Kroger, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1999

327 N.L.R.B. 1237 (N.L.R.B. 1999)

KROGER, INC. 1237
Kroger, Inc. and Nicholas Klein

United Food and Commercial Workers, Local 1099,
AFL–CIO (Kroger, Inc.) and Nicholas Klein.
Cases 9–CA–31116 and 9–CB–8672
March 31, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On January 31, 1995, Administrative Law Judge Peter
E. Donnelly issued the attached decision. The General
Counsel, the Respondent Union, and the Charging Party
each filed exceptions and a supporting brief, and the Re-
spondent Union and the Charging Party each filed an-
swering briefs.
On January 22, 1998, the Board issued a Notice and
Invitation to File Briefs. Thereafter, on February 11,
1998, the General Counsel and the Respondent Union
each filed motions to withdraw exceptions and to remand
the proceeding to the Regional Director for compliance.
The Charging Party filed an opposition to the motions.
By order dated February 23, 1998, the Board granted the
General Counsel and the Respondent Union’s respective
motions to withdraw exceptions and rescinded the invita-
tion to file briefs.1 However, the proceeding remained
pending before the Board on the Charging Party’s excep-
tions.
As the exceptions filed by the General Counsel and the
Respondent Union have been withdrawn, we adopt, pro
forma, in the absence of exceptions, the judge’s rulings,
findings, and conclusions with respect to the alleged un-
fair labor practices. However, in light of the Charging
Party’s exceptions, discussed below, we have decided to
modify the judge’s recommended Order as set forth in
full below.2
The judge found that the Respondent Union violated
Section 8(b)(1)(A) of the Act by maintaining in effect a
union-security clause requiring that, as a condition of
employment, employees become and remain “members
in good standing of the Union” without informing unit
employees that they are only obligated to pay those fees
and dues spent on activities germane to their union’s role
as bargaining representative. The Respondent Union has
withdrawn its exceptions to this finding. However, it
must be emphasized that the finding is not that the clause
is unlawful on its face. To the contrary, the judge said
that the clause “appears to be facially valid and lawful.”3
We interpret the judge’s decision in light of current law,
and find that the Respondent Union unlawfully failed to
provide unit employees notice of their rights under
Communication Workers v. Beck, 487 U.S. 735 (1988).
See California Saw & Knife, 320 NLRB 224 (1995). As
part of his recommended remedy for this violation, the
judge ordered the Respondent Union to reimburse the
Charging Party, Nicholas Klein, for any dues and fees
exacted for nonrepresentational activities. The Charging
Party has excepted to the judge’s failure to provide all
unit employees with reimbursement of unlawfully col-
lected dues. We find merit in this exception only to the
extent that we shall provide a Rochester remedy4 to those
employees who were initially subjected to union security
on or after March 14, 1993, the beginning of the 6-month
period preceding the filing of the charge.5

1 Member Brame dissenting.
2 We shall also modify the judge’s recommended Order in accor-
dance with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
3 The Charging Party excepts to this statement. The exception has
no merit. The Charging Party contends that, by maintaining a union-
security clause that requires unit employees to be members of the Un-
ion in good standing as a condition of employment, the Respondent
Union misleads employees about the true nature and extent of their
union-security obligations and that the clause must be removed. The
complaint, however, did not allege that the union-security provision is
invalid. Further, in Marquez v. Screen Actors Guild, 525 U.S. 33
(1998), the Supreme Court rejected the argument presented here assert-
ing the facial invalidity of the union-security clause. The Court held
that a union does not violate its duty of fair representation by negotiat-
ing agreements that track the language of Sec. 8(a)(3) without explain-
ing, in such agreements, that the Court has held that formal union
membership cannot be required, NLRB v. General Motors Corp., 373
U.S. 734, 742 (1963), and that nonmembers cannot be charged dues
and fees for nonrepresentational purposes over their objections, Com-
munication Workers v. Beck, 487 U.S. 735, 752-754 (1988).
With respect to the complaint allegations against the
Respondent Employer, the complaint is dismissed.
AMENDED REMEDY
Having adopted, pro forma, the judge’s finding that the
Respondent Union violated Section 8(b)(1)(A), we shall
order it to cease and desist and take certain affirmative
action that will effectuate the policies of the Act. In ac-
cordance with California Saw, supra, we shall order the
Respondent Union to notify all bargaining unit employ-
ees of their rights under Beck and NLRB v. General Mo-
tors, 373 U.S. 734 (1963).6 The Beck notice shall con-

4 See Rochester Mfg. Co., 323 NLRB 260 (1997).
5 Paperworkers Local 987(Sun Chemical Corp. of Michigan), 327
NLRB No. 177, slip op. at 3 fn. 10 (1999).
We reject, however, the Charging Party’s contention that the Board
should order complete restitution of all dues and fees paid by the af-
fected employees. The Supreme Court and Board have held that a
union is required to reimburse only those dues determined to be in
excess of the amount that it could lawfully collect under Beck. See
Group Health Inc., 325 NLRB 342 (1998), enf. denied sub nom. Bloom
v. NLRB, 153 F.3d 844 (8 th Cir. 1998), vacated 119 S.Ct. 1023 (1999);
and Machinists v. Street, 367 U.S. 740, 771 (1961).
6 In his recommended remedy, the judge ordered the Respondent
Union to provide unit employees with notice of their Beck rights. As
stated in California Saw, however, “Beck rights accrue only to non-
members. Thus, in order to fully inform nonmember employees of
their Beck rights, a union must tell them of this limitation and must tell
them of their General Motors right to be and remain nonmembers.”
320 NLRB at fn. 57. In Paperworkers Local 1033 (Weyerhaeuser
Paper Co.), the Board expressly extended this concomitant notice obli-
gation to all unit employees, including “those who are still full union
members and who did not receive those notices before they became
members.” 320 NLRB 349 (1995), revd. on other grounds sub nom.
327 NLRB No. 206
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1238
tain sufficient information for each accounting period
covered by the complaint to enable those employees to
decide intelligently whether to object. See, e.g., Califor-
nia Saw, supra, 320 NLRB at 233. We shall order the
Respondent Union to notify in writing those employees
whom it initially sought to obligate to pay dues or fees
under the union-security clause on or after March 14,
1993, of their right to elect nonmember status and to
make Beck objections with respect to one or more of the
accounting periods covered by the complaint. With re-
spect to any such employees who, with reasonable
promptness after receiving their notices, elect nonmem-
ber status and file Beck objections with respect to any of
those periods, we shall order the Respondent Union, in
the compliance stage of the proceeding, to process their
objections, nunc pro tunc, as it would otherwise have
done, in accordance with the principles of California
Saw.7 The Respondent Union shall then be required to
reimburse, with interest, those objecting nonmember
employees for the reduction in their dues and fees, if any,
for nonrepresentational activities that occurred during the
accounting period or periods covered by the complaint to
which they have objected. We shall further order the
Respondent Union to provide Nicholas Klein, as a Beck
objector, with financial information and additional notice
of rights required by California Saw. Finally, we shall
order the Respondent to reimburse Klein for the dues and
fees collected from him that are not germane to the Re-
spondent Union’s representational activities. Interest on
the amount of proportionate back dues and fees owed to
objectors shall be computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, United Food and Commercial Workers,
Local 1099, AFL–CIO, its officers, agents, and represen-
tatives, shall
1. Cease and desist from
(a) Failing to notify unit employees, when they first
seek to obligate them to pay fees and dues under a union-
security clause, of their right to be and remain nonmem-
bers; and of the rights of nonmembers under Communi-
cation Workers of America v. Beck, 487 U.S. 735 (1988),
to object to paying for union activities not germane to the
Union’s duties as bargaining agent, and to obtain a
reduction in fees for such activities.

(b) Failing to provide unit employees who have filed a
Beck objection with information about the percentage of
the reduction in dues and fees charged to Beck objectors,

.

Buzenius v. NLRB, 124 F.3d 788 (6th Cir. 1997), vacated 525 U.S. 979
(1998).
7 Charging Party Klein has already objected, and the Respondent
Union failed to give him the required information.
the basis for that calculation, and the right to challenge
these figures.
(c) Maintaining in effect rules requiring Beck objectors
to adhere to internal union procedures as condition
precedent to seeking reductions in payments of reduced
dues or fees.
(d) Collecting from Beck objectors, under the dues-
checkoff provisions of the existing contract, either dues
or fees for nonrepresentational activities.
(e) In any like or related manner restraining or coerc-
ing employees in the exercise of their rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify all unit employees in writing of their right to
be or remain nonmembers; and of the rights of nonmem-
bers under Communications Workers v. Beck, supra, to
object to paying for union activities not germane to the
Union’s duties as bargaining agent, and to obtain a
reduction in fees for such activities
(b) For each accounting period since May 5, 1993,
provide Nicholas Klein with information setting forth the
Respondent Union’s major expenditures for the previous
accounting year and distinguishing between representa-
tional and nonrepresentational functions.
(c) Notify in writing those employees whom the Re-
spondent Union initially sought to obligate to pay dues or
fees under the union-security clause on or after March
14, 1993, of their right to elect nonmember status and to
make Beck objections with respect to one or more of the
accounting periods covered by the complaint.
(d) With respect to any employees who, with reason-
able promptness after receiving the notices prescribed in
paragraph 2(c), elect nonmember status and file Beck
objections, process their objections in the manner set
forth in the amended remedy section of this decision.
(e) Reimburse, with interest, Nicholas Klein and other
nonmember bargaining unit employees who file Beck
objections with the Respondent Union for any dues and
fees exacted from them for nonrepresentational activities
for each accounting period since March 14, 1993, in the
manner prescribed in the amended remedy section.
(f) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all records necessary to analyze the amount of
reimbursement to be paid Nicholas Klein and other non-
member bargaining unit employees covered by paragraph
2(e).
(g) Within 14 days after service by the Region, post at
its business offices and meeting halls copies of the at-
tached notice marked “Appendix.”8 Copies of the notice,
8 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
KROGER, INC. 1239
on forms provided by the Regional Director of Region 9,
after being signed by the Respondent Union’s authorized
representatives, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notice to employees and members are customarily
posted. Reasonable steps shall be taken to ensure that
the notices are not altered, defaced, or covered by any
other material.
(h) Sign and return to the Regional Director copies of
the notice for posting by employers, if willing, who are
signatory to the collective-bargaining agreement with the
Respondent Union at places on their premises where no-
tices to employees are customarily posted.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent Union has taken
to comply.
APPENDIX
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT fail to notify unit employees, when we
first seek to obligate them to pay dues and fees under a
union-security clause, of their right to be and remain
nonmembers; and of the rights of nonmembers under
Communications Workers v. Beck, 487 U.S. 735 (1988),
to object to paying for union activities not germane to the
Union’s duties as bargaining agent, and to obtain a re-
duction in fees for such activities.
WE WILL NOT fail to provide unit employees who
have filed a Beck objection with information about the
percentage of the reduction in dues and fees charged to
Beck objectors, the basis for that information and the
right to challenge these figures.
WE WILL NOT maintain in effect rules requiring Beck
objectors to adhere to internal union procedures as condi-
tion precedent to seeking reductions in payments of re-
duced dues or fees.
WE WILL NOT collect from Beck objectors, under the
dues-checkoff provisions of the existing contract, either
dues or fees for nonrepresentational expenses
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL notify all unit employees, in writing, of
their right to be and remain nonmembers; and of the
rights of nonmembers under Communications Workers v.
Beck, supra, to object to paying for union activities not
germane to the Union’s duties as bargaining agent, and to
obtain a reduction in fees for such activities.
WE WILL notify in writing those employees whom we
initially sought to obligate to pay dues or fees under the
union-security clause on or after March 14, 1993, of their
right to elect nonmember status and to make Beck objec-
tions with respect to one or more of the accounting peri-
ods covered by the complaint.
WE WILL process the Beck objections of any employ-
ees whom we initially sought to obligate to pay dues or
fees under the union-security clause on or after March
14, 1993, who elect nonmember status and file such ob-
jections with reasonable promptness after receiving no-
tice of their right to object.
WE WILL, for each accounting period since May 5,
1993, provide Nicholas Klein with information setting
forth the percentage of the reduction in dues and fees
charged to Beck objectors, the basis for that calculation,
and the right to challenge these figures.
WE WILL reimburse, with interest, Nicholas Klein and
other nonmember bargaining unit employees who file
Beck objections with us for any dues and fees exacted
from them for nonrepresentational activities for each
accounting period since March 14, 1993.

UNITED FOOD AND COMMERCIAL
WORKERS LOCAL 1099, AFL–CIO

James Horner, Esq., for the General Counsel.
John M. Flynn, Esq., of Cincinnati, Ohio, for Respondent
Kroger, Inc.
Thomas J. Kircher, Esq., of Cincinnati, Ohio, for Respondent
United Food and Commercial Workers, Local 1099,
AFL–CIO.
Glenn M. Taubman, Esq., of Springfield, Virginia, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. The
charges herein were filed by Nicholas Klein, an individual
against Kroger, Inc. (Kroger, the Employer, or the Company)
and the United Food and Commercial Workers, Local 1099,
AFL–CIO (the Union).
An order consolidating cases, consolidated complaint and
notice of hearing thereon issued on October 28, 1993, alleging
that Respondent Kroger violated Section 8(a)(1) of the Act by
making coercive remarks to employee Nicholas Klein. The
consolidated complaint further alleges that the Union violated
Section 8(b)(1)(A) of the Act by failing to inform unit employ-
ees of the extent of the Union’s obligation under the union-
security provisions of the contract; failed to provide Klein,
pursuant to his request, with information showing the percent-
age of dues spent on representational versus nonrepresenta-
tional expenditures, notwithstanding the fact that he is not a
member of Respondent Union; and maintaining a mandatory
internal appeal procedure for nonmember objectors to the pay-
ment of dues and fees; and instituting a charge and rebate pro-
cedure for employees who elect to withdraw their membership
or fail to become members of Respondent Union. Further, that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1240
the Union violated Sections 8(b)(1)(A) and (2) of the Act by
continuing to collect dues pursuant to a contractual checkoff
provision with Kroger from nonmember employees in the col-
lective-bargaining unit for nonrepresentational expenditures. A
hearing was held before me on October 3, 1994. Briefs have
been timely filed by the General Counsel, the Charging Party,
Respondent Union and Respondent Employer, which have been
duly considered.
FINDINGS OF FACT
I. EMPLOYER’S BUSINESS
Employer, a corporation, is engaged in the operation of retail
grocery stores. During the past 12 months, Respondent Em-
ployer, in conducting its operations, derived gross revenues in
excess of $500,000, and during this period purchased and re-
ceived at its Cincinnati, Ohio facility, goods valued in excess of
$5,000 directly from points outside the State of Ohio. The
Complaint alleges, the answer admits, and I find that the Em-
ployer is an employer engaged in commerce within the mean-
ing of Sections 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the Respondent admits, and I find that
the Union is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES1
Kroger is a retail supermarket chain. The Union represents,
under contract, a unit of drug/general merchandise employees
at various stores located in Ohio and Indiana.
The effective dates of the most recent contract are October
31, 1993, through June 13, 1998. The effective dates of the
prior contract were June 17, 1990, through October 30, 1993.2
At all times material, articles 3.1 and 3. 2, the union shop and
checkoff provisions of the contract read as follows:

3.1 Union Shop—It shall be a condition of employ-
ment that all employees of the Employer covered by this
Agreement who are members of the Union in good stand-
ing on the execution date of this Agreement shall remain
in good standing, and those who are not members on the
execution date of this Agreement shall, on the sixty-first
(61st) day following the beginning of such employment,
become and remain members in good standing in the Un-
ion. It shall also be a condition of employment that all
employees covered by this Agreement and hired on or af-
ter its execution date shall, on the sixty-first (61st) day fol-
lowing the beginning of such employment become and
remain members in good standing in the Union. The Em-
ployer may secure new employees from any source what-
soever. The term and requirement of “member in good
standing,” as used herein, is limited to fulfilling the finan-
cial obligations imposed by law.
During the first sixty (60) calendar days of employ-
ment, a new employee shall be on trial basis and may be
discharged at the discretion of the Employer, and such dis-

1 Upon motion at the hearing, the answer of both Respondent Em-
ployer and Respondent Union were amended to admit par. 8 of the
complaint alleging that in 1988, Klein executed a dues-checkoff au-
thorization. The Employer also was granted leave to amend its answer
to admit that portion of par. 9 of the complaint, which alleges that Klein
resigned his union membership by letter dated May 4, 1993.
2 All dates refer to 1993, unless otherwise indicated.
charge shall not be subject to the Grievance and Arbitra-
tion Procedure.
3.2 Checkoff—The Employer agrees to deduct weekly
Union dues, initiation fees and uniform assessment from
wages of employees in the bargaining unit, who provide
the Employer with a voluntary, written authorization
which shall not be irrevocable for a period of more than
one year, or beyond the termination date of this Agree-
ment, whichever occurs sooner. Such deductions will be
made by the Employer from wages of employees and will
be transmitted to the Union by the tenth (10th) of the fol-
lowing month.
In the event no wages are then due the employees, or
are insufficient to cover the required deduction, the deduc-
tion for such week shall nevertheless be made from the
first wages of adequate amount next due the employee,
and thereupon, transmitted to the Union.
Upon written request by an authorized representative
of the Union, the Employer agrees to dismiss any em-
ployee within five (5) days from receipt of such request
for failure to comply with Article 3, Section 3.1, limited
only by the Labor Management Relations Act of 1947.

Nicholas Klein is a part-time cashier employed by Kroger at
its Harrison Avenue store in Cincinnati, Ohio. Klein was hired
in May 1988, at which time he joined the Union and executed a
dues-checkoff authorization under the terms of the existing
collective-bargaining agreement. He worked until about Feb-
ruary or March 1990, at which time he left for health reasons,
returning as a part-time cashier later in 1990.
Sometime in the spring of 1993, while listening to radio talk
show host Rush Limbaugh, he became aware of a U.S. Su-
preme Court decision holding that he could resign his union
membership and pay a reduced “core membership” fee in place
of union dues. Thereafter, he contacted and was subsequently
advised by the National Right To Work Legal Defense Founda-
tion.
By letter dated May 4, Klein resigned his union membership.
That letter reads as follows:

In accordance with the U.S. Supreme Court’s decision
in Patternmakers v. NLRB, I hereby resign as a member of
the United Food Commercial Workers Local #1099, effec-
tive immediately.
Under the U.S. Supreme Court’s decision in Commu-
nication Workers of America v. Beck, I hereby declare my-
self protected by financial-core status as defined in the
aforementioned decision of the U.S. Supreme Court.
Please return any reduced dues owed to me, and
charge me for the new appropriate amount in compliance
with the requirements of Beck.

At this time, Klein was having two separate contributions
checked off as “Union Dues” deducted from his pay on a
weekly basis. One deduction was $4.40 and the second for 64
cents.
By letter dated June 3, 1993, Thomas Bierman, union office
manager, responded as follows:

I am in receipt of your letter and the matter has been
taken under advisement.
I am presently away on my honeymoon. However, I
will respond to you as soon as possible upon my return to
the office.
KROGER, INC. 1241
I appreciate your attention to this letter.

By letter dated August 16, 1993, Bierman again wrote to
Klein:

Your letter of May 4, 1993 in which you resign from
Local 1099 and in which you request “financial core
status” as defined in the United States Supreme Court’s
decision in Communications workers of America v. Beck,
is acknowledged. Please forgive the delay in my response.
You are the first member in the history of Local 1099, a
local union whose current membership exceeds 13,000
members, who has resigned from our Union under the Pat-
termakers [sic] decision. You are also the first member to
request financial core status under the Beck decision. Ac-
cordingly, it has taken me some time to determine the
proper procedure to follow. I apologize for any delay and
hope it has caused no inconvenience for you.
Under the law, your resignation tendered in your letter
of May 4, 1993, takes effect the day after the postmark of
the envelope in which the letter was contained. In your
case, your letter was postmarked May 4, 1993 which
means that your resignation became effective the follow-
ing day, May 5, 1993.
Calculations of the reduced fee which you are request-
ing under the Beck decision have been made by an ac-
countant and a breakdown of the expenditures and calcula-
tions for the fiscal year 1991 will be furnished to you if
you object. Based on these calculations, your reduced fee
would be 92.7 percent of normal dues.
Apply this percentage to you, the reduction would be
.33¢ per week. I arrived at this amount by considering the
normal dues per week and multiplying that by the percent-
age mentioned above, with the difference being .33¢.
I am enclosing a check in the amount of $5.14. This
check represents a difference between the reduced amount
and regular dues for the months of June, July and August
and as well as this difference pro-rated for the days in the
month of May from the effective date of your resignation
forward. I will advise the Kroger Company, your em-
ployer, of the reduced dues amount so that this amount,
rather than the normal dues, will be deducted from your
pay. However, it is necessary that you also authorize the
Company to do this.
The reduced fee represents only that portion of Local
1099’s expenditures devoted to collective bargaining, con-
tract administration, grievances and arbitration, and other
matters affecting wages, hours, and other conditions of
employment. These are called “chargeable” expenditures
and will include, for example: the costs of negotiations
with employers; informal meetings with employer repre-
sentatives; communication of work-related issues with
employees; handling employees’ work-related problems
through the grievance and arbitration procedure; lobbying
on matters directly related to conditions of employment;
and union administration.
The cost of such activities as community services, lob-
bying on issues that benefit represented employees and
their families as citizens rather than as workers, recruiting
members, organizing and member-only benefits are called
“non-chargeable” expenditures. The fee reduction will
represent these expenditures.
The reduced fee will be reviewed annually and ad-
justed, if necessary.
Service fee payers have the right to contest the calcula-
tion of the reduced fee and to obtain a review of the calcu-
lation. This procedure is initiated by submitting: (1) a re-
duction request for a further reduction in the fee and the
amount of the reduction sought; and (2) requesting a hear-
ing to determine the accuracy of the reduction. Such a
challenge must include the employee’s name, home ad-
dress, Social Security number, job title, department, work
location and office and home phone numbers. The request
for reduction and hearing request must be received by the
local union at 913 Lebanon Street, Monroe, Ohio 45050
within 30 days of the date of this letter.
The first step of the appeal process is a hearing before
Local 1099’s Executive Board. This hearing will be held
within 60 days of the receipt of the challenge and multiple
challenges may be consolidated. Those requesting an ad-
ditional fee reduction will have an opportunity to explain
to the Board why they believe their fee should be reduced
further. The Board will consider all of the evidence and
issue a decision in writing within 15 days of the hearing.
If the challenger is not satisfied with the Executive
Board’s decision, he or she must appeal to the local union
in writing within 15 days of the date of the Executive
Board’s decision. The matter then will be submitted to ar-
bitration before an impartial fact-finder appointed by the
American Arbitration Association. Challenges may be
consolidated into a single hearing. The hearing will be
conducted under the AAA’s Rules for Impartial Determi-
nation of Union Fees, and will be held within 120 days of
the date the challenge is received at the local union office.
Local 1099 will pay the arbitrator’s fee.
Once a written challenge is received, Local 1099 will
placed an amount equal to the challenger’s requested re-
duction in the reduced fee into an interest-bearing escrow
account. It shall remain in that account until the impartial
fact-finder issues a decision. Should the decision lower
the percentage of chargeable expenditures, the appropriate
portion of the escrowed fees, plus interest, will be re-
funded to the challenger. All reduced service fee payers
will then pay the adjusted fee amount as determined by the
fact-finder. If the fact-finder approves the union’s calcu-
lations, the escrowed money and interest will revert to the
local union.
If you have any questions about any of the matters
covered in this letter, please contact me at the local union
office.

Klein was not satisfied with Bierman’s response and ex-
pressed himself by letter dated September 2, reading:

I am in receipt of your letter dated August 16, 1993.
I do object, under CWA v. Beck, to your 92.7% calcu-
lation, and I request that you immediately send me a de-
tailed breakdown of how that number was calculated, for
all levels of the union hierarchy including the UFC Inter-
national and all other facilities.
Additionally, while I do challenge your 92.7% figure, I
must inform you that I have no intention of pursuing any
hearing or other internal “appeal” before the Executive
Board of the union, and I do not believe that I can be re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1242
quired to do so under the law. Rather, I will pursue my
challenges in a forum of my own choosing.
In any event, I trust that you will promptly send me the
detailed financial disclosure discussed above.

It is undisputed that Klein was never provided any additional
information by the Union in response to this letter. Thereafter,
Klein’s paycheck stubs reflect two separate deductions for
“UNION DUES” of $4.07 and 66 cents.
Upon receipt of Bierman’s August 16 letter, Klein called
Bierman to inquire about the uses for which the second dues’
payment of 66 cents (raised from 64 cents) was being used.
Klein testified that Bierman told him that the purpose was to
support organizing and advertising activities of the Union.3
Klein was also told that the Beck information he sought would
not be ready until October of 1993.
It appears that normally, once an employee is hired, he exe-
cutes a union membership application and dues-checkoff au-
thorization at the place of his employment. Kathy Oberschlake,
office manager for the Union, testified that if, for whatever
reason, this was not done at the workplace, those documents,
along with a letter captioned “WELCOME TO UFCW LOCAL
1099” is sent to the employee. This letter, in use since about
June 1992, generally extols the benefits of Union membership
and contains the following two paragraphs relevant to this case:

You may also want to know that in accordance with
court decisions, you have the right to refrain from being a
member of the Union and to pay an initiation fee and a
monthly dues fee that is somewhat less than the full initia-
tion fee and regular monthly dues. Those fees only reflect
the Union’s cost of representing the employees in the bar-
gaining unit. Please notify us if this is the route you
choose, and you will be provided additional information.
You should also be aware, however, that exercising
this options means that you would not have the right to
vote on your contract or to participate in the development
of contract proposals of Local Union elections, You will
also lose other benefits of Union membership. Local
1099 hopes that you will choose to become an active
member and strengthen the Union’s ability to represent
you and your co-worker’s, rather than weakening the Un-
ion and making it more difficult to represent you. In our
Democratic Union the decision is yours.
A. The 8(a)(1) Allegation
After his resignation from the Union, sometime in mid-June
1993, Klein spoke with Lisa Creamer, comanager of the Harri-
son Avenue store. He told Creamer that he had resigned from
the Union and was now paying reduced dues and asked if they
would get into trouble over this. Klein could not recall her
response but testified that she did not say he would have to pay
full dues or remain a union member in order to retain his job,
but that she did say she had not heard about having a choice of
not joining the Union or having reduced fees.4
B. Discussion and Analysis
1. Failure to inform employees
The General Counsel contends that Respondent violated Sec-
tion 8(b)(1)(A) of the Act in failing to inform unit employees of

3 Bierman did not testify and, having reviewed the entire record, I
credit Klein’s unrebutted testimony.
4 Since Creamer did not testify, I credit Klein’s unrebutted account.
the extent of their obligations as unit employees under the un-
ion-security provisions of the contract. A brief review of rele-
vant precedent is in order.
The union-security provisos to Section 8(a)(3) of the Act
provide, inter alia, that employees may be required, as a condi-
tion of their employment, to become and remain union mem-
bers, including the obligation to pay union dues and initiation
fees.
In General Motors,5 the Supreme Court interpreted the re-
quirement that employees become and remain union members
under the provisos to Section 8(a)(3). In General Motors, the
Court held that employees need not retain union “membership”
in order to retain their employment so long as they pay the
equivalent of union fees and dues under what is known as an
agency shop agreement. The Court held: “It is permissible to
condition employment upon membership, but membership,
insofar as it has significance to employment rights, may in turn
be conditioned only upon payment of fees and dues. ‘Member-
ship,’ as a condition of employment, is whittled down to its
financial core.”6
With respect to the notification of employees, the Board in
Electronic Workers IUE Local 444 (Paramax Systems Corp.),
311 NLRB 1031 (1993), held that where a collective-
bargaining agreement’s union-security provisions require that
unit employees become and remain “members of the union in
good standing” as a condition of their employment, each unit
employee must also be apprised, in writing, of his or her Gen-
eral Motors rights, i.e., “that the only required condition of
employment under the union-security clause is the tendering of
uniform initiation fees (if any) and dues.”7
In the Beck case,8 the Supreme Court went beyond its hold-
ing in General Motors and concluded that a union could not,
over the objection of dues-paying nonmember employees, exact
or expend dues or initiation fees beyond those necessary for the
union to perform its duties as a collective-bargaining represen-
tative of the unit employees. However, even though Paramax
was decided after Beck, the issue raised by Paramax was
whether or not unit employees had been properly apprised, not
of their rights under Beck, but only of their rights under Gen-
eral Motors. The Board specifically noted that it was not decid-
ing issues raised by the Beck case.9
In short, the issue left unresolved by the Paramax case is
raised by the instant case, to wit, did the Respondent violate
Section 8(b)(1)(A) of the Act by maintaining a union-security
provision requiring that unit employees become and/or remain
members in good standing without apprising them of their Beck
rights to pay only for those activities germane to its function as
collective-bargaining representative of unit employees; i.e.,
collective bargaining, contract administration, and grievance
adjustment. In my opinion, the Union has failed to provide
such notice. It requires no deep analysis to conclude that under
both Beck and Paramax, unit employees must be advised of
their rights. The Union has a fiduciary duty to provide such
notice. There exists a direct and controlling analogy between
Paramax and the instant case. Notice to unit employees was
required in Paramax and so also was notice of Beck rights re-
5 NLRB v. General Motors, 373 U.S. 734 (1963).
6 N.L.R.B. v. General Motors, supra, 373 U.S. at 742.
7 311 NLRB at 1043.
8 487 U.S. 735 (1988).
9 311 NLRB at 1033 fn. 6 and 1037 fn. 30.
KROGER, INC. 1243
quired in the instant case. It was not provided, and the Union’s
failure in this regard violates Section 8(b)(1)(A) of the Act..
However, Respondent contends that General Counsel had a
burden, which it failed to meet, of showing that the union em-
ployees in the instant case, except for Klein, were not advised
of their Beck rights by the Union. This contention lacks merit.
While the union-security provisions in the instant case, as in
Paramax, appear to be facially valid and lawful, when such
union-security provisions exist, there is also an affirmative
obligation arising from its duty of fair representation to unit
employees for the Union to advise unit employees of their Beck
rights, which the Union in this case has failed to provide. It is
not the General Counsel’s burden to show that each individual
unit employee was not given the requisite notice in order to
make its case. The Union has an affirmative fiduciary duty to
provide notice and it failed to do so.
Respondent also argues that it distributed to new employees,
beginning in about June 1992, an application for dues-checkoff
authorization to which was attached an informational covering
letter, including the language set out above, concerning unit
employees’ rights to core membership and the financial obliga-
tions of such an election. Respondent argues that this notice is
sufficient to provide whatever notice may be required to inform
unit employees concerning their right to opt for “core” mem-
bership. I disagree. Even assuming, arguendo, that the notice
was sufficient, it was distributed only to new employees, be-
ginning in about June 1992, for the purpose of obtaining dues-
checkoff authorizations. It is totally insufficient to satisfy writ-
ten notice requirements as to any employees hired prior thereto
or who may not have seen the letter.
Respondent also argues that the labor agreement itself is suf-
ficient notice of any Beck right since it defines the term and
requirement of “membership in good standing” as limited to
“fulfilling the financial obligations imposed by law.” I do not
agree. Respondent’s obligation requires written notice advising
each unit employee that dues and initiation fees may not be
exacted or expended on activities beyond the Union’s collec-
tive-bargaining function. In my opinion, the contract language
cited above is general, unfocused, and totally insufficient to
meet that obligation.
2. Failure to provide financial documents
The General Counsel and the Charging Party contend that
the Union violated Section 8(b)(1)(A) of the Act by failing to
provide to Klein, upon his request, financial documentation
showing what percentage of his union dues was spent on repre-
sentational as opposed to nonrepresentational items.
In Beck, the Supreme Court stated:

We conclude that § 8(a)(3), like its statutory equivalent, § 2,
Eleventh of the RLA authorizes the exaction of only those
fees and dues necessary to “performing the duties of an exclu-
sive representative of the employees in dealing with the em-
ployer on labor management issues.” Ellis, 466 U.S. at 448.10

This proposition having been established, it would appear
that financial core members would be entitled to know whether
or not any of the monies being exacted from them for initiation
fees or dues are being used for nonrepresentational matters
prohibited by Beck as opposed to those used for legitimate rep-
resentational purposes, which would be lawful. It seems to me

10 487 U.S. at 762, 763.
that basic fairness demands that a core member be able to de-
termine whether or not money being taken from him pursuant
to a dues checkoff is being used for lawful or unlawful pur-
poses and he should be provided with sufficient information to
enable him to make that determination.
While Beck does not deal with procedural requirements, it
does contemplate, as set out above, that only those fees used for
representational purposes may be “exacted” from core mem-
bers. It would seem to follow that some sort of preexaction or
precollection information be provided upon request to unit
employees opting for financial core membership.
This conclusion is supported by the Supreme Court’s deci-
sion in Chicago Teachers Union Local 1 v. Hudson, 475 U.S.
292 (1986), where the Court held that potential objectors were
entitled to “sufficient information to gauge the propriety of the
Union’s fee. Leaving the nonunion employees in the dark about
the source of the figure for the agency fee—and requiring them
to object in order to receive information—does not adequately
protect the careful distinctions drawn in Abood” [footnote omit-
ted].11
The fact that Hudson was decided under First Amendment
criteria certainly does not preclude a finding that the same un-
ion procedures may also be viewed as unlawful under Section
8(b)(1)(A) of the Act. While I recognize that the failure to
provide sufficient information in Hudson was held by the Court
as a failure to afford core members the safeguards provided by
the First Amendment to the Constitution, the concept of a un-
ion’s duty of fair representation under Section 8(b)(1)(A) of the
Act is capable of affording to employees many of the same
protections. While the analogy between a core member’s First
Amendment rights and the right to fair representation under
Section 8(b)(1)(A) of the Act may not be direct, concepts of
basic fairness are common to both. In my view, the Union’s
duty of fair representation includes the obligation to provide
members with sufficient information to enable them to form a
judgment about the propriety of the fees they will be charged
for their representation.
In these circumstances, I conclude that Klein was entitled to
more information than he received. Respondent’s letter of
August 16, was conclusionary and summary in form, simply
reciting a reduced fee of 92.7 percent of normal dues for vari-
ous activities described as chargeable and stating that the 7.3
percent (reduced fee) was for nonchargeable expenditures as set
out in the letter. This information was an inadequate response
and did not meet the minimal standards set out in Hudson, su-
pra, which I conclude to be appropriate criteria for application
in the instant case.
Respondent also argues that no violation should be found
based on its failure to provide information in circumstances
where Klein had been advised that the Beck information he
sought would be provided at a later date and he chose not to
wait for that information but, instead, filed an unfair labor prac-
tice charge without following the internal appeal procedures set
out in Bierman’s letter of August 16. This contention is with-
out merit. Klein was not obliged to wait until the Union de-
cided to give him the information before filing a charge.
Moreover, the record discloses that the information was never
provided, and Klein was fully justified in filing the unfair labor
practice charge. Nor was Klein obliged to follow the internal
procedures established by Bierman’s letter of August 16 in
11 Hudson, supra at 306.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1244
order to obtain the information, particularly where the Union’s
maintenance of these procedures, as set out below, were them-
selves unlawful.
Moreover, there was a second weekly deduction for dues in
the amount of 66 cents for which no information at all was
provided, not even mentioned in Bierman’s letter of August 16,
1993. Upon later inquiry, Klein was advised by Bierman that
the second dues’ deduction in the amount of 66 cents was for
“advertising” and “organizing.” Clearly, these are not allow-
able expenses under Beck since they are not related to the rep-
resentation of bargaining unit employees. In this regard, see
Ellis v. BRAC, 466 U.S. 435 (1984).
In summary, Respondent Union violated Section 8(b)(1)(A)
of the Act by failing to provide Klein with sufficient informa-
tion, thereby denying him the opportunity to adequately evalu-
ate the propriety of his dues or to intelligently protest.
3. Internal union appeal and rebate procedure
As noted above, any core member challenging the reduced
fee calculation was obliged to submit to the Union a request for
additional reduction and the amount of the further reduction
sought, and to request a hearing before the union executive
board where the challenger would be provided an opportunity
to explain his or her position. The challenger must then appeal
any adverse decision to the Union in writing, and thereafter the
matter would be submitted to an arbitrator appointed by the
AAA. The procedure set out by the Union also provides that
upon receipt of a core member’s challenge, an amount equal to
the additional reduction requested by the challenger would be
escrowed and dispersed appropriately pursuant to the final reso-
lution of the amount.
The General Counsel and the Charging Party contend that
the Union may not require core members to observe these in-
ternal union appeals in order to contest the amount of any dues’
reduction. I agree.
Klein resigned his Union membership on May 4, 1993.
Thereafter, he was obligated only to pay a reduced fee for his
representation by the Union. Klein was not a full union mem-
ber, but was a core member. He was not, in my opinion, obli-
gated to follow internal procedures established by the Union.
Moreover, this is not union contract matter. Questions concern-
ing the refusal to provide financial information to core mem-
bers about the propriety of any reduced fee is not a matter
within the terms of the contract.
The General Counsel and the Charging Party also allege as
unlawful Respondent’s institution of a “charge and rebate”
procedure for core employees. The procedure set out in Re-
spondent’s letter of August 16, 1993, contemplates the collec-
tion of the entire reduced fee amounts.12 As noted above, core
members dissatisfied with these reduced fees may protest and
the reduction sought would be placed in escrow pending, ulti-
mately, an arbitrator’s decision. In my opinion, the charge and
rebate process also violates Section 8(b)(1)(A).
In Beck, supra, the Supreme Court held, inter alia, that un-
ions were entitled, as noted above, to “the exaction of only
those fees and dues necessary to ‘performing the duties of an
exclusive representative of the employees in dealing with the
employer on labor management issues.’ Ellis, supra, 466 U.S.
at 448.” In Hudson, supra at 310, the Court concluded that in
order for the Union to collect agency fees, it was first required
to provide objectors with an “adequate explanation for the basis

12 For Klein, this was only 33 cents per week less than full dues.
of the fee.” In my opinion, this is an appropriate procedural
safeguard.13 Klein, although he made the request, was never
provided with an “adequate explanation” and, in my opinion,
the Union was required to provide such an explanation. Having
failed to do so, the Union could not lawfully “exact” or “col-
lect” any reduced fees. Thus, by maintaining internal proce-
dures, including the charge and rebate procedures discussed
above, Respondent Union violated Section 8(b)(1)(A) of the
Act.
I further conclude that the exaction of such dues, without
providing Klein any adequate explanation for the basis of its
computations constitutes discrimination in violation of Section
8(b)(2) of the Act.
Respondent also argues that any reduced fees acquired under
the dues-checkoff procedures were obtained with the permis-
sion of the Charging Party and therefore were proper. I do not
agree. As a core member, Klein was entitled upon request, as
set out above, to information sufficient to enable him to evalu-
ate the amount of the reduced fee. This information was not
provided. Klein has continuously objected to the use of dues or
fees for nonrepresentational purposes. In these circumstances,
it is my opinion that Respondent could not thereafter lawfully
continue to take the full unilaterally arrived at reduced fee
amounts, even though ultimately providing a rebate for any
additional reductions, and Klein’s dues-checkoff authorization
cannot be interpreted as providing Klein’s permission to do so.
In summary, whatever uncertainties may have existed as to
the legal rights of core members, these doubts have been laid to
rest. The right to opt for core membership and pay reduced
fees was established in Beck. It follows, as a matter of basic
fairness, that the Union should not be able to frustrate or inter-
fere with those rights by erecting procedural obstacles. In my
opinion, requiring core members to observe an internal union
appeals process as a precondition to impartial consideration of
reduced fee protests is unlawful, and, in those circumstances,
continuing to receive dues under the checkoff provisions of the
contract violates Section 8(b)(1)(A) and (2) of the Act.
4. The 8(a)(1) Allegations
With respect to the contention, as alleged in the complaint,
that Store Manager Lisa Creamer told Klein that the bargaining
unit “did not have any choice other than to become members of
Respondent Union and pay dues and initiation fees,” I con-
clude that the record simply does not support this allegation.
At worst, even fully crediting Klein, he was told by Creamer
only that she had not “heard” about any choice. This is tanta-
mount to answering that she was unaware of the Beck case.
Simply responding to Klein that she was unaware does not
violate the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent Union set forth in section
III above, occurring in connection with Respondent Union’s
operations described in section I above, have a close and inti-
mate relationship to trade, traffic and commerce among the
13 As noted above, while Hudson was decided under Art. I of the
Constitution, it is my opinion that the conclusions reached in that case
are appropriate resolutions to the issues raised by the instant case even
though the issues raised herein arise under Sec. 8(b)(1)(A) of the Act as
violations of the Union’s duty to fairly represent all unit employees.
KROGER, INC. 1245
several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent violated Sections 8(b)(1)(A)
and (2) of the Act, I shall recommend that it cease and desist
therefrom and from engaging in any like or related conduct and
that it post an appropriate notice, signing additional notices for
posting by the Employer, should the Employer so desire. Spe-
cifically, I shall recommend that Respondent be ordered to
notify each unit employee, in writing, of their employee rights
under the Beck case as set out below in the “ORDER.”
I have concluded that Respondent Union was obliged, upon
request, to provide Klein after he resigned from the Union and
opted for core status with an adequate explanation of the basis
for his reduced dues. Since it appears that full reduced dues, in
amounts determined by the Union, have been taken and con-
tinue to be taken from Klein’s pay under his dues checkoff, any
appropriate remedy should include reimbursement and I shall
order that Respondent reimburse Klein for all such reduced fees
collected since May 4, 1993. Such reimbursement, with inter-
est, shall be computed in the manner described in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), and F. W.
Woolworth Company, 90 NLRB 289 (1950).
Further, since I have concluded that either 66 or 64 cents was
being checked off for unlawful nonrepresentational purposes, I
shall recommend that Klein be reimbursed for those amounts.
CONCLUSIONS OF LAW
1. Respondent Kroger, Inc., is an employer engaged in com-
merce within the meaning of Sections 2(6) and (7) of the Act.
2. Respondent United Food and Commercial Workers, Local
1099, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. At all times material herein, the Union has represented
under contract a unit of drug/general merchandise employees at
various stores located in Ohio and Indiana.
4. Respondent violated Section 8(b)(1)(A) of the Act by
maintaining a union-security clause in effect requiring that as a
condition of employment, employees become and remain
“members in good standing of the Union” without informing
unit employees that they are only obligated to pay those fees
and dues necessary for the Union to perform the duties of an
exclusive representative of the employees in dealing with the
Employer on labor management issues.
5. Respondent violated Section 8(b)(1)(A) of the Act by fail-
ing to provide Nicholas Klein upon his request, at the time he
resigned from the Union and elected core member status, with
information providing an adequate explanation for the basis of
his reduced fee.
6. Respondent violated Section 8(b)(1)(A) of the Act by
maintaining in effect rules requiring core member unit employ-
ees to adhere to internal union procedures as a condition prece-
dent to seeking reductions and payments of reduced fees.
7. Respondent, since May 4, 1993, has been and is violating
Section 8(b)(1)(A) and (2) of the Act by collecting from Nicho-
las Klein, under the dues-checkoff provisions of the contract,
reduced fees in amounts unilaterally determined by the Union.
[Recommended Order omitted from publication.]