Hudson Foods, Local 425

National Labor Relations Board - Board Decisions

Feb 23, 1987

282 N.L.R.B. 1413 (N.L.R.B. 1987)

FOOD & COMMERCIAL WORKERS LOCAL 425 (HUDSON FOODS) 1413
United Food & Commercial Workers, Local 425,
AFL-CIO and Hudson Foods , Inc. Case 26-
CB-2259
23 February 1987
DECISION AND ORDER
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record and the briefs, the Board
makes the following
FINDINGS OF FACT
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
Upon a charge filed 3 March by Hudson Foods,
Inc., the Company, the General Counsel of the Na-
tional Labor Relations Board issued a complaint 20
March 1986. The complaint alleges that since about
23 January 1986, United Food & Commercial
Workers, Local 425, AFL-CIO, the Respondent,
has attempted to cause the Company to withhold
union membership dues from the wages of certain
employees of the Company who have effectively
resigned their union membership in the Respond-
ent. The complaint further alleges that by the acts
and conduct described above, and by each of these
acts, the Respondent has restrained and coerced,
and is restraining and coercing, employees in the
exercise of the rights guaranteed in Section 7 of the
National Labor Relations Act, and the Respondent
thereby has been engaging in unfair labor practices
within the meaning of Section 8(b)(1)(A) of the
Act. The complaint also alleges that by the acts
and conduct described above, and by each of these
acts, the Respondent has attempted to cause, and is
attempting to cause, an employer to discriminate
against its employees in violation of Section 8(a)(3)
of the Act, and the Respondent thereby has been
engaging in unfair labor practices within the mean-
ing of Section 8(b)(2) of the Act.
On 23 May 1986 the Respondent, the Company,
and the General Counsel filed a motion to transfer
the proceeding to the Board and a stipulation of
facts. The parties agreed that the charge, complaint
and notice of hearing, answer, order indefinitely
postponing hearing, and the "Stipulation of Facts"
constitute the entire record in the case, and that no
oral testimony is necessary or desired by any of the
parties. The parties waived a hearing before an ad-
ministrative law judge, the making of findings of
facts and conclusions of law by an administrative
law judge, and the issuance of an administrative
law judge's decision. The parties submitted this
case for findings of facts, conclusions of law, and
order directly by the Board.
On 10 September 1986 the Board issued an order
granting the parties' motion, approving the stipula-
tion , and transferring the proceeding to the Board.
Thereafter, the General Counsel, the Charging
Party, and the Respondent filed briefs.
1. JURISDICTION
At all times material, the Company, a corpora-
tion with an office and place of business in Hope,
Arkansas, has been engaged in the processing of
poultry. Annually, the Company, in the course and
conduct of its business operations sold and shipped
from the Company's facility products, goods, and
materials valued in excess of $50,000 directly to
points outside the State of Arkansas. Annually, the
Company, in the course and conduct of its business
operations, purchased and received at the Compa-
ny's facility products, goods, and materials valued
in excess of $50,000 directly from points outside
the State of Arkansas. We find that the Company is
an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
We find that the Respondent Union is and has
been at all times material herein a labor organiza-
tion within the meaning of Section 2(5) of the Act.
11. ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
The Respondent and the Company had a collec-
tive-bargaining agreement which was effective by
its terms from 23 October 1983 to 25 October 1986.
The collective-bargaining agreement contained the
following provision:
Article XVII, Section 1: Collection of Dues.
Upon legal authorization in writing by an em-
ployee, the Company shall deduct from such
employees' pay check each week the regular
union dues and initiation fees.
Pursuant to article XVII, section 1 of the collec-
tive-bargaining agreement, the Company deducted
union dues from employees' wages and remitted
those dues to the Respondent in accordance with
checkoff authorization cards signed by employees
Rhonda Mathis, Jessie L. Scroggins, Lois M. John-
son, Dora Mae Gillispie, Charles Gillispie, Arthur
Jean English,' Abraham Clark, Shara A. Brown,
and Bill Almond. All the authorization cards,
' Although the Stipulation of Facts refers to this employee as Author
English, the exhibits, including a note signed by this employee, indicate
that the correct name is Arthur Jean English
282 NLRB No. 175
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except for that of Almond , 2 contained identical
language. The Company is authorized:
to deduct from my wages Union initiation fees
and membership dues of FOOD HANDLERS
LOCAL 425, affiliated with United Food &
Commercial Workers International Union
AFL-CIO-CLC, and to forward them to the
appropriate local Union Official.
If permitted by law, this authorization shall
be irrevocable for the period of one year from
the date hereof or until the termination of any
applicable Agreement between my employer
and the Union , whichever occurs first.
This authorization shall continue in effect
and, if permitted by law, shall be irrevocable
,after the expiration of the shorter of the peri-
ods above specified for further successive peri-
ods of Agreement, whichever occurs. first,
except that I may cancel and revoke this au-
thorization by giving written notice to my em-
ployer, - with a copy to the local union not
more than thirty (30) days and not less than
twenty (20) days prior to the expiration of
each period of one year or each applicable
Agreement between my employer and the
Union, whichever occurs first.
On various dates between 8 October 1985 and
about 1 April 1986 , the Respondent received from
the employees named above letters of resignation
from membership in Respondent Union . Following
receipt of similar resignation letters, the Company
ceased deducting union dues from the employees'
wages. By letters , the Respondent recognized and
accepted the resignations " of the employees named
above. Since 8 January 1986, the Respondent,
through the grievance arbitration procedure, has
attempted to cause the Company to withhold union
membership dues from the wages of the employees
named above, although the employees had effec-
tively resigned their membership in the Respond-
ent. The grievance forms are dated 8 January 1986
and 23 January 1986, and Respondent's letter to the
Company notifying the Company that the Re-
spondent was taking the checkoff grievances to ar-
bitration is dated 6 February 1986.3
2 Almond's card authorized the Employer to deduct "such sums as the
Financial Secretary of United Food and Commercial Workers Local 425
may certify as due and owing from me as membership dues "
8 The 8 January 1986 grievance form states, in relevant part, that the
"[s]ettlement desired is that the union wants the company to honor the
check-offs of [Lois M Johnson, Abraham Clark, Rhonda Mathis, Charles
Gillispie, Dora Mae Gillespie, and Arthur Jean English] and the company
pay [sic] the back dues to the union for these employees " The 23 Janu-
ary 1986 grievance form contained similar language , but concerned only
employee Jessie Scroggins
B. Contentions of the Parties
The General Counsel contends that the Respond-
ent has violated Section 8(b)(1)(A) and (2) by at-
tempting to force the Company to continue to
check off membership dues of employees who have
effectively resigned their membership in the Re-
spondent . The General Counsel, citing Machinists
Local 2045 (Eagle Signal), 268 NLRB 635 (1984),
argues that when dues are a quid pro quo for mem-
bership , the checkoff authorization is automatically
revoked whether or not the resignation is made
during the period for revocation set forth in the au-
thorization itself. The General Counsel further con-
tends that the language contained in the authoriza-
tion cards herein indicates that dues are a quid pro
quo for membership in the Respondent Union. In
this regard, the General Counsel asserts that the
language in the authorization cards here is similar
to the language in authorization cards in cases
where the Board had found that dues were a quid
pro quo for membership .4 The General Counsel
notes additionally that there is no provision in the
authorization for financial core membership.5
The Respondent argues that the "Eagle Signal
line of cases" were wrongly decided and should be
overruled . In this regard , the Respondent contends
that the dichotomy between an authorization that is
or is not a quid pro quo for union membership is
unsound , at least in a right-to-work State ' such as
Arkansas . The Respondent further contends that
Section 302 of the Taft-Hartley Act governs the
questions of revocability of checkoff authorization
rather than Section 7 under the Board's jurisdic-
tion.
C. Discussion
In Eagle Signal the Board reiterated the well-set-
tled rule of law applicable to the issues raised in
this proceeding:
It is established Board law that a dues-check-
off authorization, or a wage assignment as it is
called in this case, is a contract between an
employee and his employer and that a resigna-
tion of union membership ordinarily does not
revoke a checkoff authorization. However, a
4 The General Counsel cites, inter alto Postal Service, 280 NLRB 1439
(1986), Shopmen's Local 539 (Zurn Industries), 278 NLRB 149 (1986), Ma-
chinists Local 2045 (Eagle Signal), supra, Carpenters San Diego County Dis-
trict (Campbell Industries), 243 NLRB 147 (1979),, and Steelworkers Local
7450 (Asarco Inc.), 246 NLRB 878 (1979) The General Counsel compares
these cases to Frito-Lay, 243 NLRB 1371 (1979), in which the Board
found dues were not a quid pro quo for union membership.
5 The Charging Party reiterates the contentions of the General Coun-
sel and notes further that Arkansas is a right-to-work State The Charg-
ing Party asserts that the Respondent is attempting to do indirectly what
it is prohibited from doing directly, i e, limit or impede a member's resig-
nation from the Union
FOOD & COMMERCIAL WORKERS LOCAL 425 (HUDSON FOODS) 1415
resignation will, by operation of law, revoke a
checkoff authorization, even absent a revoca-
tion request, where the authorization itself
makes payment of dues a quid pro quo for
union membership. This is so whether or not
the resignation is made during the period for
revocation set forth in the authorization itself.
Accordingly, the threshold issue in this case is
whether the terms of the written assignment exe-
cuted by the employees "makes payment of dues a
quid pro quo for union membership." Eagle Signal,
supra. If dues payment is a quid pro quo for union
membership, resignations from membership revoke
the dues-checkoff authorization "whether or not
the resignation is made during the period for revo-
cation set forth in the authorization itself." Eagle
Signal, supra.
The assignments executed by Mathis, Scroggins,
Johnson, Dora Mae Gillispie, Charles Gillispie,
English, Clark, and Brown specifically authorize
and direct the Company to "deduct from my
wages union initiation fees and membership dues."
The assignment executed by Almond specifically
authorizes the Company to deduct "such sums as
the Financial Secretary [of Respondent] may certi-
fy as due and owing from me as membership
dues." As contended by the General Counsel, the
foregoing assignments are, in pertinent respects,
virtually indistinguishable in character from the as-
signment at issue in Eagle Signal, which authorized
the deduction of "regular monthly Union dues . . .
in accordance with regular membership dues," and
from that in Postal Service, 279 NLRB 40 (1986),
which directed the deduction of "such regular and
periodic membership dues as the Union may certify
as due and owing from me."', In both Eagle Signal
and Postal Service, the Board concluded that the au-
thorizations at issue clearly conveyed that the pay-
ment of dues was a quid pro quo for union mem-
bership and not for other financial obligations, such
as "financial core" payments in lieu of member-
ship.7 Given the similarity of the authorizations at
6 See also Shopmen's Local 539 (Zurn Industries), 278 NLRB 149 (1986)
(the authorization card directed that dues be deducted in "the amount
owed by me for membership dues" to the union), Carpenters San Diego
County District (Campbell Industries), 243 NLRB 147, 153 (1979) (the as-
signment directed the company to "deduct my monthly membership
dues" in the union), and Steelworkers Local 7450 (Asarco Inc), 246 NLRB
878, 881 -882 (1979) (the dues-checkoff authorization directed a deduction
"as my membership dues" in the union)
7 Cf American Nurses' Assn, 250 NLRB 1324, 1331 (1980), in which
the applicable contractual language provided for the payment of an
amount equivalent to fees and dues either to the union as a member, to
the union as a nonmember, or to a nonreligious tax exempt charitable in-
stitution See also Frito-Lay, 243 NLRB 137 (1979), where the deduction
of fees and dues set forth in the authorization rested on an agency shop
"financial core" obligation
issue in this case to those executed in Eagle Signal
and Postal Service, we find that the authorizations
executed by employees named above clearly pro-
vide for the payment of dues as a quid pro quo for
union membership. Therefore, when these employ-
ees validly resigned their union membership, the fi-
nancial obligation underlying the execution of the
authorization, i.e., the agreement to have member-
ship dues assigned to the Respondent Union,
ceased to exist for purposes of dues checkoff.
Accordingly, and since we find no merit in the
Respondent Union's contentions that Eagle Signal
and its progeny are unsound and should be over-
ruled, we conclude that the Respondent, by at-
tempting to cause the Company to withhold dues
from the paychecks of employees who have effec-
tively resigned union membership, violated Section
8(b)(1)(A) and (2) of the Act.
CONCLUSIONS OF LAW
1. Hudson Foods, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Respondent, United Food & Commercial
Workers, Local 425, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
3. By attempting to cause the Employer to with-
hold the dues of employees who had effectively re-
signed from the Respondent when the employees'
dues-checkoff authorization was in consideration
for union membership, the Respondent violated
Section 8(b)(1)(A) and (2) of the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged
in, and is engaging in, unfair labor practices within
the meaning of Section 8(b)(1)(A) and (2) of the
Act, we shall order that it cease and desist there-
from and take certain affirmative action necessary
to effectuate the purposes of the Act."
ORDER
The National Labor Relations Board orders that
the Respondent, United Food & Commercial
8 The General Counsel requests a visitatorial clause authorizing the
Board, foi compliance purposes, to obtain discovery from the Respond-
ent under the Federal Rules of Civil Procedure subject to the United
States court of appeals enforcing this Order Under the circumstances of
this case, we find it unnecessary to include such a clause Accordingly,
we deny the General Counsel's request See Nathan's Furniture Store of
Hazelton, 278 NLRB 268 (1986)
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers, Local 425, AFL-CIO, Hope, Arkansas,
its officers, agents, and representatives, shall
1. Cease and desist from
(a) Attempting to cause dues to be withheld
from employees who have effectively resigned
their union membership.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its business office and other places
copies of the attached notice marked "Appendix."9
Copies of the notice, on forms provided by the Re-
gional Director for Region 26, after being signed
by 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
B If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent 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 ordered us to post and abide by this notice.
WE WILL NOT attempt to cause dues to be with-
held from employees who have effectively resigned
their union membership.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
UNITED FOOD & COMMERCIAL
WORKERS , LOCAL 425, AFL-CIO
*U.S. G.P.O. 1989-241-524:00002