Gerland's Food Fair

National Labor Relations Board - Board Decisions

Mar 29, 1991

302 N.L.R.B. 336 (N.L.R.B. 1991)

336
302 NLRB No. 52
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are for the period September 28, 1989, through August 10, 1990,
unless otherwise indicated.
2 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 his union membership in accordance with the procedures estab-
lished in the Union’s constitution and bylaws.
3 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 check-off authorization form for such
deductions. Such authorizations shall be binding on the employees for the
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.
Gerland’s Food Fair, Inc.; Gerland’s Food Fair,
Inc. d/b/a Gerland’s Realty, Inc.; Gerland’s
Food Pantry, Inc. and James Alexander Vargas
and Dennis Michael Moore
United Food and Commercial Workers Local Union
No. 455, AFL–CIO and James Alexander
Vargas and Dennis Michael Moore. Cases 16–
CA–14508, 16–CA–14529, 16–CB–3569, and 16–
CB–3574
March 29, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
Upon separate charges filed by James Alexander
Vargas and Dennis Michael Moore on March 30 and
April 12, 1990,1 respectively, and later amended on
April 23 and 30, respectively, the General Counsel of
the National Labor Relations Board issued a consoli-
dated complaint on May 3, against Gerland’s Food
Fair, Inc., Gerland’s Food Fair, Inc. d/b/a Gerland’s
Realty, Inc., Gerland’s Food Pantry, Inc., Respondent
Employer, and United Food and Commercial Workers
Local Union No. 455, AFL–CIO, Respondent Union,
alleging that Respondent Employer violated Section
8(a)(1), (2), and (3) and that Respondent Union vio-
lated Section 8(b)(1)(A) and (2) of the National Labor
Relations Act. Thereafter, the Respondents filed an-
swers denying the commission of any unfair labor
practice.
On June 23, 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 attached
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 find-
ings of fact, conclusions of law, and an order.
On August 10, the Board issued its order approving
the stipulation and transferring the proceeding to the
Board. Thereafter, the General Counsel, Respondent
Employer, and Respondent Union 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
Respondent Employer, a Texas corporation, with an
office and place of business in Houston, Texas, is en-
gaged in the retail sale of groceries and related items.
During the 12 months preceding the execution of the
stipulation of facts, a representative period, Respondent
Employer, in the course and conduct of its business
operations, purchased and received goods, materials,
products, and supplies valued in excess of $50,000 di-
rectly from points outside the State of Texas. We find
that Respondent Employer is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act. We further find that Respondent Union is
a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The issues presented are whether Respondent Em-
ployer violated Section 8(a)(1), (2), and (3) and Re-
spondent Union violated Section 8(b)(1)(A) and (2) by
refusing to honor the requests of two employees to re-
voke their previously executed dues-checkoff author-
izations after they had resigned union membership.
A. Facts
Respondent Union, by virtue of Section 9(a) of the
Act, is the exclusive representative of certain employ-
ees of Respondent Employer, including Vargas and
Moore. The Respondents were parties to a collective-
bargaining agreement, 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 provides that the employees could au-
thorize Respondent Employer to deduct initiation fees
and regular monthly dues2 from their wages and remit
them to Respondent Union.3 Dues-checkoff authoriza-
tions, which may be revoked, are used by Respondent
Union to collect monthly deductions from the employ-
337GERLAND’S FOOD FAIR
4 The checkoff authorization form executed reads, in relevant part, as fol-
lows:
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.
lll lllllll llllllllll
Dues Date Signed Member’s Signature
lllll lllllll lllllllllll
Init./Reinst Social Security No. Please Print Name
5 On March 21, 1989, Respondent Union filed a grievance concerning the
identical issue and alleging that Respondent Employer had violated the parties’
collective-bargaining agreement by ceasing dues checkoff for seven other em-
ployees: Mario Chavarria, Irene Garcia, Rebecca Miley, Patricia Musgrove,
Johnnie Norman, Novita Reimers, and Betty J. Wolf. The grievance was arbi-
trated on December 7. The arbitrator issued his award on December 8 and
found that Respondent Employer had violated sec. 3.01 of the parties’ agree-
ment when it discontinued checkoff for employees Chavarria, Garcia, Miley,
Musgrove, Norman, Reimers, and Wolf. The arbitrator ordered a make-whole
remedy plus interest. Thereafter, on December 28, Respondent Employer filed
a complaint for interpleader and declaratory relief in the United States District
Court, Southern District of Texas. On January 24, Respondent Union filed its
answer and a counterclaim in this matter. On February 15, Respondent Em-
ployer filed its answer to the Respondent Union’s counterclaim. The record
does not indicate that any further court action has occurred. We note that none
of the parties seeks Board deferral of the instant unfair labor practice case to
the arbitrator’s award.
In addition to this grievance, Respondent Union also filed, on April 19, an
unfair labor practice charge in connection with Respondent Employer’s refusal
to deduct union dues and remit them to the Respondent Union. The charge
was dismissed by the Regional Director, and this dismissal was subsequently
upheld on appeal to the General Counsel.
6 The parties stipulated that such action would not be required because the
parties’ collective-bargaining agreement does not contain any provision man-
dating that employees be union members and pay union dues.
ees of Respondent Employer. However, expectancy of
compliance with the revocation provisions contained in
the authorization agreements themselves permits Re-
spondent Union to project income and budget ex-
penses.
On September 28, Vargas and Moore executed a
checkoff authorization form4 authorizing Respondent
Employer to deduct ‘‘Union dues and initiation fees’’
from their wages and remit them to Respondent Union.
About October 15, these authorizations were delivered
to Respondent Employer. On December 8, Vargas no-
tified the Respondents that he was resigning his mem-
bership in the Respondent Union and that he desired
to revoke his checkoff authorization. On March 5,
Moore notified the Respondents that he was resigning
his membership in the Respondent Union and that he
desired to revoke his checkoff authorization.
By letters dated March 14 and April 12, Respondent
Union refused and declined to process Vargas’ and
Moore’s revocation requests, although it apparently ac-
cepted their requests to withdraw from membership.
Respondent Union also notified Respondent Employer
that it must continue to deduct union dues from these
employees’ wages because their revocation requests
were untimely under the terms of the checkoff author-
ization agreements previously executed by them dis-
cussed above.
On March 5 and 9, respectively, Respondent Em-
ployer notified Vargas and Moore that it was refusing
to honor their requests to revoke their checkoff author-
izations. Sometime thereafter, Respondent Employer
ceased forwarding dues to Respondent Union on behalf
of Vargas and Moore.5 Respondent Union has not re-
quested that the employment status of any of these em-
ployees be affected.6
B. Contentions of the Parties
The General Counsel offers three alternative theories
on which to base violations of Section 8(a)(1), (2), and
(3) and Section 8(b)(1)(A) and (2). First, by applying
the principles of Pattern Makers v. NLRB, 473 U.S. 98
(1985), the General Counsel contends that the Re-
spondents’ refusal to honor Vargas’ and Moore’s rev-
ocations of their dues-checkoff authorizations was an
unlawful restriction on their Section 7 right to resign
union membership. Second, the General Counsel urges
the adoption of the view taken by former Member Jo-
hansen in Postal Service, 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 au-
thorizations were untimely, as claimed by Respondent
Union, their resignations from membership, which the
Respondent Union accepted, reduced their dues obliga-
tions to zero. Thus, according to this theory, Respond-
ent Union violated the Act by causing Respondent Em-
ployer to deduct from these employees’ paychecks
amounts greater than zero. Finally, the General Coun-
sel contends that the Respondents’ conduct was unlaw-
ful under the ‘‘quid pro quo’’ analysis of Machinists
Local 2045 (Eagle Signal), 268 NLRB 635, 637
(1984), discussed below.
Respondent Employer contends that the checkoff au-
thorization forms executed by Vargas and Moore were
revoked, by operation of law, upon their resignations
from the Union. Consistent with the General Counsel’s
third alternative theory, Respondent Employer’s argu-
ment relies primarily on the ‘‘quid pro quo’’ analysis
of Eagle Signal. Respondent Employer takes the posi-
tion that but for the unlawful conduct of Respondent
Union it would have ceased making dues deductions
from the paychecks of Vargas and Moore.
Respondent Union defends its action on the basis
that it could lawfully insist on the continued collection
of dues from untimely requested that their checkoff au-
338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 302 NLRB 322 (1991).
8 See NLRB v. Postal Service, 833 F.2d 1195 (6th Cir. 1987); NLRB v. Post-
al Service, 827 F.2d 548 (9th Cir. 1987).
9 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
10 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.
thorizations be revoked. In this regard, Respondent
Union urges that the Board reject Eagle Signal and in-
stead adopt the principle that, in the absence of a
union-security clause, a checkoff authorization volun-
tarily signed by an employee is irrevocable except ac-
cording to the terms of, and at the intervals stated by,
the authorization agreement itself. In the alternative, if
the Board continues to apply the analysis of Eagle Sig-
nal, Respondent Union urges the Board to find that the
language of the checkoff authorizations at issue does
not show that the authorizations themselves made pay-
ment of dues a quid pro quo for union membership.
Thus, Respondent Union takes the position that, even
applying Eagle Signal, it acted lawfully in rejecting the
revocation requests submitted by Vargas and Moore.
C. Discussion
In Electrical Workers IBEW Local 2088 (Lockheed
Space Operations),7 the Board acknowledged judicial
criticism of the Eagle Signal analysis8 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.9 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.]10
Applying the analysis of Lockheed to the stipulated
facts in this case, we find the Respondents have failed
to show that the dues-checkoff authorizations the two
employees signed obligated them to pay dues after
they effectively resigned union membership. As in
Lockheed, all that Vargas and Moore clearly agreed to
do was allow certain sums to be deducted from their
wages and remitted to Respondent Union for payment
of their ‘‘union dues and initiation fees.’’ They did not
clearly agree to have deductions made even after they
had submitted their resignation from union member-
ship. We thus find that these partial wage assignments
made by Vargas and Moore were conditioned on their
union membership and were revoked when they ceased
being union members. We therefore find that the Re-
spondent Employer’s refusal to discontinue payroll de-
ductions of union dues for Vargas and Moore was un-
lawful assistance to a labor organization and restrained
and coerced these employees in the exercise of their
Section 7 rights. Accordingly, we find that Respondent
Employer violated Section 8(a)(1), (2), and (3) of the
Act. We further conclude that Respondent Union’s re-
fusal to accept these employees’ revocation requests
and its demand that Respondent Employer continue to
check off their membership dues restrained and co-
erced these employees in the exercise of their Section
7 rights. Accordingly, we find that Respondent Union
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 James
Alexander Vargas and Dennis Michael Moore, after
these employees resigned membership 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,
Respondent Union has restrained and coerced employ-
ees 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, Re-
spondent Union has violated Section 8(b)(2) of the
Act.
3. By refusing to discontinue dues deductions from
the wages of James Alexander Vargas and Dennis Mi-
339GERLAND’S FOOD FAIR
11 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.’’
chael Moore after they ceased being union members
and had requested that the Respondents cancel their
checkoff authorizations, Respondent Employer has un-
lawfully assisted Respondent Union and has restrained
and coerced employees in the exercise of their Section
7 rights, thereby violating Section 8(a)(1), (2), and (3)
of the Act.
REMEDY
Having found that the Respondents have engaged in
the unfair labor practices described above, we shall
order them to cease and desist and to take certain af-
firmative action designed to effectuate the policies of
the Act.
The Respondents must give full force and effect to
the employees’ revocation of their checkoff authoriza-
tions. In addition, the Respondents jointly and sever-
ally shall make employees Vargas and Moore whole
for any moneys deducted from their wages for the pe-
riod following their union membership resignations,
with interest to be computed in the manner prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).
ORDER
The National Labor Relations Board orders that
A. Respondent Employer, Gerland’s Food Fair, Inc.,
Gerland’s Food Fair, Inc. d/b/a Gerland’s Realty, Inc.,
and Gerland’s Food Pantry, Inc., Houston, Texas, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to honor revocation of dues-checkoff
authorizations after employees have resigned member-
ship in the Union, where the terms of the executed
checkoff authorizations do not clearly and explicitly
impose any postresignation dues obligation on the em-
ployees and where there is no valid union-security
clause in effect.
(b) Deducting, by virtue of dues-checkoff authoriza-
tions that do not clearly and explicitly impose any
postresignation dues obligation on the employees,
union membership dues from the wages of employees
who have resigned their union membership.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole jointly and severally with United
Food and Commercial Workers Local Union No. 455,
AFL–CIO, employees James Alexander Vargas and
Dennis Michael Moore for any dues deductions from
their wages for the period following their resignations
from union membership, with interest as set forth in
the remedy section of this decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Post at its facilities in Houston, Texas, copies of
the attached notice marked ‘‘Appendix A.’’11 Copies
of the notice, on forms provided by the Regional Di-
rector for Region 16, after being signed by the Re-
spondent Employer’s authorized representative, shall
be posted by Respondent Employer immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
members are customarily posted. Reasonable steps
shall be taken by Respondent Employer to ensure that
the notices are not altered, defaced, or covered by any
other material.
(d) Post at the same places and under the same con-
ditions as set forth in paragraph A,2,(c), above, as soon
as forwarded by the Regional Director, copies of the
attached notice marked ‘‘Appendix B.’’
(e) Mail signed copies of the attached notice marked
‘‘Appendix A’’ to the Regional Director for posting by
Respondent Union.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respond-
ent Employer has taken to comply.
B. Respondent Union, 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 Respondent
Employer, by virtue of a dues-checkoff authorization
that does not clearly and explicitly impose any
postresignation dues obligation on the employee after
resignation of union membership, to deduct union
membership dues from the wages of any employee
who has resigned union membership.
(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.
340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 See fn. 11 above.
(a) Make whole, jointly and severally with Respond-
ent Employer, employees James Alexander Vargas and
Dennis Michael Moore for any dues deductions from
their wages for the period following their resignations
from union membership, 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 notices marked ‘‘Appen-
dix B.’’12 Copies of the notice, on forms provided by
the Regional Director for Region 16, after being signed
by Respondent Union’s authorized representative, shall
be posted by Respondent Union immediately upon re-
ceipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
members are customarily posted. Reasonable steps
shall be taken by Respondent Union to ensure that the
notices are not altered, defaced, or covered, by any
other material.
(c) Post at the same places and under the same con-
ditions as set forth in paragraph B,2,(b), above, as soon
as forwarded by the Regional Director, copies of the
attached notice marked ‘‘Appendix A.’’
(d) Sign and return to the Regional Director suffi-
cient copies of the notice marked ‘‘Appendix B’’ for
posting by Respondent Employer at all places where
notices to employees are customarily posted.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respond-
ent Union has taken to comply.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to honor revocations of dues-
checkoff authorizations after the employees have re-
signed membership in the Union, where the terms of
the executed checkoff authorizations do not clearly and
explicitly impose any postresignation dues obligation
on the employees and where there is no valid union-
security clause in effect.
WE WILL NOT deduct, by virtue of dues-checkoff au-
thorizations that do not clearly and explicitly impose
any postresignation dues obligation on the employees,
union membership dues from the wages of employees
who have resigned their union membership.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make whole, jointly and severally with
United Food and Commercial Workers Local Union
No. 455, AFL–CIO, employees James Alexander
Vargas and Dennis Michael Moore for any dues de-
ductions from their wages for the period following
their resignations from union membership, with inter-
est.
GERLAND’S FOOD FAIR, INC.;
GERLAND’S FOOD FAIR, INC. D/B/A
GERLAND’S REALTY, INC.; GERLAND’S
FOOD PANTRY, INC.