Food & Commercial Workers Local 554 (Shop 'N Save)

National Labor Relations Board - Board Decisions

May 23, 1989

294 N.L.R.B. 169 (N.L.R.B. 1989)

FOOD & COMMERCIAL WORKERS LOCAL 534 (SHOP 'N SAVE) 169
United Food and Commercial Workers Meatcutters
Local 534, Chartered by United Food and Com-
mercial Workers International Union, AFL-
CIO, CLC (Shop 'N Save Warehouse Foods,
Inc.) and Dennie R. Suchman . Case 14-CB-
6688
May 23, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 18, 1988, Administrative Law Judge
Richard L. Denison issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent Union filed an
answering brief to the General Counsel's excep-
tions.
The National Labor Relations Board has delegat-
ed 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, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Michael T. Jamison, Esq, for the General Counsel.
Barry J. Levine, Esq., of St Louis, Missouri, for the Re-
spondent.
Dennie R Suchman, representing himself
DECISION
STATEMENT OF THE CASE
RICHARD L DENISON, Administrative Law Judge
This case was heard on January 12, 1988, in St Louis,
Missouri, based on an order consolidating cases, consoli-
dated complaint and notice of hearing in Cases 14-CA-
19001 and 14-CB-6688, issued on November 2, 1987 al-
leging violations of Section 8(a)(1) and (3) and Section
8(b)(2) of the Act, respectively. Pursuant to a settlement
agreement in Case 14-CA-19001, approved by the Re-
gional Director on January 7, 1988, on that date the Re-
gional Director issued an order severing cases and order
withdrawing complaint and notice of hearing in Case 14-
CA-19001. Accordingly, the sole issue in this proceeding
is whether or not the Respondent Union caused or at-
tempted to cause the Employer to discriminate against
Suchman in violation of Section 8(a)(3) of the Act, as
proscribed by Section 8(b)(2) of the Act
The Respondent's answer denies the allegations of
unfair labor practices alleged in the complaint. On the
entire record in the case, including consideration of the
briefs and observation of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
Based on the allegations of paragraph 2 of the com-
plaint, admitted in paragraph 3 of the Respondent's
answer, I find that Shop 'N Save Warehouse Foods, Inc
is now, and has been at all times material herein, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II LABOR ORGANIZATION
Based on the allegations in paragraph 3 of the com-
plaint, admitted in paragraph 4 of the Respondent's
answer, I find that the Respondent is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act
III SUPERVISORS
Based on the allegations of paragraph 4 A of the com-
plaint, admitted in paragraph 4 of the Respondent's
answer, and the stipulation of the parties, Joint Exhibit 1,
I find that the following-named persons occupy the posi-
tions set forth opposite their respective names, and are
now, and have been at all times material herein, supervi-
sors of the Employer within the meaning of Section
2(11) of the Act, and agents of the Employer within the
meaning of Section 2(13) of the Act.
Nancy Moss Vice President, Employee
Relations
Michael Heisler Store Manager
Stanley Swiecicki Co-Manager
IV. AGENTS OF THE RESPONDENT
Based on the allegations of paragraph 4 B of the com-
plaint, admitted in paragraph 5 of the Respondent's
answer, I find that at all times material herein the follow-
ing persons occupy the positions set forth opposite their
respective names, and are now, and have been at all
times material herein, agents of Respondent within the
meaning of Section 2(13) of the Act
Richard F Taylor, Sr President
Fred L Raney Secretary-Treasurer
Frank Scaturro Business Representative
V THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent and the Employer, Shop 'N Save
Warehouse Foods, Inc., have a collective-bargaining
agreement, the term of which is July 27, 1986, to July
22, 1989. The contract recognizes the Respondent as the
exclusive bargaining agent for all the Employer's nonsu-
pervisory employees in the area of "East St Louis and
immediate vicinity " Article II of that agreement is a
union-security clause that provides that, after the 30-day
period required by law, bargaining unit employees must
become and remain dues-paying members in good stand-
ing of the Union as a condition of continued employ-
294 NLRB No 15
170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment Accordingly, the Employer is thereby required, on
notice from the Union, to discharge any bargaining unit
employee who has failed to timely pay his or her dues.
For over 30 years, the Respondent has uniformly
maintained a policy of collecting dues on a quarterly
basis In accordance with a written stipulation in evi-
dence, it is established that the Respondent's dues are
$63 per quarter, due on the first day of each calendar
quarter If an employee-member has not paid his or her
dues by the 15th day of the second month of a given
quarter, the Union mails a delinquency notice advising
that person that if the dues are not paid by the end of the
second month of the quarter, membership will be sus-
pended and job removal may ensue Furthermore, a de-
linquent dues charge of $15 will be added on the first
day of the second month of the quarter, and a reinstate-
ment fee of $150 becomes due if the employee is sus-
pended effective the first day of the third month. Finally,
in the event the Union receives no response to the delin-
quency notice, the Employer is advised to discharge the
employee for failure to pay dues The parties further
stipulated that Dennie Robert Suchman, the Charging
Party, did not pay his $63 quarterly dues on April 1,
1987, missed meetings in January and April of that year,
and received a delinquent letter from the Union dated
May 15, 1987
Credited portions of Suchman's testimony revealed
that he became employed by Shop 'N Save Warehouse
Foods, Inc. on May 25, 1986, as a grocery clerk in the
Company's Cahokia, Illinois, store. Shortly before June
1, 1987, he became a produce clerk at the same location.
About 30 days after he began working, he became and
thereafter remained a member of the Respondent Such-
man testified that union dues are paid either at the hall in
person, or by mail or leaving payment in the Union's
secure drop box at the hall Payment may be in cash, or
by check or money order. i He conceded that he was
late in making his dues payment for the first quarter of
1987, but eventually paid plus a $15 late charge. He next
"got behind" with respect to the second quarter dues
payment due on April 1 of that year, and received by
mail a quarterly dues statement reflecting that fact This
statement also contained a separate notation showing that
Suchman was also charged the Union's customary $1
missed meeting penalty for being absent from the Janu-
ary 1987 union meeting Thus, the total amount due was
shown to be $64. Suchman did not pay his dues, nor did
he respond in any manner to this communication Fur-
thermore, he admitted being careless in that he did not
read the portion of the document which cautioned,
"Avoid delinquent charges Dues payments are due the
first day of the first month of the quarter Late dues, $15,
will be added the first day of the second month. Rein-
statement fee, $150, will be added upon suspension the
first day of the third month " As Suchman put it, "I usu-
ally dust saw the note at the top part there."
Suchman's procrastination resulted in the issuance of
the standard delinquent letter by the Respondent on May
15, 1987 In'addition to the $63 dues and the January
i Payments found in the drop box when the office opens at 8 30 a in
are credited as of the previous day
missed meeting charge, this statement also separately
billed Suchman $1 for missing the April 1987 union
meeting, and a $15 dues late charge for not having paid
his dues by May 1, making the total amount due $80
Suchman also ignored this notification, including the ad-
monition at the bottom of the letter stating that if his
dues were not paid on or before May 31, 1987, his union
membership would be suspended, he would be removed
from his job, and that his employer was being notified,
which might result in the termination of his employment
At approximately the same time that he received the
delinquent letter, Suchman was approached at work by
Store Manager Mike Heisler Heisler warned Suchman
that the Union had contacted him, and if Suchman did
not pay his dues by Monday, June 1, Suchman would no
longer be able to work Suchman replied that he would
take care of it
On or about May 28, Respondent's representative,
Frank Scaturro, called Co-Manager Stanley Swiecickt
and told him that Suchman and employee Tony Cabilis
were late with their dues, and if they failed to pay they
should not be permitted to work the following week.
Suchman admits that Scaturro's message was relayed to
him by Swiecicki on May 28.
Although the Respondent's office is not open on week-
ends, the Union has a secure drop box for their members'
convenience in making payments at times when the busi-
ness office is closed Suchman was aware of this fact, as
evidenced by his admission that he had previously used
the drop box for this purpose Nevertheless, he chose to
wait until Monday, June 1, before going to the hall to
pay his dues in person. He arrived between 11 30 p.m
and noon, where he encountered Sheila Knibb, the
Union's secretary.' Suchman handed Knibb $80, the total
of the separate charges listed as the amount due in the
delinquent letter of May 15 As Knibb began writing a
receipt for Suchman she stated, "Dennie, now, a rein-
statement fee of $150 will be added to your next pay-
ment because you are considered suspended as of this
date " Knibb never had an opportunity to finish complet-
ing the receipt, because Suchman became agitated and
reached across the counter retrieving the money As he
did so he stated, "I'm not paying this I'm not paying
you any more I'm quitting I'm quitting as of today I'm
going to the store right now and I'm quitting " Kmbb re-
plied, "That is your prerogative," whereupon Suchman
left the hall 3 When Business Agent Frank Scaturro re-
2 Kmbb, whose name is incorrectly spelled Knipp in other portions of
the transcript, types correspondence, opens and distributes mail, processes
memberships, collects dues, and performs bookkeeping functions
9 Suchman testified that he arrived at the union hall at 10 a in on June
1, and after his brief conversation with Kmbb proceeded to the store
where he arrived about 10 30 or I I a in This portion of his testimony is
not only inconsistent with that of Knibb, but also does not coincide with
Swiecicki's uncontradicted statement that he arrived for work at the
store that day at 3 p in , before Suchman's arrival Suchman's version of
his conversation with Knibb is fragmentary and less detailed than hers,
but generally coincides with what Knibb related He admitted tendering
$80, which he then retrieved when he became upset after learning that he
had been suspended and would be billed for a $150 reinstatement fee He
also conceded stating , "I said I give up I quit ," "expounded on my feel-
ings" and left the hall Knibb exhibited an excellent memory and an abili-
ty to precisely recount in detail what she recalled To the extent her testi-
mony differs significantly from that of Suchman, I credit Knibb
FOOD & COMMERCIAL WORKERS LOCAL 534 (SHOP 'N SAVE)
turned from lunch and Knibb described her confronta-
tion with Suchman , she requested that Scaturro call
Shop 'N Save "to verify the situation " Thereafter,
Knibb had no further involvement with the problem aris-
ing from Suchman 's failure to pay his dues.
Suchman arrived at the store shortly after 3 p m ,
where he talked with Heisler and Swiecicki Suchman's
account of what transpired was fragmentary , conclusion-
ary, and vague . According to Suchman, he "tried to ex-
plain to them what happened at the union hall . "
He said he had just come from there, had gone there to
pay the $80 he owed , and was told that he had to pay a
reinstatement fee of $150, which he did not have. Such-
man claimed to have stated that he thought the Union
would probably have called the store before his arrival
to tell the management he was no longer eligible to work
there Suchman said he "was hoping that they would be
able to . . . help me in some way to call someone or
something like that to explain to them that, you
know, that . . . I wasn 't quitting my job I wasn't
leaving there on my own because I wanted to " Such-
man further stated that during the conversation Heisler
was called to the telephone , and when he returned said
"that was them ." Then the conversation continued but
Suchman was unable to remember anything further that
was said After a time Heisler was called away to the
office again , and Suchman remained for a while talking
to Swiecicki Again Suchman was unable to remember
what was said Finally, Swiecicki returned to work,
Suchman waited 5 or 10 minutes , and when no one re-
turned to talk to him he left the store He claimed that
no one ever told him he was fired or was off the work
schedule, or made any statement that defined his work
status In response to a leading question he insisted that
he never told anyone he had quit Suchman had no fur-
ther contact with store management for about 2 weeks,
after which he went to the store to see if he had a vaca-
tion check waiting for him It was at this time , he stated,
that someone told him he would not receive a check be-
cause he did not give the Company the required 10 days'
notice that he was quitting . Suchman eventually returned
to work at the store on September 1, 1987
Stanley Swiecicki testified as a witness for the General
Counsel To the extent that his much more detailed and
complete testimony differs from that of Suchman, Swie-
cicki is credited . He testified that when Suchman arrived
at the store after 3 p.m. on June 1, he walked up to
Swiecicki and Heisler, described how he had been to the
union hall, and stated that he was quitting because he
couldn't pay his dues Swiecicki had no response, but
Heisler said he was sorry that Suchman could not pay
his dues and asked if there was anything Suchman could
do to get the money together "because it puts us in a
bind cause , you know, you are scheduled to work this
week." Suchman answered there was no way he could
get the money together , that he dust could not do it
Suchman left the store, and Heisler called the Company's
personnel office in St . Louis for approval to take Such-
man off the work schedule However, Suchman was not
removed from the schedule that day because St Louis
approval was not received
171
The Respondent concedes that under current Board
law it would be unlawful for the Union to seek Such-
man's discharge for failure to pay the missed -meeting
fees, or nonuniform fees or assessments , but insists that it
did not violate the Act in seeking to enforce Suchman's
obligation to pay his dues The General Counsel's argu-
ment is two -fold Counsel for the General Counsel con-
tends that the Union's dues are really monthly , and thus
part of Respondent's threatened job removal of Suchman
was an effort to collect dues in advance of Suchman's
obligation to pay . It is also urged that the Union's con-
duct was in part an effort to enforce the collection of the
penalty charges assessed to Suchman for missing meet-
ings and for late payment of dues I disagree on both
counts . It is well settled that under the terms of a valid
union -security provision in its collective -bargaining
agreement with an employer , like the one that exists be-
tween Respondent and Shop 'N Save, the Union may
lawfully request the discharge of an employee for failure
to pay or tender his periodic dues and initiation fees It is
likewise well established that a union violates Section
8(b)(2) of the Act when it seeks to invoke the enforce-
ment provisions of the union -security clause for reasons
other than the employees ' failure to pay or tender those
fees The circumstances of the instant case are clear and
unambiguous . Suchman did not pay any of his union
dues . He made no effort to contact or otherwise discuss
the matter with the Union until after the suspension
deadline At no time did anyone from the Union ever
suggest, orally or in writing, that the enforcement provi-
sion of the union-security agreements would be invoked
against Suchman for any reason other than his failure to
pay his dues A fair examination of the document dated
May 15, 1987, clearly reveals that the document is divid-
ed into two separate and distinct parts by a heavy double
line. The top portion constitutes the delinquent letter
showing a total amount due as of that date of $80, and
an item by item breakdown of the amount that, in this
instance , included two missed -meeting fines and a $15
dues late charge . Nowhere on this portion of the docu-
ment is Suchman threatened with job removal for failure
to pay the total amount due The only other statement in
this part of the document is that "dues must be paid Jan-
uary, April , July and October ." The second portion of
the document below the double separating line is headed
"Statement " The statement portion of the document
makes no reference whatsoever to fines, but simply
shows that Suchman owed $63 in dues It is at the
bottom of the dues statement that there appears the ad-
visement that,
Your quarterly dues are now past due If the
above amount is not paid on or before May 31, 1987
your union membership will be suspended and you
will be removed from your job
Your employer is also being notified and if you
are removed from your job, your employer may
terminate your employment.
I am persuaded and find that this admonition plainly ap-
plies only to Suchman's dues The fact that Suchman did
not even read the included statement , or for that matter
172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
behaved likewise with respect to the April 1 quarterly
dues statement he previously received, is attributable to
Suchman's negligence and is no fault of the Union. The
relevant proscription contained in Section 8(b)(2) of the
Act was clearly intended by Congress to protect em-
ployees from a specific form of discrimination and was
not designed to be a savings clause for the inattentive
Moreover, although it may be technically immaterial to a
discussion of the specific issue under consideration, the
fact remains that the Union regularly and uniformly
made available to employees who were delinquent in
paying their dues and other charges, a liberal policy of
accepting installment payments from employee members
unable to pay any lump sum However, the irate Such-
man never made any effort to enter into any such ar-
rangement for solving his problem even though he knew
such a solution was available.
Finally, I turn to the argument that the Union's quar-
terly dues collection system is a device that enables it to
collect from employees money not yet owed Only by an
obvious distortion of the facts can this conclusion be
reached Under this reasoning, if carried to its ultimate
absurdity, any union that collects its dues on the first of
the month instead of the end of the month violates the
Act by collecting money not yet "due." Only by stretch-
ing the facts to reach the conclusion that the Respondent
actually has a monthly dues system, not a quarterly
system, can it be deemed, by any stretch of the imagina-
tion, that the Union is collecting money for periods for
which there is no obligation to pay. The precedents cited
by counsel for General Counsel are not conclusive The
record evidence does not support such an assumption
Sheila Knibb, who performs the bookkeeping, and Busi-
ness Representative-Secretary Treasurer of Local 534
Fred Raney, each credibly testified that the Respondent's
dues have always been quarterly The fact that the cur-
rent quarterly dues amount of $63 is evenly divisible by
three simply enables the Union to prorate dues on a
monthly basis in the event an employee either becomes a
member or leaves his employment in the midst of a quar-
ter, thereby avoiding collecting from the employee
money for which the Union rendered no services This
prorating of dues is evidenced on the Union's computer
printout records enabling the auditors, who annually ex-
amine the Union's books, to determine what part of a
quarter for which the new or departing employee was
obligated to pay. I find that the General Counsel has
failed in his burden of proof I therefore find that the Re-
spondent has not violated Section 8(b)(2) of the Act, as
alleged in the complaint.
CONCLUSIONS OF LAW
1 The Respondent is a labor organization within the
meaning of Section 2(5) of the Act
2. The Employer, Shop 'N Save Warehouse Foods,
Inc, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act
3 The Respondent has not violated Section 8(b)(2) of
the Act, as alleged in the complaint
Upon these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
Respondent's motion to dismiss the complaint is grant-
ed
The complaint is dismissed
4 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses