Food and Commercial Workers (Safeway)

National Labor Relations Board - Administrative Judge Opinions

Sep 16, 2003

20-CB-011846 (N.L.R.B. Sep. 16, 2003)

JD(SF)–63–03
San Francisco, Calif.
UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

BRANCH OFFICE

SAN FRANCISCO, CALIFORNIA

UNITED FOOD & COMMERCIAL WORKERS UNION,
LOCAL 648, UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL UNION, AFL–CIO
(SAFEWAY, INC.)
and Case 20-CB-11846-1
CYNTHIA SCHAER, An Individual
Donald R. Rendall, San Francisco, California, for the
General Counsel.
David A. Rosenfeld, of Weinberg, Roger & Rosenfeld,
Oakland, 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 November 26, 2002, 1 (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
§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 recognized 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 failing to pay the initiation
fee and dues. If it was not so privileged, a subsidiary issue is what remedy or remedies should
be applied.
1 All dates are 2002 unless otherwise indicated.
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On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by both the General Counsel and Respondent, I make the
following
Findings of Fact
I. Jurisdiction
Respondent admits Safeway, Inc., is a corporation operating 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 §2(2), (6), and (7) of the Act. Furthermore, Respondent admits that it is a
labor organization within the meaning of §2(5) of the Act, and I so find.
II. Alleged Unfair Labor Practices
Respondent and Safeway are bound to a multi-employer 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 requires employees to become union members on
or after the thirtieth 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 discharge. 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 G.C.Exh. 6.
Although 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 amount of
dues and fees than what the Union required under its constitution and by-laws. No one told her
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 lawyer seems to be far behind her.
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she could whittle the amount owed down to a “financial core” (as described in General Motors,
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 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, May 23, June 6, June 20 and July 5 and
July 18. A last payment of $26 was due on July 25.
Furthermore, it set August 15 as the date of Schaer’s initiation 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.” Finally, it concluded with an
acceleration clause stating that failure 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
Mendoza 4 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 proposed 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 Respondent 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 was not interested in
demonstrating that it honored the statutory 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 incomprehensible, 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.
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 applicant had any. At the time the Union presented Schaer with this application
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
applicant 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.
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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
complaint 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 hours discussion occurred 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 October, 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 Safeway discharge her. Although testimony was
presented regarding 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
deadline 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 disagreement
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.
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 Paperworkers Int’l Union and its 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 obligation 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
(under 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
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 possible explanation is that additional months dues were
now being included. However, there is no record evidence on the point. The October 4 letter
contains no explanation whatsoever.
6 enfd. 133 F.3d 1012 (7th Cir. 1998), cert. den., sub nom. Strang v. NLRB, 525 U.S. 813
(1998).
7 rev’d on other grounds sub nom. Buzenius v NLRB, 124 F.3d 788 (6th Cir. 1997), judgment
below vacated and remanded, sub nom. Paperworkers v. Buzenius, 525 U.S. 979 (1998).
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have sufficient 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 satisfy 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 accurately 9 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 demanding 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 Boilermakers 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 financial 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 membership. Indeed, her initiation date was even
placed on the payment plan. Clearly Respondent had no interest in providing 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 options. This, itself,
violated its duty of fair representation and §8(b)(1)(A). Specifically, see, L. D. Kichler Co.
(Electrical Workers, (IBEW) Local Union 1377), 335 NLRB No. 106 (2001) (“[W]e agree with the
judge that the Union violated Section 8(b)(1)(A) when it solicited Joynt's membership in the
Union without providing notice of her rights under General Motors and Beck.”) Sl. op. at 3
And, the Board has held that demanding and causing an employee’s discharge under
such a fact pattern is a clear violation of §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 security clause fails to provide its
8 See Teamsters Local 166 (Dyncorp Support Services), 327 NLRB 950, 952 (1999),
remanded, enf. den. 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
s/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 Construction Systems,
(Millmen's Union Local No. 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 requirement of §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); The Electric Auto-Lite Co., 92 NLRB
1073 (1951), enfd. 196 F.2d 500 (6th Cir. 1952), cert. den. 344 U.S. 823 (1952).
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represented employees with Beck information, and the employee fails to pay his/her dues and
fees, the union may nevertheless not cause the employee’s discharge. If it does so, it violates
§8(b)(1)(A) and (2). That is exactly what happened here. See also, Teamsters Local 251
(Ryder Student Transportation), 333 NLRB No. 129 (2001), n. 3. 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 employee 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 allocated 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 treating her in a uniform manner and was affirmatively misleading 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 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
Philadelphia Sheraton fiduciary duty to accurately provide her with the correct amount due. On
that basis alone the demand to discharge her violated §8(b)(1)(A) and (2), even aside from the
Mavo Leasing theory.
The harder question is whether §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 defense set forth in its answer to the
complaint, has asserted that the complaint is barred by §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 §10(b) states:
“. . . no complaint shall issue based upon any unfair labor practice 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 expiration 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. Don Burgess
Construction, 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 representation. It was vital
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information which should have been disclosed even without Schaer’s request for alternatives.
Accordingly, I find that Local 648 violated §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
nonpayment. 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 triggering the
discharge. This would allow the Union to start anew with the next applicant whose payment
record might be better.
Respondent has violated §8(b)(1)(A) and (2) as alleged.
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 discriminatorily 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, Respondent 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 former or a substantially equivalent
position, or until she obtains 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 computed 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
Motors and Beck rights. In this regard it has presented R.Exh. 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 preprinted 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.
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 No. 111
(Northern States Steel Builders), 298 NLRB 930 (1990), enfd. 946 F.2d 1264 (7th Cir. 1991).
See also, Sheet Metal Workers' Union 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).
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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 material is classic in its attempt to bury
employee rights in 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 R.Exh. 4 is really only an effort to
continue Respondent’s antithetical attitude toward complying with its obligations under General
Motors, Beck, California Saw and Weyerhaeuser. 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 specifically reject it as an effort to meet its duty of fair representation.
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
complicit, 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 information 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 §19 of the Act relating to employees holding certain
religious convictions. 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
opportunity 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 §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
intelligent comparison, the full membership amounts, financial core membership amounts, the
nonrepresentational portion, and the amount which would be due when the nonrepresentational
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. Respondent 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 figures are not obscured in any way by the additional information. It may also
accurately explain that the employees’ failure to meet the financial obligation can result in the
applicant’s loss of employment.
Finally, the information document will describe for the applicant the internal procedures
for filing objections to Local 648’s calculation of the nonrepresentational amounts.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 11
ORDER
Respondent, United Food & Commercial Workers Union, Local 648, United Food and
Commercial Workers International Union, AFL–CIO, its officers, agents, and representatives,
shall:
1. Cease and desist from
(a) Seeking to obligate any employee, who is subject to a union security clause, to pay
union dues and fees without first informing him or her of their right to pay dues and fees
in an amount covering only representational activities.
(b) Soliciting employees, who are subject to a union security clause, for union membership
without first advising them that they may limit their membership to the payment of
periodic dues and fees uniformly required or that they may pay a reduced amount
covering only representational matters.
(c) Failing to notify bargaining unit employees, when it first seeks to obligate them to pay
fees and dues under a union-security clause, of their right under NLRB v. General
Motors Corp., 373 U.S. 734 (1963), to be and remain nonmembers,
(d) Failing to notify bargaining unit employees, under Communications Workers v. Beck,
487 U.S. 735 (1988), that they can object to paying dues and fees for union activities
that are not germane to the Respondent's duties as bargaining agent and to obtain a
reduction in dues and fees so as not to pay for such activities.
(e) Requesting and causing the termination from employment of Cynthia Schaer, or any
other employee, prior to informing them of their right to pay dues and fees attributable
only to representational activities, and prior to providing the employee with a
demonstrably correct calculation of the amount of any delinquency, and providing the
employee with a reasonable opportunity to pay that amount.
(f) In any like or related manner restraining or coercing employees in the exercise of the
rights guaranteed them by §7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Notify Safeway, Inc., in writing, with a copy to Cynthia Schaer, that it has no objection to
her employment and affirmatively request Safeway to reinstate her.
(b) Advise Cynthia Schaer of her rights under General Motors and Beck and inform her that
she is not subject to discharge for nonpayment of union dues in the absence of such
notification.
(c) Make Cynthia Schaer whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her in the manner set forth in the Remedy section of
this decision.
11 If no exceptions are filed as provided by §102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in §102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
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(d) Whenever an employee seeks to comply with the union security clause of the collective
bargaining agreement, Respondent shall first provide the employee with an information
document separate and apart from the membership application. The information
document shall be in simple language, whether English or a foreign language
appropriate to the employee, and it shall be in a format which can be easily understood.
The document shall describe the various options available to an employee which will
satisfy the requirements of the union security clause of the collective bargaining
agreement. Respondent shall, prior to proffering any membership application, give the
employee an opportunity to read and understand the information in the document. The
information provided shall include:
(1). Accurate information regarding the grace period required under §8(a)(3) of
the Act and a statement of rights under §19 of the Act relating to the union
membership rights of employees holding certain religious convictions.
(2). The amount of money required for each level of membership and shall show
breakdowns for initiation and monthly dues for: (i) full membership; (ii) financial
core membership; (iii) the nonrepresentational portion; and (iv) the amount due
when the nonrepresentational portion is subtracted from the full membership
amount.
(3). A description of the Union’s internal procedures which an employee may use
if he or she chooses to challenge the calculations of nonrepresentational fees
and dues provided by the Union.
(e) Within 14 days from the date of this Order, remove from its files, and ask Safeway, Inc.
to remove from the Employer's files, any reference to Cynthia Schaer’s unlawful
discharge and, within 3 days thereafter, notify Cynthia Schaer in writing that it has done
so and that it will not use the discharge against her in any way.
(f) Preserve and, within 14 days of a request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary to analyze the amount of
backpay due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its office in San Francisco, California,
copies of the attached notice marked "Appendix." 12 Copies of the notice, on forms
provided by the Regional Director for Region 20, after being signed by Respondent's
authorized representative, shall be posted by Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all places where
official notices are customarily posted. Reasonable steps shall be taken by Respondent
to ensure that the notices are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, Respondent has gone out of
business or closed the union office involved in these proceedings, Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current members and
individuals who were members at any time since April 30, 2002.
12 If this 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.”
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(h) Sign and return to the Regional Director sufficient copies of the notice for posting by
Safeway, Inc., if willing, at all places where notices to employees are customarily posted.
(i) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
_____________________
James M. Kennedy
Administrative Law Judge
Dated: September 16, 2003
11

“Appendix”
NOTICE TO MEMBERS and REPRESENTED 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 collectively 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 fail to notify bargaining unit employees, when we first obligate them to pay fees
and dues under a union security clause, of their right to be and remain nonmembers under the
Supreme Court’s decision in NLRB v. General Motors, 373 U.S. 734 (1963), and WE WILL NOT
fail to notify them of their right to object to paying dues and fees for activities that are not
germane to our duties as their bargaining agent and thereby obtain a reduction in dues and fees
for such activities under the Supreme Court’s decision in Communications Workers of America
v. Beck, 487 U.S. 735 (1988).
WE WILL notify Cynthia Schaer in writing of her right under General Motors to be and remain a
nonmember and of her right under Beck as a bargaining unit employee to object to paying for
union activities not germane to our duties as bargaining agent and to thereby obtain a reduction
in dues and fees for such activities. The notice will also include sufficient information to enable
her to intelligently decide whether to object to our calculation, as well as a description of our
internal union procedures for filing objections to our calculation.
WE WILL NOT cause or attempt to cause Safeway, Inc., to discharge Cynthia Schaer or any
other employee for failing to pay union dues and/or initiation fees pursuant to a union security
clause where we have not first notified them of their General Motors and Beck rights, accurately
advised them of the amount of their arrearage (showing them the calculation) or afforded them a
reasonable opportunity to pay the sum actually owed.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights
guaranteed you by §7 of the National Labor Relations Act.
WE WILL notify Safeway, Inc., in writing, with a copy to Cynthia Schaer, that we have no
objection to her employment and WE WILL request Safeway to reinstate her.
WE WILL make Cynthia Schaer whole for any loss of wages or other rights and benefits she
may have suffered, together with interest, as a result of our unlawful conduct.
WE WILL change our procedure with respect to membership solicitation to comply with the
Remedy ordered in the Decision. This means before soliciting membership under a union
security clause WE WILL first provide the applicant with an information document fully
describing the membership options available under Federal law. To assist the applicant to
make an informed decision concerning his or her choice, the information will include cost
comparisons between full membership under our constitution and bylaws and membership for
union security purposes as permitted both by the National Labor Relations Act and case law,
including General Motors and Beck. The information will include a description of our internal
procedures for filing objections to our calculation of the nonrepresentational costs. No applicant
will be presented with a membership application until we have provided him or her with a
reasonable opportunity to understand the choices available.
WE WILL, within 14 days from the date of the Board's Order remove from our files, and ask
Safeway to remove 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 & COMMERCIAL WORKERS UNION,
LOCAL 648, UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL UNION, AFL–CIO
(Labor Organization)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 400, San Francisco, CA 94103-1735
(415) 356-5130, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (415) 356-5139.