Albert Van Luit & Co.

National Labor Relations Board - Board Decisions

May 19, 1977

229 N.L.R.B. 811 (N.L.R.B. 1977)

ALBERT VAN LUIT & CO.
Albert Van Luit & Company and Southern California
Printing Specialties and Paper Products Union,
District Council #2, AFL-CIO. Case 31-CA-
6209
May 19, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On December 29, 1976, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Albert Van Luit
& Company, Los Angeles, California, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This case
was heard before me in Los Angeles, California, on
November 9, 1976. The charge was filed June 15, 1976, by
Southern California Printing Specialties and Paper Pro-
ducts Union, District Council #2, AFL-CIO (hereinafter
called Union). The complaint issued July 26, alleging
violations by Albert Van Luit & Company (hereinafter
called Respondent) of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended.
The parties were permitted at the hearing to introduce
relevant evidence, examine and cross-examine witnesses,
and argue orally. Posthearing briefs were filed by the
General Counsel, Respondent, and Union.
I. ISSUES
The issues are whether Respondent:
' It is concluded that this is an appropnate unit within Sec. 9(b) of the
Act. The certification issued in Case 31-RC-3017.
229 NLRB No. 136
I. Solicited revocations of dues-checkoff authorizations
from its employees in a manner violating Section 8(aXl).
2. Discriminatorily refused to withhold checkoff mon-
eys from the wages of some employees, but not others,
violating Section 8(aX3) and (1).
3. Unilaterally repudiated the checkoff provisions of its
bargaining agreement with the Union, violating Section
8(aX)(5) and (1).
H. JURISDICTION
Respondent is a California corporation, with a plant in
Los Angeles, engaged in the manufacture of wall coverings.
Its annual gross income exceeds $500,000, and it annually
ships products valued in excess of $50,000 directly to
customers outside California.
Respondent is an employer engaged in and affecting
commerce within Section 2(2), (6), and (7) of the Act.
HI. LABOR ORGANIZATION
The Union is a labor organization within Section 2(5) of
the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
Facts: On January 23, 1975, the Union was certified to
represent Respondent's employees in this unit:
All production and maintenance employees, shipping
and receiving employees, warehousemen, and truckdri-
vers employed at the facility located at 4000 Chevy
Chase Drive, Los Angeles, California; excluding all
office clerical employees, designers, professional em-
ployees, guards, and supervisors as defined in the Act.'
On June 29, 1975, Respondent and the Union entered
into a bargaining agreement, effective until June 28, 1977,
covering the employees in the above unit. The agreement
includes a standard 30-day union-security clause, plus a
dues-checkoff provision. The checkoff provision specifies
that checkoff authorizations submitted by employees are to
be irrevocable "for the period of one (1) year from the date
of delivery thereof to the Employer or until termination of
the collective bargaining agreement ... whichever occurs
sooner"; and are to renew automatically thereafter "unless
written notice is given by the employee 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 or of each applicable collective bargaining
agreement . . . whichever occurs sooner." The agreement
further states:
The Employer, upon receipt of signed authorization
from the employee, will deduct the stipulated amount
from the employee's wages, and remit same to the
Specialty Workers Credit Union/Paper Specialties
Federal Credit Union.
811
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 16, 1976, a petition was filed asking that the
NLRB conduct a union-security deauthorization election
among the employees in question.2 An election followed on
May 28, with 76 voting for deauthorization and 58 against.
The Union filed objections to the conduct of the election
on June 2. They were overruled and the election results
certified by the Regional Director on August 31. The
Union's appeal to the Board was denied by order dated
October 5.
On June 10 and 11, 1976, i.e., while the Union's
objections to the election were pending, Respondent's
plant manager, Robert Adams, followed along as pay-
checks were distributed, giving each employee a blank
checkoff revocation form and an explanatory document.
The revocation form stated:
Revocation of Authorization for Payroll
Deductions
Effective as of May 28, 1976, I1 hereby revoke all prior
authorization given by me to Albert Van Luit &
Company to withhold from my pay for dues, fees or
other payments to the Printing Specialties & Paper
Products Union, District Council No. 2.
Date:
(Signature of Employee)
(Print name of Employee)
The explanatory document stated:
To All Bargaining Unit Employees:
Many of you have asked what effect the Union
Deauthorization vote on May 28, 1976, will have on the
withholding of Union dues and fees from your
paychecks. As you know, you voted 76 to 58 to revoke
the Union's authority to require that membership in the
Union be required of all employees.
Our attorneys have advised us that we should
withhold dues and fees for the Month of May, 1976
from your June 11, 1976, checks. We will hold these
fees and dues until it can be determined whether we
must pay them to the Union or whether we can refund
them to you.
The Union has delayed certification of the results of
the Union Deauthorization election by filing Objec-
tions to the Conduct of the Election. Once the election
is certified, we will be in a better position to determine
whether the dues and fees for May must be paid to the
Union or whether we can refund them to you.
In the meantime, our attorneys have advised us that
we should also withhold dues and fees for the month of
June, unless individual employees express their desire
to revoke the check-off "authorization" earlier signed
by them.
Accordingly, if you desire that the Company stop
withholding Union dues and fees from your paychecks,
you may sign and date the attached Revocation and
2 Case 31-UD-89.
give it to your Supervisor or to the payroll department.
You should then contact the Union to determine what
else should be done if you want to resign from the
Union or otherwise terminate your individual obliga-
tion to pay dues and fees.
If you want the Company to continue to withhold
dues and fees, do nothing.
If you want to have the Company stop withholding
dues and fees, sign the attached Revocation and give it
to the Company, or otherwise clearly express your
intention to do so to the Company, preferably in
writing.
While distributing the materials, Adams told each
employee to sign and return the revocation form if he/she
no longer wished to participate in checkoff, and otherwise
to do nothing. It is most unusual, if not unprecedented, for
Adams himself to communicate with and make distribu-
tions to the employees in this manner.
Approximately 106 employees signed, dated, and re-
turned the revocation forms, including about 33 on June 10
and about 54 on June I 1. The record does not disclose the
delivery dates of the authorizations thus revoked.
Respondent's practice had been to withhold checkoff
moneys on the first payday of each month, to cover the
preceding month's dues, promptly remitting to the Union
as prescribed by the agreement. It withheld in the usual
fashion on the June 10-11 payday, covering May dues,
delaying until July to give effect to the revocations
submitted on and after June 10. Rather than promptly
remit the June 10-11 withholdings, however, Respondent
waited until October 1. Remittance of withholdings from
the pay of employees who left their authorizations intact,
covering June, July, August, and September dues, likewise
was delayed, finally being made during the hearing.
Respondent's thinking in delaying tender is suggested by
this extract from a letter of its attorney accompanying the
October I remittance:
Enclosed please find check . . . . This check
represents the Union dues and initiation fees withheld
from bargaining unit employees out of their paychecks
dated June 11, 1976. We are forwarding this sum to you
upon your representation that the dues and initiation
fees withheld from said paychecks were for the
calendar month of May, 1976. ....
The company has continued to deduct dues and fees
from bargaining unit employees after June 11, 1976,
only for such employees who have not revoked the
checkoff authorizations earlier given to the company.
The funds so withheld have been placed into a separate
bank account.
Because the union has taken the position that the
bargaining unit employees may not revoke the checkoff
authorizations until the results of the union deauthori-
zation election were certified, some of the bargaining
unit employees entitled to do so may not have revoked
such authorizations. Accordingly, the company believes
that it should await final determination of the election
812
ALBERT VAN LUIT & CO.
certification issues so that the bargaining unit employ-
ees may have the opportunity to decide whether or not
they individually would like to terminate the checkoff
authorizations, retroactive to the date of the election,
unfettered by the union's assertion that they cannot do
so.
As you know from our earlier correspondence, the
company believes that ... checkoff authorizations are
subject to revocation by the employees even prior to the
certification of the results of the union deauthorization
election. Further, failure of the company to honor such
revocations would violate the Act ...
Discussion: The Board stated in Penn Cork & Closures,
Inc., 156 NLRB 411,414 (1965):
[W]hen there was been an affirmative deauthorization
vote, outstanding checkoff authorizations originally
executed while a union-security provision is in effect
become vulnerable to revocation regardless of their
terms.
The date the union-security provision becomes inoperative,
for this purpose, is not the literal date of the election, but
rather that on which the certification of results issues.
Bedford Can Manufacturing Corp., 162 NLRB 1428, 1432,
fn. 2 (1967); Penn Cork & Closures, Inc., supra at 414;
Monsanto Chemical Company, 147 NLRB 49, 51 (1964);
Andor Company, Inc., 119 NLRB 925, 929 (1957). 3
There is neither contention nor evidence that any of the
precertification revocations in the present case fell during
an "escape period" established by the bargaining agree-
ment. It is concluded, therefore, that those submitted on
and after June 10, and before the certification of results
issued on August 31, were against the agreement and thus
of no legal effect; and that Respondent's repudiation of the
checkoff provisions of the agreement, by honoring those
revocations and by failing to make prompt remittance of
the checkoff moneys it did collect, constituted unilateral
changes violating Section 8(aX5) and (1). Shen-Mar Food
Products, Inc., 221 NLRB 1329 (1976); W. P. Ihrie & Sons,
165 NLRB 167 (1967).
It is further concluded that, by soliciting invalid
revocations, Respondent intruded into the relationship
between the unit employees and their bargaining represen-
tative in a manner independently violative of Section
8(a)(1). Shen-Mar Products, Inc., supra, Hexton Furniture
Company, III NLRB 342 (1955). Such cases as Cyclops
Corporation, Tex-Tube Division, 216 NLRB 857 (1975), and
Perkins Machine Company, 141 NLRB 697 (1963), holding
that the employer did not violate the Act by apprising
employees of their revocation rights under the contract, are
inapposite.
It is concluded, finally, that Respondent discriminated
against its employees in a way that discouraged union
activity, thereby violating Section 8(aX3 ) and (I), by
3 A narrow exception is expressed in Lyons Apparel, Inc., 218 NLRB
1172, 1173 (1975): "We hold that a union may not require a new employee
to join and pay initiation fees and dues during the period between the
affirmative deauthorization vote and the certification of the results of the
election."
4 To any extent that this Order might be deemed in conflict with state
law, that law is preempted. Shen-Mar Products, Inc., 221 NLRB 1329 (1976).
withholding checkoff moneys from some employees but
not from others (those who had submitted the void
revocations) based on a legally invalid classification. Cf.
Atlanta Printing Specialties and Paper Products Union 527,
AFL-CIO (The Mead Corporation), 215 NLRB 237 (1974),
enfd. 523 F.2d 783 (C.A. 5, 1975).
CONCLUSIONS OF LAW
1. By soliciting invalid checkoff revocations from its
employees, as found herein, Respondent violated Section
8(a)(1) of the Act.
2. By not withholding checkoff moneys from employ-
ees who had submitted invalid checkoff authorizations,
while withholding from those who had not, as found
herein, Respondent violated Section 8(aX3) and (1) of the
Act.
3. By unilaterally repudiating the checkoff provisions
of its bargaining agreement with the Union, as found
herein, Respondent violated Section 8(a)(5) and (1) of the
Act.
4. These unfair labor practices affect commerce within
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 4
The Respondent, Albert Van Luit & Company, Los
Angeles, California, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to check off union dues pursuant
to valid checkoff authorizations and to remit same to the
Union pursuant to the collective-bargaining agreement in
effect between the parties.
(b) Soliciting checkoff revocations from its employees at
times when revocations are not permitted either by
contract or operation of law.
(c) Applying the checkoff provision of the agreement in
an unlawfully discriminatory manner.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights protected by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Honor the contract checkoff provisions and the valid
dues-checkoff authorizations filed with it, and remit to the
Union dues it should have checked off pursuant to the
collective-bargaining agreement between the parties, to-
gether with interest at 6 percent per annum.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
records necessary to analyze the amount due under the
terms of this Order.
All outstanding motions inconsistent with this recommended Order hereby
are denied. In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board. the
findings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
813
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its place of business at 4000 Chevy Chase
Drive, Los Angeles, California, copies of the attached
notice marked "Appendix." 5 Copies of said notice, on
forms provided by the Regional Director for Region 31,
after being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
5 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals. the words in the notice reading "Posted by Order
of the National 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to check off union dues
pursuant to valid checkoff authorizations and to remit
same to the Union pursuant to our collective-bargain-
ing agreement.
WE WILL NOT solicit checkoff revocations from our
employees at times when revocations are not permitted
either by contract or operation of law.
WE WILL NOT apply the checkoff provision of our
agreement with the Union in an unlawfully discrimina-
tory manner.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights protected by Section 7 of the Act.
WE WILL honor the contract checkoff provisions and
the valid dues checkoff authorizations filed with us, and
remit to the Union dues we should have checked off
pursuant to our collective-bargaining agreement, to-
gether with interest at 6 percent per annum.
ALBERT VAN Lurr &
COMPANY
814