Food & Commercial Workers Local 425 (Hudson Foods)

National Labor Relations Board - Board Decisions

Mar 29, 1991

302 N.L.R.B. 346 (N.L.R.B. 1991)

346
302 NLRB No. 54
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 282 NLRB 1413.
2 302 NLRB 322 (1991).
3 See NLRB v. Postal Service, 833 F.2d 1195 (6th Cir. 1987); NLRB v. Post-
al Service, 827 F.2d 548 (9th Cir. 1987).
4 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
5 In Lockheed, the Board left open the question of how its waiver rule would
apply in the context of a lawful union-security provision. Although the parties’
stipulation is silent as to whether the collective-bargaining agreement con-
tained a union-security clause, we note that the Employer’s facility is located
in Arkansas, a right-to-work state. Accordingly, the Lockheed test is applicable
to this case.
6 See 282 NLRB at 1414.
7 On various dates between October 8, 1985, and about April 1, 1986, the
Respondent received letters from these employees requesting resignation from
the Respondent, and discontinuance of the union-dues deductions. Thereafter,
the Respondent accepted these resignations, and the Employer ceased deduct-
ing union dues from the employees’ wages.
United Food & Commercial Workers, Local 425,
AFL–CIO and Hudson Foods, Inc. Case 26–
CB–2259
March 29, 1991
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On February 23, 1987, the Board issued a Decision
and Order in this proceeding1 in which, based on a
stipulated record, it concluded that the Respondent, by
attempting to cause the Employer to withhold dues
from the paychecks of employees who had effectively
resigned union membership, violated Section
8(b)(1)(A) and (2) of the Act. Thereafter, the Board
filed an application for enforcement of its Order with
the United States Court of Appeals for the Eighth Cir-
cuit. On October 8, 1987, the Board moved the court
to remand the matter to the Board for further consider-
ation. The Respondent did not oppose the motion. On
October 27, 1987, the court granted the motion and re-
manded the case to the Board for further consideration.
On March 1, 1988, the Board notified the parties
that it was reconsidering, sua sponte, its decision in the
proceeding and invited the parties to file statements of
position with respect to the issues raised by the recon-
sideration. Thereafter, all parties filed statements of
position.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
We have reconsidered this case in light of the briefs
and the entire record and have decided to affirm the
Board’s previous finding that the Respondent violated
Section 8(b)(1)(A) and (2), for the following reasons.
In Electrical Workers IBEW Local 2088 (Lockheed
Space Operations),2 the Board acknowledged judicial
criticism of the analysis of Machinists Local 2045
(Eagle Signal), 268 NLRB 635 (1984),3 relied on in
the Board’s earlier decision in this case, and set forth
a new test for determining the effect of an employee’s
resignation from union membership on that employee’s
dues-checkoff authorization. The Board in Lockheed
found that an employee may voluntarily agree to con-
tinue paying dues pursuant to a checkoff authorization
even after resignation from union membership. In fash-
ioning a test to determine whether an employee has in
fact agreed to do so, the Board recognized the fun-
damental policies under the Act guaranteeing employ-
ees the right to refrain from belonging to and assisting
a union, as well as the principle set forth by the Su-
preme Court that waiver of such statutory rights must
be clear and unmistakable.4 In order to give full effect
to these fundamental labor policies, the Board stated
that it would:
construe language relating to a checkoff author-
ization’s irrevocability—i.e., language specifying
an irrevocable duration for either 1 year from the
date of the authorization’s execution or on the ex-
piration of the existing collective-bargaining
agreement—as pertaining only to the method by
which dues payments will be made so long as
dues payments are properly owing. We shall not
read it as, by itself, a promise to pay dues beyond
the term in which an employee is liable for dues
on some other basis. Explicit language within the
checkoff authorization clearly setting forth an ob-
ligation to pay dues even in the absence of union
membership will be required to establish that the
employee had bound himself or herself to pay the
dues even after resignation of membership. [Id. at
328–329.]5
Applying the analysis of Lockheed to the stipulated
facts in this case, we find that the Respondent has
failed to show that the dues-checkoff authorizations6
the nine employees here signed obligated them to pay
dues after they effectively resigned union membership.
As in Lockheed, all that employees Mathis, Scroggins,
Johnson, Dora Mae Gillispie, Charles Gillispie,
English, Clark, Brown, and Almond clearly agreed to
do, was to allow certain sums to be deducted from
their wages and remitted to the Respondent for pay-
ment of their ‘‘Union initiation fees and membership
dues’’ or ‘‘membership dues.’’ They did not clearly
agree to have deductions made even after they had
submitted their resignation from union membership.
We find that these partial wage assignments made
by Rhonda Mathis, Jessie L. Scroggins, Lois M. John-
son, Dora Mae Gillispie, Charles Gillispie, Arthur Jean
English, Abraham Clark, Shara A. Brown, and Bill Al-
mond were conditioned on their union membership and
were revoked when they ceased being union mem-
bers.7 The Respondent, however, through the contrac-
tual grievance-arbitration procedure, attempted to cause
the Employer to continue to check off membership
dues of employees after their resignations had been ac-
cepted by the Respondent. We conclude that the Re-
347FOOD & COMMERCIAL WORKERS LOCAL 425 (HUDSON FOODS)
spondent’s attempt to cause the Employer, by virtue of
dues-checkoff authorizations that do not clearly and
explicitly impose any postresignation dues obligations
on the employees, to continue to honor dues-checkoff
authorizations from employees who have resigned
from union membership, violated Section 8(b)(1)(A)
and (2) of the Act.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3.
‘‘3. By attempting to cause the Employer, by virtue
of a dues-checkoff authorization that does not clearly
and explicitly impose any postresignation dues obliga-
tion on the employee, to deduct union membership
dues from the wages of any employee who has re-
signed union membership, the Respondent has violated
Section 8(b)(1)(A) and (2) of the Act.’’
ORDER
The National Labor Relations Board affirms its
original Decision and Order, reported at 282 NLRB
1413, and orders that the Respondent, United Food &
Commercial Workers, Local 425, AFL–CIO, Hope,
Arkansas, its officers, agents, and representatives, shall
take the action set forth as modified below:
1. Substitute the following for paragraph 1(a).
‘‘(a) Attempting to cause the Employer, by virtue of
a dues-checkoff authorization that does not clearly and
explicitly impose any postresignation dues obligation
on the employee, to deduct union membership dues
from the wages of any employee who has resigned
union membership.’’
2. Insert the following as paragraph 2(b) and reletter
the subsequent paragraph.
‘‘(b) Sign and return to the Regional Director suffi-
cient copies of the notice for posting by the Employer,
if willing, at all places where notices to employees are
customarily posted.’’
3. Substitute the attached notice for that of the prior
decision.
APPENDIX
NOTICE TO MEMBERS
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT attempt to cause Hudson Foods, Inc.,
by virtue of a dues-checkoff authorization that does not
clearly and explicitly impose any postresignation dues
obligation on the employee, to deduct union member-
ship dues from the wages of any employee who has
resigned from union membership.
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.
UNITED FOOD & COMMERCIAL WORK-
ERS, LOCAL 425, AFL–CIO