Food & Commercial Workers Local 455 (Gerland's Food)

National Labor Relations Board - Board Decisions

Mar 29, 1991

302 N.L.R.B. 341 (N.L.R.B. 1991)

341
302 NLRB No. 53
FOOD & COMMERCIAL WORKERS LOCAL 455 (GERLAND’S FOOD)
1 All dates are in 1989 unless otherwise indicated.
2 These employees are Mario Chavarria, V. Jean Dopp, Irene Garcia, Re-
becca Miley, Patricia Musgrove, Johnnie Norman, Novita Reimers, and Betty
J. Wolf. The parties, however, have stipulated that the complaint allegations
pertaining to V. Jean Dopp were resolved on a non-Board basis by the Re-
spondent and the Charging Party and that Region 16 has agreed to that resolu-
tion.
3 Union membership requires persons to pay union dues. Additionally, if a
member ceases the payment of dues for the requisite period of time that per-
son will lose their union membership in accordance with the procedures estab-
lished in the Union’s constitution and bylaws.
4 Art. 3, sec. 3.01 of the parties’ agreement provides:
During the life of this Agreement, the Employer shall deduct initiation
fees and regular dues weekly from employees who individually and vol-
untarily certify in writing on the checkoff-authorization form for such de-
ductions. Such authorizations shall be binding on the employees for the
Continued
United Food and Commercial Workers Local Union
No. 455, AFL–CIO and Gerland’s Food Fair,
Inc.; Gerland’s Food Fair, Inc. d/b/a Gerland’s
Realty, Inc.; Gerland’s Food Pantry, Inc. Case
16–CB–3312
March 29, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
Upon a charge filed by Gerland’s Food Fair, Inc.,
Gerland’s Food Fair, Inc. d/b/a Gerland’s Realty, Inc.,
Gerland’s Food Pantry, Inc., the Employer, on March
30, 1989,1 the General Counsel of the National Labor
Relations Board issued a complaint on May 9, against
United Food and Commercial Workers Local Union
No. 455, AFL–CIO, the Respondent, alleging that the
Respondent violated Section 8(b)(1)(A) and (2) of the
National Labor Relations Act. Copies of the charge
and complaint and notice of hearing were served on
the parties. Thereafter, the Respondent filed an answer
denying the commission of any unfair labor practice.
On November 3, the parties filed a stipulation of
facts and a motion to transfer the case to the Board.
The parties agreed that the stipulation of facts and at-
tached exhibits shall constitute the entire record in this
case, and that no oral testimony is necessary or desired
by any of the parties. The parties further waived a
hearing before an administrative law judge, the
issuance of an administrative law judge’s decision, and
indicated their desire to submit the case directly to the
Board for findings of fact, conclusions of law, and an
Order.
On July 2, 1990, the Board issued its order approv-
ing the stipulation and transferring the proceeding to
the Board. Thereafter, all parties filed briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in the case, the Board makes
the following
FINDINGS OF FACT
I. JURISDICTION
The Employer, a corporation with an office and
place of business in Houston, Texas, is engaged in the
retail sale of groceries and related items. During the 12
months preceding execution of the stipulation of facts,
a representative period, the Employer, in the course
and conduct of its business operations, derived in ex-
cess of $500,000 gross revenue from the sale of gro-
cery and related items, of which amount valued over
$50,000 was purchased and received at its Houston fa-
cilities directly from points outside the State of Texas.
We find that the Employer is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act. We further find that the Respondent is a
labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The issues presented are whether the Respondent
violated Section 8(b)(1)(A) by refusing to honor the re-
quest of seven employees2 to revoke their previously
executed dues-checkoff authorizations after they re-
signed union membership, and violated Section 8(b)(2)
by demanding that the Employer deduct union dues
from the employees’ wages after the employees re-
signed.
A. Facts
The Respondent is the exclusive representative of
the employees in the following appropriate bargaining
unit:
INCLUDED: All employees in the retail stores
owned and operated by the Employer located in
the Texas counties of Harris, Brazoria, Montgom-
ery, Galveston, Fort Bend, Grimes, Waller, and
Chambers.
EXCLUDED: Store managers, two assistant store
managers per store, management trainees, meat
department managers, all meat department em-
ployees working solely and exclusively in the
meat department, office clerical employees who
work separately and apart from the retail grocery
stores, professional employees, guards, watchmen,
and supervisors as defined in the Act.
At all times material, the Employer and the Re-
spondent have maintained in effect and have enforced
a series of collective-bargaining agreements, the most
recent of which was effective by its terms for the pe-
riod February 2, 1987, through June 24, 1990. The
contract does not contain any provision requiring union
membership, but permits employees to have the Em-
ployer deduct initiation fees and regular monthly dues3
from their wages and remit them to the Respondent.4
342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
duration of this Agreement unless the authorization is revoked in accord-
ance with the provisions of the Taft-Hartley Act of 1947, as amended.
No deductions shall be discontinued until the Employer has verified
through the Union that the employee’s request for revocation is timely
and proper. The Union shall certify in writing a list of its new members,
together with signed authorization cards with an itemized list of such ini-
tiation fees and dues to be deducted from such members. The Employer
shall promptly remit all sums deducted in this manner to the Union
monthly. Timing for such deductions may be worked out locally between
the Employer and the Union.
5 The checkoff authorization form executed by all the employees involved,
except Irene Garcia, reads as follows:
I, llllll hereby voluntarily authorize Gerlands, in the State of
Texas, to deduct my initiation fee, and regular monthly dues as duly es-
tablished from time to time by United Food & Commercial Union, Local
No. 455, United Food & Commercial Workers International Union, AFL–
CIO, CLU, from my pay check on the llllll week of each
month in advance, and deliver such initiation fees and dues to the afore-
mentioned Local No. 455.
This authorization shall continue in effect for the term of the contract
between the Employer, and the Union, or one year, whichever occurs
sooner, and shall continue in effect for successive periods of one year un-
less revoked in writing by the undersigned to the Employer and the
Union, within fifteen (15) days prior to the expiration of each term of
one year or prior to the termination of the Agreement, whichever occurs
sooner.
It is understood that the Employer’s responsibility for the performance
of this service is strictly limited to the delivery of such dues and initiation
fees to the UFCW Local Union No. 455.
Signed:lllllllllll Store No. llllk
Address: llllllllllll City llllll
Employee Number: llll Full Time llll Part Time llll
Date llllll Initiation Fee llllllW.D.C. lll Dues
per Month $lll Reinstatement Fee $llll
The checkoff authorization form executed by Garcia reads as follows:
TO: Any Employer Under Contract with United Food & Commercial
Workers Union, Local 455, AFL–CIO
You are hereby authorized and directed to deduct from my wages,
commencing with the next payroll period, all Union dues and initiation
fees as shall be certified by the Secretary-Treasurer of Local 455 of the
United Food & Commercial Workers International Union, AFL–CIO, and
to remit same to said Secretary-Treasurer.
This authorization and assignment shall be irrevocable for a period of
one year from the date of execution or until the termination date of the
agreement between the Employer and Local 455, whichever occurs soon-
er, and from year to year thereafter unless not less than thirty (30) days
and not more than forty five (45) days prior to the end of any subsequent
yearly period I give the Employer and the Union written notice of revoca-
tion bearing my signature thereto.
The Secretary-Treasurer of Local 455 is authorized to deposit this au-
thorization with any Employer under contract with Local 455, and is fur-
ther authorized to transfer this authorization to any other Employer under
contract with Local 455 in the event I should change employment.
ll llll llllllllllll
Date of hire Date Member’s Signature
llllll llllllllllll
Social Security No. Please Print Name
6 According to the Respondent, these requests to revoke dues-checkoff au-
thorizations were untimely because they were not ‘‘made in writing within fif-
teen (15) days prior to the effective date of execution or fifteen (15) days prior
to the termination date of the agreement between the Employer and Local 455,
whichever occur[red] sooner.’’
7 The Respondent, however, did not receive the Employer’s letter concerning
Irene Garcia.
8 On March 21, the Respondent filed a grievance alleging that the Employer
had violated the parties’ collective-bargaining agreement by ceasing dues
checkoff for these employees. The grievance was arbitrated on December 7.
According to the General Counsel’s letter to the Board dated June 12, 1990,
the arbitrator issued his award on December 8 and found that the Employer
has violated sec. 3.01 of the parties’ agreement when it discontinued checkoff
for employees Reimers, Wolf, Norman, Musgrove, Miley, Chavarria, and Gar-
cia. The arbitrator ordered a make-whole remedy plus interest. Thereafter, on
December 28, the Employer filed a complaint for interpleader and declaratory
relief in the United States District Court, Southern District of Texas. On Janu-
ary 24, 1990, the Respondent filed its answer and a counterclaim in this mat-
ter. On February 15, 1990, the Employer filed its answer to the Respondent’s
counterclaim. To date, no other court action has occurred. We note that none
of the parties seek Board deferral of the instant unfair labor practice case to
the arbitrator’s award.
In addition, on April 19, the Respondent filed an unfair labor practice
charge in connection with the Employer’s refusal to deduct these union dues
and remit them to the Respondent. The charge was dismissed by the Regional
Dues-checkoff authorizations, which may be revoked,
are used by the Respondent to collect monthly deduc-
tions from the employees of the Employer. In addition,
expectancy of compliance with the revocation provi-
sions contained in the authorization agreements them-
selves permits the Respondent to project income and
budget expenses.
On the dates set opposite their respective names,
each of the following named employees executed a
checkoff authorization form5 authorizing the Employer
to deduct ‘‘initiation fee(s)’’ and ‘‘regular monthly
dues’’ or ‘‘Union dues’’ from their wages and remit
them to the Respondent:
Mario Chavarria—June 15, 1986
Irene Garcia—August 18, 1987
Rebecca Miley—April 18, 1986
Patricia Musgrove—April 29, 1986
Johnnie Norman—January 21, 1986
Novita Reimers—October 22, 1985
Betty J. Wolf—April 17, 1980
Each of these employees sought to resign union
membership and/or requested that the Respondent and
the Employer cease the previously authorized wage de-
ductions. None of these requests for dues cancellations
were timely under the terms of the dues-checkoff au-
thorization agreements previously executed by the em-
ployees discussed above. The Respondent received
these requests on or about the dates set opposite their
respective names:
Mario Chavarria—March 17
Irene Garcia—March 27
Rebecca Miley—March 1
Patricia Musgrove—March 6
Johnnie Norman—March 1
Novita Reimers—February 25
Betty J. Wolf—February 25
By identical letters transmitted during the period of
February 27 through March 27, the Respondent noti-
fied these employees that their requests for withdrawal
of union membership were accepted, but that the Re-
spondent considered untimely their requests to revoke
their checkoff authorizations untimely.6 Commencing
about March 13, the Respondent was advised that in
light of these revocation requests the Employer was re-
fusing to deduct union dues from the payroll checks of
these employees.7 Since about March 21, the Respond-
ent has demanded, both orally and in writing, that the
Employer continue to deduct union dues from the
wages of these employees and remit the moneys to the
Respondent.8
343FOOD & COMMERCIAL WORKERS LOCAL 455 (GERLAND’S FOOD)
Director, and this dismissal was subsequently upheld on appeal to the General
Counsel.
9 The parties stipulated that no such action would be required because the
parties’ collective-bargaining agreement does not contain any provision man-
dating that employees be a union member and pay union dues.
10 302 NLRB 322 (1991).
11 See NLRB v. Postal Service, 833 F.2d 1195 (6th Cir. 1987); NLRB v.
Postal Service, 827 F.2d 548 (9th Cir. 1987).
12 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
Since about March 27, although acknowledging re-
ceipt of the above requests, the Respondent has refused
to cancel these employees’ checkoff authorizations, but
has granted their requests to resign their union mem-
bership. The Respondent has not requested that the
employment status of any of these employees be af-
fected.9
Thereafter, by letter dated March 29, and without in-
forming the Respondent, the Employer notified the em-
ployees, except Johnnie Norman who was promoted to
management on or about March 27, that it would con-
tinue to deduct dues from their payroll checks, but
place the funds in a special escrow account, and not
turn them over to the Respondent, while the instant
case was being litigated.
B. Contentions of the Parties
The General Counsel offers three alternative theories
on which to base a violation of Section 8(b)(1)(A) and
(2). First, applying the principles of Pattern Makers
League v. NLRB, 473 U.S. 95 (1985), the General
Counsel contends that the Respondent’s refusal to rec-
ognize its members’ revocations of their dues-checkoff
authorizations was an unlawful restriction on their Sec-
tion 7 right to resign union membership. Second, the
General Counsel urges the adoption of the view taken
by former Member Johansen in Postal Service (Dal-
ton), 279 NLRB 40, 42 (1986), enf. denied 827 F.2d
548 (9th Cir. 1987). Under that view, the General
Counsel submits that even if these employees’ requests
to revoke their dues-checkoff authorizations were un-
timely, as claimed by the Respondent, their resigna-
tions from membership, which the Respondent admit-
tedly accepted, reduced their dues obligations to zero.
Thus, according to this theory, the Respondent violated
the Act by attempting to cause the Employer to deduct
from these employees’ paychecks amounts greater than
zero. Finally, the General Counsel contends that the
Respondent’s conduct was unlawful under the ‘‘quid
pro quo’’ analysis of Machinists Local 2045 (Eagle
Signal), 268 NLRB 635, 637 (1984), discussed below.
The Employer contends that the checkoff-authoriza-
tion forms executed by the employees involved were
revoked by operation of law on their resignations from
the Union. Consistent with the General Counsel’s third
alternative theory, the Employer’s argument relies pri-
marily on the ‘‘quid pro quo’’ analysis of Eagle Sig-
nal.
The Respondent defends its action on the basis that
it could lawfully insist on the continued collection of
dues from the Employer because the employees had
untimely requested that their checkoff authorizations
be revoked. In this regard, the Respondent urges that
the Board reject Eagle Signal and instead adopt the
principle that, in the absence of a union-security
clause, a checkoff authorization voluntarily signed by
an employee is irrevocable except according to the
terms of, and at the intervals stated by, the authoriza-
tion agreement itself. In the alternative, if the Board
continues to apply the analysis of Eagle Signal, the
Respondent urges the Board to find that the language
of the checkoff authorizations at issue does not show
that the authorizations themselves made payment of
dues a quid pro quo for union membership. Thus, the
Respondent takes the position that, even applying
Eagle Signal, it acted lawfully in rejecting the employ-
ees’ revocation requests.
C. Discussion
In Electrical Workers IBEW Local 2088 (Lockheed
Space Operations),10 the Board acknowledged judicial
criticism of the Eagle Signal analysis11 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 of 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.12 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
344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 In Lockheed, the Board left open the question of how its waiver rule
would apply in the context of a lawful union-security provision. In the absence
of a union-security clause requiring union membership here, the Lockheed test
is applicable to this case.
14 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
dues even after resignation of membership. [Id. at
328–329.]13
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 authorizations the
seven employees signed obligated them to pay dues
after they effectively resigned union membership. As
in Lockheed, all that the seven employees here clearly
agreed to do was to allow certain sums to be deducted
from their wages and remitted to the Respondent for
payment of their ‘‘initiation fee(s)’’ and ‘‘regular
monthly dues’’ or ‘‘Union dues.’’ They did not clearly
agree to have deductions made even after they had
submitted their resignation from union membership.
We thus find that these partial wage assignments made
by Mario Chavarria, Irene Garcia, Rebecca Miley, Pa-
tricia Musgrove, Johnnie Norman, Novita Reimers, and
Betty J. Wolf were conditioned on their union mem-
bership and were revoked when they ceased being
union members. We therefore find that the Respond-
ent’s refusal to accept these employees’ revocation re-
quests and its repeated demands that the Employer
continue to check off their membership dues, re-
strained and coerced these employees in the exercise of
their Section 7 rights. Accordingly, we find that the
Respondent violated Section 8(b)(1)(A) and (2) of the
Act.
CONCLUSIONS OF LAW
1. By refusing to honor the revocation of dues-
checkoff authorizations previously executed by Mario
Chavarria, Irene Garcia, Rebecca Miley, Patricia
Musgrove, Johnnie Norman, Novita Reimers, and
Betty J. Wolf, after these employees resigned member-
ship in the Union, where the terms of the voluntarily
executed checkoff authorizations did not clearly and
explicitly impose any postresignation dues obligation
on the employees, the Respondent has restrained and
coerced employees in the exercise of their Section 7
rights and has violated Section 8(b)(1)(A) of the Act.
2. By causing and/or attempting to cause the Em-
ployer, 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 union membership, the
Respondent has violated Section 8(b)(2) of the Act.
REMEDY
Having found that the Respondent has engaged in
the unfair labor practices described above, we shall
order it to cease and desist and to take certain affirma-
tive action designed to effectuate the policies of the
Act.
The Respondent must give full force and effect to
the employees’ revocation of their checkoff authoriza-
tions. The Respondent shall also make employees
Chavarria, Garcia, Miley, Musgrove, Norman,
Reimers, and Wolf whole for any moneys deducted
from their wages for the period following their union
membership resignations, except to the extent those
funds were withheld and placed by the Employer in a
special escrow account, with interest to be computed
in the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, United Food And Commercial Workers
Local Union No. 455, AFL–CIO, Houston, Texas, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing to honor any employee’s revocation of
dues-checkoff authorization after the employee has re-
signed membership in the Union, where the terms of
the voluntarily executed checkoff authorization do not
clearly and explicitly impose any postresignation dues
obligation on the employee and where there is no valid
union-security clause in effect.
(b) Causing and/or attempting to cause the Em-
ployer, by virtue of a dues-checkoff authorization that
does not clearly and explicitly impose any
postresignation dues obligation on the employee, to
continue to deduct union membership dues from the
wages of any employee who has resigned union mem-
bership.
(c) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole employees Mario Chavarria, Irene
Garcia, Rebecca Miley, Patricia Musgrove, Johnnie
Norman, Novita Reimers, and Betty J. Wolf for any
moneys deducted from their wages for the period fol-
lowing their resignations from union membership ex-
cept to the extent those funds were withheld and
placed by the Employer in a special escrow account,
with interest as set forth in the remedy section of this
decision.
(b) Post at its offices and meeting halls in Houston,
Texas, copies of the attached notice marked ‘‘Appen-
dix.’’14 Copies of the notice, on forms provided by the
Regional Director for Region 16, after being signed by
345FOOD & COMMERCIAL WORKERS LOCAL 455 (GERLAND’S FOOD)
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to members
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) 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.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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 refuse to honor any employee’s rev-
ocation of his dues-checkoff authorization after the em-
ployee has resigned membership in the Union, where
the terms of the voluntarily executed checkoff author-
ization do not clearly and explicitly impose any dues
obligation on the employee and where there is no valid
union-security clause in effect.
WE WILL NOT cause and/or attempt to cause,
Gerland’s Food Fair, Inc.; Gerland’s Food Fair, Inc.
d/b/a Gerland’s Realty, Inc.; and Gerland’s Food Pan-
try, Inc., by virtue of a dues-checkoff authorization
that does not clearly and explicitly impose any
postresignation dues obligation on the employee, to de-
duct union membership dues from the wages of any
employee who has resigned 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.
WE WILL make whole employees Mario Chavarria,
Irene Garcia, Rebecca Miley, Patricia Musgrove,
Johnnie Norman, Novita Reimers, and Betty J. Wolf
for any moneys deducted from their wages for the pe-
riod following their resignations from union member-
ship, except to the extent those funds were withheld
and placed by the Employer in a special escrow ac-
count, with interest.
UNITED FOOD AND COMMERCIAL
WORKERS LOCAL UNION NO. 455,
AFL–CIO