Food and Commercial Workers Local 648 (Safeway, Inc.)

National Labor Relations Board - Board Decisions

Aug 7, 2006

347 N.L.R.B. 868 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 83
868
United Food and Commercial Workers Union, Local
648, United Food and Commercial Workers In-
ternational Union1 (Safeway, Inc.) and Cynthia
Schaer. Case 20–CB–11846–1
August 7, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On September 16, 2003, Administrative Law Judge
James M. Kennedy issued the attached decision. The
Respondent Union filed exceptions and a supporting
brief, the General Counsel filed an answering brief to the
Respondent’s exceptions, and the Respondent filed a
reply brief.
The National Labor Relations Board has delegated 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,2 and conclusions
only to the extent consistent with this Decision and Or-
der, and to adopt the recommended Order as modified
and set forth in full below.
The judge found, and we agree, that the Respondent
Union violated Section 8(b)(1)(A) and 8(b)(2) of the Act
by causing the Employer, Safeway, Inc., to discharge
Charging Party Cynthia Schaer on October 11, 2002,3
without having informed her of her rights under NLRB v.
General Motors Corp., 373 U.S. 734 (1963), and Com-
munications Workers v. Beck, 487 U.S. 735 (1988),4 and

1 We have amended the caption to reflect the disaffiliation of the
United Food & Commercial Workers International Union from the
AFL–CIO, effective July 29, 2005.
2 The Respondent Union has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 All subsequent dates are in 2002.
4 See NLRB v. General Motors Corp., supra, 373 U.S. 734 (employ-
ees who work under a union-security agreement have the right to be-
come or remain nonmembers, subject only to the duty to pay initiation
fees and periodic dues); Communications Workers v. Beck, supra, 487
U.S. 735, 745 (Sec. 8(a)(3) does not permit a union, over the objections
of dues-paying nonmember employees, to expend funds collected under
a union-security agreement on activities unrelated to “representational
activities,” i.e., collective bargaining, contract administration, and
grievance adjustment); Paperworkers Local 1033 (Weyerhaeuser Paper
Co.), 320 NLRB 349 (1988), reversed on other grounds sub nom.
Buzenius v. NLRB, 124 F.3d 788 (6th Cir. 1997), judgment vacated and
remanded sub nom. Paperworkers v. Buzenius, 525 U.S. 878 (1988)
(unit employees, both union members and nonmembers, must receive
notice of their General Motors rights if they did not receive such notice
when they entered the bargaining unit).
without having provided her with a specific tabulation
of the amount of dues and fees she owed and the
method used to calculate this amount, as required un-
der Philadelphia Sheraton Corp., 136 NLRB 888
(1962), enfd. 320 F.2d 254 (3d Cir. 1963). However,
we reverse the judge’s further findings that the Re-
spondent earlier independently violated Section
8(b)(1)(A) by failing to inform Schaer of her General
Motors and Beck rights when the Union presented her
with membership documents on April 30.5 In our
view, to find these unalleged violations, as the judge
did here, would, under the circumstances of this case,
raise serious due process concerns.
The judge based his finding of the Section
8(b)(1)(A) violation relating to the Respondent’s April
30 conduct in large part on the undisputed testimony of
Charging Party Schaer, who started work in the bar-
gaining unit represented by the Union at Safeway on
February 22. Schaer stated that, after learning that she
had to join the Union, she went to the Respondent’s
headquarters on April 30. There, Schaer spoke to a
woman identified in the record as “Elsa,” and signed a
membership application. The judge found, inter alia,
that
[a]lthough Elsa did not testify, there is no disagree-
ment that during this transaction [ ] neither Elsa nor
anyone else from the Union informed Schaer that . . .
she could whittle [her membership obligations] down
to a “financial core” [as described in General Mo-
tors, supra] or told her that she was entitled [under
Beck, supra] to know what the non-representational
portion of the dues and fees were, so she could de-
cline to pay them.
The judge found that the Respondent’s “active effort
to conceal from Schaer her right to General Motors
and Beck information” tolled the limitations period,
and that the Respondent’s failure to inform Schaer of
information concerning reduced dues and fees under
General Motors, supra, and Beck, supra, violated Sec-
tion 8(b)(1)(A).
As noted above, we reverse the judge. In our view,
the General Counsel made a deliberate choice not to
place the lawfulness of the April conduct at issue in
this proceeding. The General Counsel did not allege in
the complaint that the Union’s April 30 conduct was
unlawful, nor did he amend the complaint at the hear-
ing to make such an allegation or argue in his brief to

5 For the separate reasons set forth in his concurring opinion,
Member Walsh agrees with his colleagues’ reversal of the judge’s
independent 8(b)(1)(A) finding, but finds it unnecessary to pass on
their rationale for doing so.
FOOD & COMMERCIAL WORKERS LOCAL 648 (SAFEWAY, INC.) 869
the judge that such a violation should be found. It is only
in his brief to the Board that the General Counsel argues
that the judge correctly found this 8(b)(1)(A) violation.
In light of the above, we find that the judge erred in
passing on and finding that the April 30 encounter be-
tween Schaer and Elsa violated the Act. For whatever
reason, the General Counsel decided not to pursue the
issue of whether the Respondent’s conduct on that date
was unlawful. Indeed, his failure to do so may explain
why the Respondent did not call Elsa or other witnesses
to testify about the encounter. In sum, the General
Counsel’s presentation of the case in the complaint, at
the hearing, and in his brief to the judge failed to place
the Respondent on notice that the lawfulness of its con-
duct on April 30 would be the basis for a separate finding
of a violation. To find an unfair labor practice in these
circumstances raises serious due process concerns. In-
stead, in disagreement with the judge, we decline to find
an unfair labor practice based on the Respondent’s April
30 conduct.6
As a remedial matter, the judge required that the Re-
spondent Union provide Schaer with a breakdown of
dues and fees, i.e., delineating representational versus
nonrepresentational expenses. We disagree. Although
Board law requires that employees be told of their Gen-
eral Motors and Beck rights at the time when they are
told of their union-security obligations, current Board
law does not require that the above-mentioned kind of
breakdown be given at that juncture. Teamsters Local
166 (Dyncorp Support Services), 327 NLRB 950, 952
(1999), revd. in relevant part Penrod v. NLRB, 203 F.3d
41 (D.C. Cir. 2000). No party seeks to reverse that
Board law, and the General Counsel does not allege a
violation in this regard. Accordingly, in order to tailor
the remedy to the violation, we will not impose that rem-
edy.7
ORDER
The National Labor Relations Board orders that the
Respondent, United Food and Commercial Workers Un-
ion, Local 648, United Food and Commercial Workers
International Union, San Francisco, California, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Attempting to cause and causing Safeway, Inc. to
terminate the employment of Cynthia Schaer, or any

6 Accordingly, we do not pass on the judge’s conclusion that finding
a violation is not barred by Sec. 10(b).
7 Since neither party seeks to reverse Board law, Member Schaum-
ber agrees with his colleagues not to revisit it. He does not, however,
necessarily disagree with the kind of remedy the judge ordered and, in
light of the D.C. Circuit’s decision in Penrod, he would revisit Board
law in the appropriate case.
other employee, for failing to pay union dues and fees
pursuant to a union-security clause without first notify-
ing them of their rights to remain nonmembers under
NLRB v. General Motors Corp., 373 U.S. 734 (1963),
and, as nonmembers under Communications Workers
v. Beck, 487 U.S. 735 (1988), to object to paying for
activities not germane to the Union’s duties as bargain-
ing agent, and to obtain a reduction in fees for such
activities, with sufficient information to enable them to
intelligently decide whether to object, as well as a de-
scription of any internal union procedures for filing
objections, and without advising them of the amount of
the dues delinquency (showing the calculation), and
affording them a reasonable opportunity to pay the
amounts owed.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the purposes of the Act.
(a) Make Cynthia Schaer whole for any loss of
wages or other rights and benefits she may have suf-
fered as the result of the Respondent’s unlawful con-
duct, with interest.
(b) Notify Safeway, Inc. in writing, with a copy to
Cynthia Schaer, that it has no objection to her em-
ployment, and that it requests that she be reinstated.
(c) Notify Cynthia Schaer in writing that it will not
request or cause Safeway, Inc. to discharge her for
nonpayment of dues without first having notified her
of her rights to remain a nonmember under NLRB v.
General Motors Corp., 373 U.S. 734 (1963), and, as a
nonmember under Communications Workers v. Beck,
487 U.S. 735 (1988), to object to paying for union ac-
tivities not germane to the Union’s duties as bargaining
agent, and to obtain a reduction in dues and fees for
such activities, with sufficient information to enable
her to intelligently decide whether to object, as well as
a description of any internal union procedures for fil-
ing objections, and without advising her of the amount
of her delinquency (showing the calculation) or afford-
ing her a reasonable opportunity to pay the sum owed.
(d) Within 14 days of the date of this Order, remove
from its files, and ask Safeway, Inc. to remove from its
files, any reference to the discharge of Cynthia Schaer,
and within 3 days thereafter notify Cynthia Schaer in
writing that it has been done and that it will not use the
discharge against her in any way.
(e) Within 14 days after service by the Region, post
at its business office and meeting hall copies of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD870
attached notice marked “Appendix.”8 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 20, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(f) Within 14 days after service of the Region, deliver
to the Regional Director for Region 20 signed copies of
the notice in sufficient numbers to be posted by Safeway,
Inc. in all places where notices to employees are custom-
arily posted, if it is willing.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
MEMBER WALSH, concurring.
I agree with my colleagues’ adoption of the judge’s
finding that the Respondent unlawfully caused the Em-
ployer to discharge Charging Party Cynthia Schaer in
violation of Section 8(b)(1)(A) and (2) of the Act. And
while I also agree with my colleagues’ reversal of the
judge’s finding that the Respondent earlier independently
violated Section 8(b)(1)(A) by failing to inform Schaer
of her General Motors1 and Beck2 rights (hereinafter, her
rights) when she applied for union membership, I find it
unnecessary to pass on their rationale for doing so.
Rather, I find, fundamentally and contrary to the judge,
that Section 10(b) of the Act bars any allegation that the
Respondent independently violated Section 8(b)(1)(A)
by failing to inform Schaer of her rights.
A.
On April 30, 2002,3 Schaer filled out a union member-
ship application at the Respondent’s office, in compli-
ance with the union-security provisions of the operative
collective-bargaining agreement. Elsa, the Respondent’s
office worker who took Schaer’s application, did not tell
Schaer that in lieu of becoming a member of the Union,
she could satisfy her obligation under the collective-
bargaining agreement by becoming a dues-paying non-

8 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 NLRB v. General Motors Corp., 373 U.S. 734 (1963).
2 Communication Workers v. Beck, 487 U.S. 735 (1988).
3 All dates are 2002 unless otherwise stated.
member employee and paying the Union only the “fi-
nancial core” amount equivalent to initiation fees and
dues,4 and that as a dues-paying nonmember she could
get her dues and fees reduced in proportion to that por-
tion of the Union’s overall expenses that are attribut-
able to its collective bargaining, contract administra-
tion, and grievance adjustment activities.5
On November 26, about 7 months after the Respon-
dent failed to inform her of her rights when she joined
the Union (and about a month and a half after the Re-
spondent caused the Employer to discharge her),
Schaer filed unfair labor practice charges, alleging,
inter alia, that the Respondent violated Section
8(b)(1)(A) by failing to inform her of her rights. Ulti-
mately, however, the General Counsel did not include
that particular charge as an unfair labor practice allega-
tion in the instant complaint.
B.
Section 10(b) of the Act provides in pertinent part
that no complaint shall issue based upon any unfair
labor practice occurring more than 6 months prior to
the filing of the charge with the Board. Here, the April
30 alleged unfair labor practice in question—failing to
inform Schaer of her rights—occurred more than 6
months prior to Schaer’s November 26 filing of
charges with the Board. It is, however, well settled
that the 10(b) period of limitations does not begin to
run on an alleged unfair labor practice until the person
adversely affected by it is put on actual or constructive
notice of the act constituting the unfair labor practice.6
Here, the act constituting the asserted unfair labor
practice was Elsa’s April 30 failure to inform Schaer
of her rights. Schaer was a witness to Elsa’s act and
was thus put on actual notice of it at the time Elsa
committed it.
In nevertheless determining that Section 10(b) does
not preclude a finding that the Respondent’s failure to
inform Schaer of her rights violated Section
8(b)(1)(A), the judge appears to conflate (1) the as-
serted unfair labor practice itself (failure to inform
Schaer of her rights), with (2) an asserted attempt by
the Respondent to conceal the commission of this as-
serted unfair labor practice. In other words, the judge
seems to mix up (1) the Respondent’s arguably unlaw-
ful failure to inform Schaer of her rights, with (2) an
asserted attempt by the Respondent, through that same

4 NLRB v. General Motors Corp., supra.
5 Communication Workers v. Beck, supra.
6 See, e.g., Fiber Products, 314 NLRB 1169 fn. 2 (1994), enfd.
sub nom. FPC Moldings, Inc. v. NLRB, 64 F.3d 935 (4th Cir. 1995);
Desks, Inc., 295 NLRB 1, 11 (1989); Truck & Dock Services, 272
NLRB 592, 593 (1984).
FOOD & COMMERCIAL WORKERS LOCAL 648 (SAFEWAY, INC.) 871
failure to inform Schaer, to conceal the fact that it failed
to so inform her. In this regard, the judge found that the
Respondent defrauded and deceived Schaer by making
an active effort to conceal her rights from her when she
applied for union membership on April 30. Intent, how-
ever, is not an element of this alleged unfair labor prac-
tice: a failure to inform an employee of her rights, with-
out more, completes the violation.
In any event, there is no evidence that Elsa herself or
the Respondent defrauded or deceived Schaer, or actively
sought to conceal her rights from her. For all that the
record in this case shows, Elsa’s failure to inform Schaer
of her rights on April 30 was no more than negligence.
Negligence would, of course, still be enough to establish
the violation, but it would not be enough to establish the
intentional deceit and concealment that the judge attrib-
utes to the Respondent so as to toll the running of the
10(b) period of limitations.7
In support of his finding that the Respondent’s conduct
on April 30 tolled the running of the 10(b) period of limi-
tations and thus legitimized the otherwise untimely No-
vember 26 unfair labor practice charge, the judge cites
Burgess Construction8 and Frontier Hotel & Casino.9
These cases are inapposite.
In Burgess Construction, the Board found that the
10(b) period was tolled because the employer fraudu-
lently and deceitfully concealed its unlawful employment
of nonunion carpenters from the union by assuring the
union on two occasions that it would no longer employ
carpenters. The record in the instant case, by contrast,
does not show any such lies or fraudulent concealment.10
In Frontier Hotel & Casino, the Board found that the
10(b) period was tolled because the employer surrepti-
tiously implemented unlawful changes in terms and con-
ditions of employment. The record in the instant case, by
contrast, does not establish any such surreptitious con-
duct.

7 It is worth noting that the record establishes that at some point (but
not exactly when) the Respondent revised its membership application
form to include a statement of Beck rights on the reverse side. But that
was not the version of the application form that was given to Schaer on
April 30.
8 227 NLRB 765 (1977), enfd. 596 F.2d 378 (9th Cir. 1979), cert.
denied 444 U.S. 940 (1979).
9 318 NLRB 857, 861, 876–877 (1995), enfd. in part sub nom. Unbe-
lievable, Inc. v. NLRB, 118 F.3d 795 (D.C. Cir. 1997).
10 As indicated, the Board in Burgess Construction applied the equi-
table doctrine of fraudulent concealment. The Board has held that three
critical elements must be present in order to toll the 10(b) limitations
period under the doctrine of fraudulent concealment: (1) deliberate
concealment has occurred; (2) material facts were the object of con-
cealment; and (3) the injured party was ignorant of those facts. E.g.,
Benfield Electric Co., 331 NLRB 590, 591 (2000). The critical first
element has not been established here, because there is no showing that
the Respondent deliberately concealed anything.
The Respondent has established its 10(b) defense,
and reversal of the judge’s 8(b)(1)(A) finding on this
issue is fully warranted on that basis.
APPENDIX
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your
benefit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT request or cause Safeway, Inc. to dis-
charge Cynthia Schaer, or any other employee, be-
cause of their failure to pay union dues, without first
having notified them of their rights to remain non-
members under NLRB v. General Motors Corp., 373
U.S. 734 (1963), and, as nonmembers under Commu-
nications Workers v. Beck, 487 U.S. 735 (1988), to
object to paying for union activities not germane to the
union’s duties as bargaining agent, and to obtain a re-
duction in fees for such activities, with sufficient in-
formation to enable them to intelligently decide
whether to object, as well as a description of any inter-
nal union procedures for filing objections, and without
advising them of the amount of the delinquency (show-
ing the calculation) or affording them a reasonable
opportunity to pay the amount owed.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL make whole Cynthia Schaer for any loss of
wages or other rights and benefits as a result of having
caused her discharge, with interest.
WE WILL notify Safeway, Inc. in writing, with a copy
to Cynthia Schaer, that we have no objection to the
employment of Cynthia Schaer and WE WILL request
that Safeway, Inc. reinstate her.
WE WILL notify Cynthia Schaer that we will not re-
quest or cause Safeway, Inc. to discharge her for non-
payment of dues without first having notified her of
rights under NLRB v. General Motors Corp., 373 U.S.
734 (1963), to be and remain a nonmember, and as a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD872
nonmember under Communications Workers v. Beck,
487 U.S. 735 (1988), to object to paying for union activi-
ties not germane to the union’s duties as bargaining
agent, and to obtain a reduction in fees for such activi-
ties, with sufficient information to enable her to decide
intelligently whether to object, as well as a description of
any internal union procedures for filing objections, and
without advising her of the amount of the delinquency or
affording her a reasonable opportunity to pay the amount
owed.
WE WILL, within 14 days from the date of this Order,
expunge from our files, and ask Safeway, Inc. to expunge
from its files, any reference to the discharge of Cynthia
Schaer, and WE WILL within 3 days thereafter, notify her
in writing that we have done so and that we will not use
the discharge against her in any way.
UNITED FOOD AND COMMERCIAL WORKERS
UNION, LOCAL 648, UNITED FOOD AND
COMMERCIAL WORKERS INTERNATIONAL
UNION
Donald R. Rendall, for the General Counsel.
David A. Rosenfeld (Weinberg, Roger & Rosenfeld), of Oak-
land, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in San Francisco, California, on June 3, 2003, upon a
complaint issued by the Regional Director for Region 20 of the
National Labor Relations Board on March 20, 2003. It is based
upon an unfair labor practice charge originally filed on Novem-
ber 26, 20021 (amended on January 23, 2003) by Cynthia
Schaer (Schaer), an individual. The complaint alleges that
United Food & Commercial Workers Union, Local 648, United
Food and Commercial Workers International Union, AFL–CIO
(Respondent, the Union, or Local 648) has engaged in certain
violations of Section 8(b)(1)(A) and (2) of the National Labor
Relations Act (the Act).
Issues
The principal issue is whether Respondent properly notified
Schaer, an employee of Safeway, Inc., of her rights as recog-
nized under the Supreme Court’s decisions in NLRB v. General
Motors, 373 U.S. 734 (1963), and Communications Workers of
America v. Beck, 487 U.S. 735 (1988), and whether, if it failed
to do so, it was privileged to demand her discharge under the
union shop clause of the collective-bargaining contract for fail-
ing to pay the initiation fee and dues. If it was not so privi-
leged, a subsidiary issue is what remedy or remedies should be
applied.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by both the General Counsel and Respondent, I make the fol-

1 All dates are 2002 unless otherwise indicated.
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent admits Safeway, Inc., is a corporation operat-
ing in San Francisco, California where it runs a chain of
retail supermarkets, including one located at 220 Market
Street in that city. It admits Safeway’s annual gross volume
of sales exceeds $500,000 and that it annually purchases
goods valued in excess of $5000 from sources originating
outside California. Accordingly, Respondent admits and I
find that Safeway is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Furthermore, Respondent admits that it is a labor organiza-
tion within the meaning of Section 2(5) of the Act, and I so
find.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent and Safeway are bound to a multiemployer
collective-bargaining contract which was in effect at the time
of the transactions described here. That collective-
bargaining contract contains a union shop clause which re-
quires employees to become union members on or after the
30th day of their employment.
Schaer was hired on February 22 as a trainee but only
worked part-time. Her first assignment was as a personal
shopper for the “dot-com” portion of the Market Street store.
Later, perhaps still in March, she occasionally worked in the
deli section of the store. She was actually transferred to the
deli in May and continued to work part-time until her dis-
charge. For her, part-time amounted to 24 hours per week or
so. The record does not clearly show what her hourly wage
rate was at the deli, although it seems to have been in $8–9
range, given her level of experience.2
Having learned from some source that she had to join the
Union, on April 30, Schaer, went to its office and filled out
an application for membership. There she spoke to a person
identified in the record only as “Elsa.” Elsa is one of the
women who worked at the office and handled membership
applications. Schaer says Elsa told her the initiation fee was
$300. During the process, Schaer told Elsa that she was
having financial difficulties and asked for some easy way of
paying the initiation fee and the dues. She testified that Elsa
told her a payment schedule could be worked out, and one
was. It is in evidence as General Counsel Exhibit 6. Al-
though Elsa did not testify, there is no disagreement that
during this transaction that neither Elsa nor anyone else from
the Union informed Schaer that she could pay a lesser

2 At the time Schaer was hired she was 47 years old. She is well
educated and has a law degree from the Cardozo School of Law in
New York City. She has been admitted to practice in New York, but
not California. Before obtaining employment with Safeway, she had
been working as a security guard for 3 years. She says she has not
been actively practicing law for a number of years. She gave some
peculiar testimony regarding her right to appear in the Northern
California Federal district courts despite lacking a California license,
but it is not germane to the issues presented here. Her life as a law-
yer seems to be far behind her.
FOOD & COMMERCIAL WORKERS LOCAL 648 (SAFEWAY, INC.) 873
amount of dues and fees than what the Union required under its
constitution and by-laws. No one told her she could whittle the
amount owed down to a “financial core” (as described in Gen-
eral Motors, supra) or told her that she was entitled (under
Beck, supra) to know what the nonrepresentational portion of
the dues and fees were, so she could decline to pay them. Nor
is there any written reference to those rights set forth in the
membership application.3
Not aware of any legal right to a reduced initiation fee or
dues, Schaer signed the payment schedule proffered by Elsa.
The schedule required the payment of $326 over a period of 3
months. It required $50 payments on May 9 and 23, June 6 and
20, and July 5 and 18. A last payment of $26 was due on July
25.
Furthermore, it set August 15 as the date of Schaer’s initia-
tion into the Union. In addition, as a condition of acceptance of
the payment schedule, Schaer was obligated by its terms to
“abide by the by-laws and working rules of the Union.” Fi-
nally, it concluded with an acceleration clause stating that fail-
ure to pay per the schedule would result in the entire unpaid
amount becoming due immediately, that the employer would be
informed and that the failure to pay dues and initiation could
result in the termination of her employment.
It is unclear from the evidence what the payments were for.
Specifically, union officials have written on her application
some things regarding the schedule, though Schaer never saw
the writing. The handwritten material and a connected printout
suggest that the initiation is $210 rather than the $300 described
by Elsa to Schaer. The Union’s business agent, Gilberto Men-
doza4 said the initiation fee depends on the employee’s job
classification. Uncertain, he opined that it was $300 for food
clerks. In addition, the handwriting on the application also
refers to dues as being $29 rather than $26, which the last pro-
posed payment suggests. Mendoza said the lowest level of
dues he knew of was $27.50 for a courtesy clerk. What were
the amounts for a part-time personal shopper or a junior deli
clerk? That cannot be determined from the testimony or the
documentary evidence.
Moreover, it is not clear to what month(s) the dues portion
was being allocated. Section 8(a)(3) of the Act bars Respon-
dent from collecting dues for the first 30 days of employment.
Yet, the payment schedule does not show what the monthly
dues allocation was. Respondent did not offer any evidence
about that, although it easily could have called Elsa or provided
a dues ledger card or printouts regarding Schaer. Apparently it

3 The application does contain an obscure reference (in a minuscule,
barely readable, font) to some litigation over the subject of initiation
fees and dues, offering to answer questions about the suit if the appli-
cant had any. At the time the Union presented Schaer with this applica-
tion there was no active litigation in progress (save for, according to
Respondent’s counsel, a 1988 case long stalled in the Court of Appeals
for the Ninth Circuit). Whatever the facts are concerning any supposed
litigation then pending, this obscure paragraph did not provide an ap-
plicant with any breakout of fees and dues allocations, nor did it even
acknowledge that any dues and fee reductions were available.
4 Mendoza was a newly-appointed business agent, having been hired
on June 17. There is no record evidence about his prior experience or
knowledge.
was not interested in demonstrating that it honored the statu-
tory grace period. It is certainly not clear that the payment
schedule was solely aimed at prospective dues from April 30
forward. And, the printout it did provide is almost incom-
prehensible, except for the dates Schaer made payments. It
shows that on May 16 she paid $45, on May 31, $42 and $13
($55), on July 5, $50, and on July 11, $50, for a total of
$200. She made no other payments.
Mendoza became aware of her supposed delinquency
sometime in August or September. He says he tried to reach
her by telephone on as many as five occasions, leaving a
message on her answer machine asking her to return his call.
He says she never did.
About that time, Schaer had come to believe that Safeway
was not providing her with the minimum number of hours
per week required by the collective-bargaining contract for a
part-time employee. The accuracy of her belief is not of
concern here (and was not litigated). She says Mendoza
telephoned her and advised her that she needed to pay the
entire amount in full, since she had not met the requirements
of the payment plan. She says she responded with her com-
plaint about insufficient hours and the connected inability to
pay. She also testified that Mendoza told her he would not
help her with her short-hours complaint until she paid the
money owed to the Union.
Mendoza testified that the short hour’s discussion oc-
curred earlier, perhaps in July or August. He says he told her
he would look into it, and denies saying that he would only
look into that issue once she was paid in full. His testimony
suggests that delinquent dues and fees were not a part of that
discussion.
According to Mendoza when, in September or early Octo-
ber, Schaer had failed to respond to his telephone calls, he
assigned the Union’s service agent, Alan Lawson, to serve
her with a 7-day warning letter at the store. Lawson did so
on Friday, October 4. The letter warned that in the event she
did not pay within 7 days the outstanding amount in full,
which the Union said was $188,5 it would demand that Safe-
way discharge her. Although testimony was presented re-
garding Lawson’s two visits to the store on that day, it is
clear that the letter was delivered. Schaer never paid the
money, nor did she go to the Union’s office before the dead-
line to deal with the issue, although she had told Lawson she
would. Seven days later, on October 12, Safeway discharged
her at the Union’s request.
Approximately 3 weeks after the discharge, Schaer had an
additional conversation with a union official, this time Local
648’s President Mary Chambers. There is some disagree-
ment regarding what was said regarding dues amounts and
reduced rates and plans, but it is unnecessary to resolve it. It
occurred well after the discharge and is irrelevant to any
issue raised by the complaint.

5 The $188 calculation is not explained. Schaer had paid $200 of
the plan’s $326 and the difference is only $126, not $188. A possi-
ble explanation is that additional month’s dues were now being
included. However, there is no record evidence on the point. The
October 4 letter contains no explanation whatsoever.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD874
III. ANALYSIS AND CONCLUSIONS
After the Supreme Court decided Beck, the Board issued two
decisions dealing with the manner in which labor unions were
to manage the requirements imposed by Beck as well as its
interconnection to General Motors. The cases were California
Saw & Knife Works, 320 NLRB 224 (1995),6 and Paperwork-
ers Local 1033 (Weyerhaeuser Paper Co.), 320 NLRB 349
(1988).7 Together, dealing not only with union members and
nonmembers, but with new hires, the two cases require labor
unions under the doctrine of fair representation to inform all of
those employees whom they represent about two matters: First,
the fact that employees may satisfy their union security obliga-
tion by paying only financial core membership levels (under
General Motors) and avoiding full membership as defined by
the union’s constitution. Second, that represented employees
(whether members or not) could object and decline to pay (un-
der Beck) for expenses unrelated to the union’s representational
obligations, e.g., expenditures for political purposes and the
like. In addition, the Board said, for the employee to have suf-
ficient information to intelligently make a Beck-rights decision,
the union had to provide allocation breakdowns so an objector
could knowledgeably challenge the figures provided by the
Union.8 The latter issue is not directly presented in this case,
but is part of the overall scheme which a union must follow to
provide its represented employees information about their legal
rights under a compulsory membership system in order to sat-
isfy its duty of fair representation.
In addition, the Board has long held that a labor union has a
fiduciary responsibility to the employees it represents in the
sense that it must accurately9 advise them of the amount of the
dues delinquency, that his/her job is in jeopardy and give the
employee a reasonable amount of time to pay before demand-

6 Enfd. 133 F.3d 1012 (7th Cir. 1998), cert. den., sub nom. Strang v.
NLRB, 525 U.S. 813 (1998).
7 Revd. on other grounds sub nom. Buzenius v NLRB, 124 F.3d 788
(6th Cir. 1997), judgment below vacated and remanded sub nom. Pa-
perworkers v. Buzenius, 525 U.S. 979 (1998).
8 See Teamsters Local 166 (Dyncorp Support Services), 327 NLRB
950, 952 (1999), remanded enf. denied sub nom. Penrod v. NLRB, 203
F.3d 41 (D.C. Cir. 2000). There, the court of appeals held that the
breakout information should be provided to the applicant at the time
she/he becomes obligated to join the union. The Board has not yet
spoken regarding whether it has accepted the court of appeals’ analysis.
9 It should not need to be said that accurate dues payment records are
always required. The union is a fiduciary in this regard. Accuracy is
the only way to determine whether the statutory grace period has been
met and the only way to determine whether an employee is actually in
arrears. An example of such a failure can be seen in Alcoa Construc-
tion Systems (Millmen’s Union Local 338), 212 NLRB 452 (1974).
The information should also be transparent and shown to the employee
as part of the union’s demand for payment of any dues/fees arrearage.
Identification of the payments’ purpose is certainly required in order to
determine whether moneys are aimed to satisfy the periodic dues re-
quirement of Sec. 8(a)(3) or whether the money is for assessments,
which may not be compelled under a union security clause. NLRB v.
Food Fair Stores, 307 F.2d 3 (3d Cir. 1962). The same is true for fines.
Thermador Div. of Norris Indus., 190 NLRB 479 (1971); Electric Auto-
Lite Co., 92 NLRB 1073 (1951), enfd. 196 F.2d 500 (6th Cir. 1952),
cert. den. 344 U.S. 823 (1952).
ing and effecting the discharge. NLRB v. Hotel, Motel and
Club Employees’ Union Local 568 (Philadelphia Sheraton
Corp.), 320 F.2d 254, 258 (3d Cir. 1963), enfg. 136 NLRB
888 (1962); Conductron Corp., 183 NLRB 419, 426 (1970);
Rocket and Guided Missiles Lodge 946, IAM (Aerojet-
General Corp.), 186 NLRB 561 (1971); Ironworkers Local
378 (Judson Steel), 192 NLRB 1069 (1971); and Boilermak-
ers Local 732 (Triple A Machine Shop), 239 NLRB 504
(1978), and many others.
With respect to the facts presented here, it is clear that at
no time did Respondent ever advise Schaer of her right to
pay anything less than what Elsa told her she would have to
pay. There was no presentation of a General Motors finan-
cial core option or of a reduced rate under Beck. Elsa only
presented Schaer with a single option, payment in full (albeit
under a time payment plan) leading to constitutional mem-
bership. Indeed, her initiation date was even placed on the
payment plan. Clearly Respondent had no interest in provid-
ing her with any information consistent with California Saw
or Weyerhaeuser. It wanted Schaer to be a constitutional
member and did not want to tell her she had any other op-
tions. This, itself, violated its duty of fair representation and
Section 8(b)(1)(A). Specifically, see, L. D. Kichler Co.
(Electrical Workers Local 1377), 335 NLRB 1427 (2001)
(“[W]e agree with the judge that the Union violated Section
8(b)(1)(A) when it solicited Joynt’s membership in the Un-
ion without providing notice of her rights under General
Motors and Beck.”) 335 NLRB 1429.
And, the Board has held that demanding and causing an
employee’s discharge under such a fact pattern is a clear
violation of Section 8(b)(1)(A) and (2). See Production
Workers, Local 707 (Mavo Leasing), 322 NLRB 35 (1996),
enfd. 161 F.3d 1047 (7th Cir. 1998). The reasoning of that
case is very simple. If a union operating under a union secu-
rity clause fails to provide its represented employees with
Beck information, and the employee fails to pay his/her dues
and fees, the union may nevertheless not cause the em-
ployee’s discharge. If it does so, it violates Section
8(b)(1)(A) and (2). That is exactly what happened here. See
also, Teamsters Local 251 (Ryder Student Transportation),
333 NLRB 1009 fn. 3 (2001). Citing Mavo Leasing, the
Board said there: “A union ordinarily may not lawfully seek
to have an employee discharged for failing to pay dues under
a union-security clause when it has not informed the em-
ployee of his or her Beck rights.”
When Schaer failed to pay, Local 648 continued to fail to
treat her in accordance with its duty of fair representation. It
did give her a figure stating the amount due and owing, but
that figure is not clearly explained. It does not show what
amount had been allocated to dues and what had been allo-
cated to initiation. Indeed, if her initiation fee was actually
only $210 (as shown in the handwritten notation and the
printout) rather than the $300 Elsa required, it was not treat-
ing her in a uniform manner and was affirmatively mislead-
ing her from the very beginning. She was entitled, under that
theory, to a $90 credit. Moreover, there is no showing that
the Union did not seek to collect dues from Schaer’s first 30
days of employment. No evidence was offered concerning
FOOD & COMMERCIAL WORKERS LOCAL 648 (SAFEWAY, INC.) 875
what months’ dues had been covered or that the statutory grace
period had been honored.
Thus, the figure given her, the difference between what she
had agreed to pay and what she had actually paid, has not been
demonstrated to be an accurate assessment of even what her
constitutional obligations were. The figure is subject to too
many questions, entirely unanswered by the Union’s record-
keeping. I cannot conclude that Respondent met its Philadel-
phia Sheraton fiduciary duty to accurately provide her with the
correct amount due. On that basis alone the demand to dis-
charge her violated Section 8(b)(1)(A) and (2), even aside from
the Mavo Leasing theory.
The harder question is whether Section 10(b) of the Act may
be used to insulate the Union when it essentially defrauded
Schaer at the time she tried to meet the requirements of the
union shop clause. Respondent, as its second affirmative de-
fense set forth in its answer to the complaint, has asserted that
the complaint is barred by Section 10(b) of the Act because of
the passage of more than 6 months. Curiously, the General
Counsel has made no effort to meet that defense. Even so, the
answer must be a clear “no.” The defense will not lie.
In pertinent part Section 10(b) states:
. . . no complaint shall issue based upon any unfair labor prac-
tice charge occurring more than six months prior to the filing
of the charge with the Board and the service of a copy thereof
upon the person against whom such charge is made. . . .
Schaer applied for membership on April 30. While both the
demand for her discharge and the actual discharge occurred on
October 12, she did not actually file an unfair labor practice
charge until November 26 about 3 weeks after the literal expi-
ration of the 6-month limitations period as it concerned the
Union’s April 30 deception. At the time Schaer applied she
asked Elsa if there were any “alternatives” to paying union dues
and fees. Elsa never told Schaer that there were or that those
that did exist included the General Motors and Beck rights.
Therefore, I find that Respondent’s active effort to conceal
from Schaer her right to General Motors and Beck information
is sufficient to toll the limitations period. Burgess Construc-
tion, 227 NLRB 765 (1977), enfd. 596 F.2d 378, 383 (9th Cir.
1979), cert. den. 444 U.S. 940 (1979). Also, Frontier Hotel,
318 NLRB 857, 876–877 (1995). This is particularly so, where
the information concealed is part of the duty of fair representa-
tion. It was vital information which should have been disclosed
even without Schaer’s request for alternatives. Accordingly, I
find that Local 648 violated Section 8(b)(1)(A) on April 30
when it failed to advise her of information concerning reduced
dues and fees, information which would have satisfied the duty
of fair representation under California Saw and Weyerhaeuser.
Furthermore, I find that the two violations are connected by
union policy. The policy, as it applied to Schaer, was that from
the outset it would not notify her that she had any option other
than to pay the full amount that a constitutional member would
pay (if not more, under this particular time payment plan).
Then, continuing that theme, knowing that a time payment plan
applicant was likely to be in financial straits, the Union would
allow for a payment schedule, whose accuracy was dubious, but
which contained an acceleration clause in the event of nonpay-
ment. In the event of a default, it could simply allow the
acceleration clause to operate, knowing that anyone in full
arrears was unlikely to be able to pay in full, thereby trigger-
ing the discharge. This would allow the Union to start anew
with the next applicant whose payment record might be bet-
ter.
Respondent has violated Section 8(b)(1)(A) and (2) as al-
leged.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Respondent having dis-
criminatorily caused Safeway, Inc., to discharge Schaer, it
will be ordered to notify Safeway, in writing, with a copy to
Schaer, that it has no objection to her employment and that it
affirmatively requests Schaer’s reinstatement. Respondent
shall also be ordered to notify Schaer of her rights under
General Motors and Beck and to inform her that she is not
subject to discharge or suspension for nonpayment of union
dues in the absence of such notification. In addition, Re-
spondent will be ordered to make Schaer whole for any loss
of wages and benefits she may have suffered as a result of its
conduct until she is either reinstated by Safeway to her for-
mer or a substantially equivalent position, or until she ob-
tains substantially equivalent employment elsewhere, less net
interim earnings. Backpay shall be in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).10
Respondent has requested that I note that the treatment
given Schaer is not in accordance with the policies currently
in place designed to apprise employees of their General Mo-
tors and Beck rights. In this regard it has presented Respon-
dent Exhibit 4, said to be the current application form. The
top of the front side of the document contains what might be
characterized as standard information material, such as the
applicant’s name, address, telephone number, etc., together
with a signature line for the employee. It is aimed only at
constitutional membership. There is no reference to any
other kind of membership. The bottom includes a box pre-
printed for installment payments should the applicant need
time to pay. That portion is similar, if not identical, to the
agreement Schaer signed. Nothing on that side of the sheet
touches upon General Motors or Beck rights.
It is on the back side of the sheet that Respondent finally
mentions Beck; it does not mention General Motors at all. I
believe that omission alone is fatal to any contention that the
current system passes muster. But more than that, the mate-
rial is classic in its attempt to bury employee rights in

10 Backpay is an appropriate remedy against a labor union which
has caused a discriminatory discharge, even absent complicity of the
employer. Iron Workers Local 111 (Northern States Steel Builders),
298 NLRB 930 (1990), enfd. 946 F.2d 1264 (7th Cir. 1991). See
also Sheet Metal Workers Local 355 (Zinsco Electrical Products),
254 NLRB 773, (1981), enfd. in pertinent part, remanded in part on
other grounds 716 F.2d 1249 (9th Cir. 1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD876
grayed-out fine print. It is set in a reader unfriendly block of
gray legalese. It is clearly an effort to continue to conceal the
employees’ rights. It is a continuation of the policy which I
cited above: Keep the employees as far from their rights as
possible while giving lip service to the claim that knowledge
about them is readily available; do not offer the information in
a format which can easily be understood as such information
can only be regarded as inimical to the Union’s financial well-
being.
For that reason, I find that the format as expressed in Re-
spondent Exhibit 4 is really only an effort to continue Respon-
dent’s antithetical attitude toward complying with its obliga-
tions under General Motors, Beck, California Saw, and Weyer-
haeuser. Respondent simply will not embrace its obligation to
advise the employees it represents of the rights they have. This
failure is the same as if a fiduciary declined to apprise its client
of important information, such as a right to an inheritance or a
right to medical information about oneself. A remedy would lie
in those situations and one will lie here as well. Accordingly, I
shall give Respondent’s supposed effort no weight and I spe-
cifically reject it as an effort to meet its duty of fair representa-
tion. Respondent must do more.
Therefore, I will recommend a remedy which meets that
duty, to fully inform employees of all dues-connected rights set
forth in the Act. To do otherwise would make the Board com-
plicit, by omission, in denying fundamental information to
employees about their dues-connected rights established by
Congress and the Supreme Court. The remedy will include an
order requiring Respondent affirmatively to provide the infor-
mation to new applicants prior to the applicant being given an
application for full union membership. The information will, in
simple English (or an appropriate foreign language), describe
the various options available to the applicant which will satisfy
the union security requirement of the collective-bargaining
contract, including a statement of rights under Section 19 of
the Act relating to employees holding certain religious con-
victions. The information must be in an easily read format
printed on a separate document which the employee may
keep; Respondent must also give the applicant the opportu-
nity to read the document and understand it before it proffers
a membership application of any kind to the applicant. The
information document will also provide accurate information
regarding the grace period required by Section 8(a)(3) of the
Act, together with the various amounts of money required for
each level of membership, showing breakdowns for initiation
and for monthly dues. It shall further break those amounts
down to show clearly, for purposes of the employee’s intelli-
gent comparison, the full membership amounts, financial
core membership amounts, the nonrepresentational portion,
and the amount which would be due when the nonrepresenta-
tional portion is subtracted from the full membership
amounts. Cf. Penrod v. NLRB, 203 F.3d 41 (D.C. Cir. 2000).
The nonrepresentational amount may be shown as a total, but
the document shall state that upon the employee’s request,
the Union will separately provide figures necessary to meet
the calculation challenge right available under Beck. Re-
spondent may, if it chooses, also include on that document a
list of benefits available to full members but which are not
available to financial core members or Beck members, so
long as the General Motors/Beck rights and connected fig-
ures are not obscured in any way by the additional informa-
tion. It may also accurately explain that the employees’ fail-
ure to meet the financial obligation can result in the appli-
cant’s loss of employment.
Finally, the information document will describe for the
applicant the internal procedures for filing objections to Lo-
cal 648’s calculation of the nonrepresentational amounts.
[Recommended Order omitted from publication.]