. The company has continued to withhold dues from the wages of employees whose revocations were viewed by the union as "untimely." 3

II. The Unfair Labor Practice

Sections 8(b)(1)(A) and (2) of the National Labor Relations Act provide that it is an unfair labor practice for a union to coerce employees in the exercise of their Section 7 right to refrain from union membership, 4 or to cause the company to discriminate against employees in regard to "any term or condition of employment" in order to encourage or discourage union membership. If a union causes the employer to deduct and remit dues after valid revocation by the employee of his dues authorization, it violates Sections 8(b)(1)(A) and (2). Industrial Towel and Uniform Service, 195 N.L.R.B. 1121 (1972), Enforcement denied on other grounds, 6 Cir., 1973, 473 F.2d 1258.

The requirements for a valid dues authorization are found in Section 302(c)(4) of the Act which permits the employer to withhold and remit dues to a union provided that:

the 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 agreement, whichever occurs sooner . . ..

The authorization form used in the instant case tracked the statutory language in providing two chances to revoke dues authorizations, one on the anniversary date of the individual authorization, and one at the expiration of the "applicable" bargaining agreement.

The union concedes that employees have a statutory and contractual right to revoke during the expiration escape period of the "applicable" collective agreement. If the old agreement is "applicable," the employees' revocations were valid and timely, and the union's causing the company to continue to deduct dues violated Sections 8(b)(1)(A) and (2). If the new agreement is "applicable," either standing alone or as an extension of the old agreement, the union has not violated the Act. The question therefore is: which agreement is "applicable"?

III. The "Applicable" Agreement

Principles of contract interpretation.

The union argues that the agreement in effect at the time of notice of revocation should be "applicable." Thus when the employees gave notice, the new agreement was already in effect, and revocation was untimely until the escape period upon expiration in 1975. This argument is contrary to established principles of contract interpretation.

The dues authorization is a contract between the employee and the employer, authorizing the employer to withhold dues from the employee's wages, but reserving to the employee the power of revocation at specified periods. It is elementary that an ambiguity in a contract, assuming an ambiguity arguendo, is to be interpreted in light of the circumstances surrounding the time the contract was made. See 3 Corbin on Contracts § 536 (1960). Because the power of revocation is a subsidiary provision of the dues authorization contract, a fortiori, it must be interpreted in light of circumstances surrounding the time the authorization contract was made. See 1A Corbin on Contracts § 265 (1963).

It is immaterial that the original execution date of each authorization is unknown, since all were renewed at least once yearly, and had therefore either been executed or renewed during the 1970-73 collective bargaining agreement. The legal consequences of renewal are exactly the same as execution of a new authorization. See Monroe Lodge No. 770, I.A.M. v. Litton Business Systems, Inc., 334 F.Supp. 310, 316 (W.D.Va.1971), aff'd, 4 Cir., 1972,80 LRRM 2379. Therefore, since the authorizations, of which the revocation provision is a subsidiary part, were executed or renewed during the 1973 collective bargaining agreement, that agreement is the "applicable" one whose expiration date provides an escape period for revocation.

The continuity of union contracts doctrine.

The union next argues that even if the 1973 collective bargaining agreement is "applicable," under the continuity of union contracts doctrine, the new agreement is but an extension of the old agreement, and the two are merged into one. Since the two are treated as one continuous agreement, the expiration of the "applicable" agreement would not occur until 1975.

The union cites several cases for the proposition that where there is no time lapse between the terms of successive agreements, and union-security clauses thus have unmarred continuity, at least as to union security, the second contract is to be treated as a continuation of the previous one.

International Union, UAW, 142 N.L.R.B. 296, 301 (1963). See Newspaper Guild of Brockton, 201 N.L.R.B. 793 (1973), petition for review denied, 1 Cir., 1974, 493 F.2d 1024; Hershey Chocolate Corp., 140 N.L.R.B. 249 (1961); National Lead Co., 106 N.L.R.B. 545 (1953).

The flaw in the union's argument is its underlying assumption that dues checkoff is a union security device. The cases cited by the union concern maintenance of membership clauses, which are governed by a section of the Act 5 totally removed from the section governing dues checkoff, and which have a totally different purpose and rationale. The purpose of maintenance of membership clauses is to stabilize the collective bargaining process basically, to protect the union. Employees can be discharged for failure to comply with maintenance of membership clauses. 6

The dues checkoff section of the Act, on the other hand, far from being a union security provision, seems designed as a provision for administrative convenience in the collection of union dues. An employee could revoke the dues deduction authorization, and yet continue to pay dues personally. Section 302 generally prohibits payments from employers to unions, in order to prevent corruption, but Subsection (c)(4) makes an exception for dues deductions, provided that the employee gives voluntary written consent. The emphasis is on protection of the employee, not the union.

The Supreme Court has made it clear that union security devices and checkoff arrangements are separate entities, and that the latter are a matter of "individual freedom of decision" for the employee. Felter v. Southern Pacific Co., 1959, 359 U.S. 326, 79 S.Ct. 847, 3 L.Ed.2d 854. In Felter, a case arising under the Railway Labor Act, the Court held that the parties could not require employees to use a special form for revocation of checkoff authorizations.

The Court repeatedly emphasized that the parties could not, by the collective bargaining agreement, restrict the employees' revocation rights:

. . . Congress consciously and deliberately chose to deny carriers and labor organizations authority to reach...

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