Local 1445, Commerical Workers

National Labor Relations Board - Board Decisions

Feb 12, 1980

247 N.L.R.B. 1031 (N.L.R.B. 1980)

LOCAL 1445, COMMERCIAL WORKERS
Local 1445, United Food and Commercial Workers
International Union, AFL-CIO' and Gallahue's
Supermarkets. Case 1-CB-4284
February 12, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On July 12, 1979, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Charging Party Employer filed exceptions and
supporting briefs. Respondent Union filed an answer-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that, in the
circumstances, Respondent Local did not violate
Section 8(b)(2) and ()(A) of the Act by demanding
that the Employer discharge employees who had not
paid union dues or executed checkoff authorizations
as required by valid union-security and checkoff
provisions and by threatening the Employer with
picketing if it did not discharge employees not in
compliance with such contractual requirements. We
disagree with the Administrative Law Judge's failure
to find that Respondent violated Section 8(b)(2) of the
Act.2
The essential facts are undisputed. The Employer
and Respondent entered into an initial collective-
bargaining agreement that was ratified by the employ-
ees of the Employer on May 30, 1978.' Article III of
the agreement contains a union-security clause requir-
ing all full-time and part-time employees to become
union members no later than the 31st day following
the agreement's execution date or the 31st day of their
employment. Article III, section 3, is a checkoff
provision which, in pertinent part, states that the
"Employer . . . will forward to the Union a copy of
I The name of Respondent Union. formerly Retail Clerks International
Union. AFL-CIO. is amended to reflect the change resulting from the
merging of Retail Clerks International Union and Amalgamated Meatcutters
and Butcher Workmen of North America on June 7. 1979.
We deem it unnecessary in the circumstances of this case to make an
8(bXIlA) finding. The remedy based on the 8(b)(2) finding provides a
complete remedy for Respondent's conduct.
'All dates herein refer to 1978.
247 NLRB No. 151
the completed checkoff authorization card for each
new hire at the end of each work week" which "shall
include the employee['s] name, address, social security
number, classification, date of employment, and date
of birth." Section 5 of article III additionally provides
that, if an employee fails to tender the dues or
initiation fee in accordance with the union-security
clause, Respondent should notify the Employer in
writing and, upon receipt of such notice and not more
than 7 days thereafter, the Employer should discharge
that employee.
In mid-July, Respondent's business agent, Thomp-
son, provided the managers of the Employer's Stone-
ham and Wakefield stores with the necessary forms
for union membership and dues checkoff and asked
them for their cooperation in obtaining the signatures
of employees on these documents. By September 5 or
6, the Employer had received checkoff authorizations
from only 5 of its 60 to 65 employees.4 Another 15
employees had signed checkoff authorizations as a
result of direct contact with Respondent's representa-
tives.
On September 6, Respondent sent a letter to the
Employer's president, Frank Gallahue, notifying him
that a "great many" employees had failed to become
union members and pay the dues required under the
collective-bargaining agreement's union-security pro-
vision. The letter also insisted that the Employer
comply with article III, section 5, of that agreement
requiring the Employer to discharge these employees
within 7 days if they still had not tendered their dues
and fees. It is apparent that, before sending this letter
to the Employer, Respondent did not attempt to
ascertain the names of or contact the delinquent
employees. While almost one-half of the Employer's
employees attended the May 30 ratification vote
during which the union-security and dues-checkoff
provisions were explained,' it is also evident that
before seeking to enforce the union-security clause
Respondent made no effort to see that all employees
were, in fact, informed of their financial membership
obligations and the consequences of their failure to
meet these obligations.
In our judgment, the record demonstrates that
Respondent's September 6 letter began a pattern of
unlawful conduct designed to discriminate against
those employees who failed to meet their union-
security obligations. Thus, on September 8, Respon-
dent's president, Crowe, called the Employer's presi-
' This includes only employees of the Stoneham Store. Sometime in July. a
fire forced the closing of the Wakefield store.
' At the time of the ratification meeting, the Employer's Wakefield store
was still open and the Employer had a total of about 100 employees. As the
Administrative Law Judge recognizes, about 45 employees attended the May
30 vote. The Administrative Law Judge therefore inadvertently erred in
stating that "three-quarters" of the employees attended the ratification vote.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent, Gallahue, to ask if he had received the Septem-
ber 6 letter. When Gallahue said that he had, Crowe
stated that if the "people didn't sign up their checkoff
cards that in seven days they would have to be fired."
After Gallahue then informed Crowe that the employ-
ees had filed a union deauthorization petition and that
an official of the National Labor Relations Board had
stated that employees could not be discharged while
the petition was pending, Crowe told Gallahue to
collect the dues or discharge the nonpaying employees
"by Monday or we will have a picket line out in front
of your store."
On September 11, Respondent's president sent
another letter to the Employer referring to the
September 6 letter and demanding the "discharge [of]
all employees who have not become members of the
Union in good standing." The letter also specifically
requested that the Employer "discharge any employee
in the bargaining unit who has not executed a checkoff
authorization which may be in your possession." On
September 20, Respondent filed a grievance with the
Employer demanding the discharge of any employee
who had not complied with the union-security provi-
sions of the collective-bargaining agreement.'
It is apparent therefore that, after its initial attempt
to enforce the union-security provisions of the agree-
ment, Respondent made two specific demands upon
the Employer that the employees who had not paid
their dues be discharged.
Thus, before advising the employees specifically of
their obligations under the agreement, Respondent
sought to have the Employer discharge any employee
who had not met those obligations. It was not until its
October 21 letter sent to all employees that Respon-
dent attempted to explain to each the obligations
under the agreement's union-security provision and to
inform them that dues could be tendered either
through checkoff or by direct payment to Respondent.
This letter, however, does not redress Respondent's
unlawful conduct of September. Rather, we conclude
that Respondent's demands that the Employer dis-
charge any employee not in compliance with the
agreement's union-security provisions were intended
to cause an employer to discriminate against employ-
ees in violation of Section 8(a)(3), thus violating
Section 8(b)(2) of the Act.'
CONCLUSIONS OF LAW
I. The Respondent, Local 1445, United Food and
Commercial Workers International Union, AFL-
^ On October 3, Respondent submitted the grievance to arbitration.
See Distillery. Restifying, Wine and Allied Workers' International Union of
America. Local Union 38. AFL-CIO (Schenley Distillers, Inc.), 242 NLRB 370
(1979). In that case discharges actually occurred. Thus, the violation found
was of Sec. 8(b)2) and (I)(A).
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
2. By demanding that employees be discharged for
failing to pay union dues and fees required as a
condition of employment under the terms of the
collective-bargaining agreement notwithstanding that
Respondent had failed to advise employees of their
specific obligations under the union-security provi-
sions of the collective-bargaining agreement, Respon-
dent has attempted to cause discharge in violation of
Section 8(a)(3) of the Act and thereby has violated
Section 8(b)(2).
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, we shall order that it cease and
desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Local 1445, United Food and Commercial Workers
International Union, AFL-CIO, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Demanding that employees be discharged for
failing to pay union dues and fees without first
advising employees of their specific obligations under
the union-security provisions of the collective-bargain-
ing agreement.
(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 necessary to
effectuate the policies of the Act:
(a) Post at its business offices, union halls, meeting
halls, and any other place where it customarily posts
notices to members copies of the attached notice
marked "Appendix."' Copies of said notice, on forms
provided by the Regional Director for Region I, after
being duly signed by its representative, shall be posted
by Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to members are customarily posted. Reason-
able steps shall be taken by Respondent to insure that
' In the event that this Order is enforced by a Judgement of a United States
Court of Appeals, 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."
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LOCAL 1445, COMMERCIAL WORKERS
said notices are not altered, defaced, or covered by any
other material.
(b) Forward signed copies of said notice to the
Regional Director for Region I for posting by Galla-
hue's Supermarkets, if it is willing, in places where
notices to its employees are customarily posted.
(c) Notify the Regional Director for Region , in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT demand that employees be
discharged for failing to pay union dues and fees
without first advising employees of their specific
obligations under the union-security provisions of
the collective-bargaining agreement.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed them in Section 7 of the Act.
LOCAL 1445, UNITED FOOD AND
COMMERCIAL WORKERS INTERNATIONAL
UNION, AFL-CIO
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge: This
case was heard before me on April 16, 1979, in Boston,
Massachusetts. The complaint alleges that Respondent
violated Section 8(b)(2) and 8(b)(1)(A) of the Act, by
demanding that the employer discharge employees who had
not paid union dues or executed checkoff authorizations as
required under valid union-security and checkoff clauses,
and threatening the employer with picketing if it did not
discharge employees who did not comply with such contrac-
tual requirements, because these demands were made with-
out "adequate prior notice by Respondent to the employees
. . of their specific financial obligations to the Union."
Respondent denied the essential allegations of the complaint.
Based on the entire record herein and the briefs of the
parties, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Gallahue's Supermarkets (hereinafter the Employer) is a
Massachusetts corporation with its principal office and place
of business at 259 Main Street, Stoneham, Massachusetts,
' At or about this time, there was a fire in the Employer's Wakefield store
and that store was closed.
where it is engaged in the operation of a retail grocery store.
In the course and conduct of its business the Employer
purchases and transports in interstate commerce large
quantities of groceries from and through various States of
the United States other than the Commonwealth of Massa-
chusetts. The Employer has a gross annual volume of
business in excess of $500,000. Accordingly, I find, that the
Employer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE I.ABOR ORGANIZATION
Respondent Union is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
The Employer and Respondent entered into their first
collective-bargaining agreement in May 1978. It was ratified
by the employees of Respondent on May 30, 1978.
A union-security provision and a checkoff provision are
contained in the agreement. All full-time and part-time
employees were required to become members of the Union
no later than the 31st day following the execution date of the
agreement or the 31st day of their employment. Paragraph
3.3 of the agreement states:
The Employer agrees that each store will forward to the
Union a copy of the completed checkoff authorization
card for each new hire at the end of each work week.
The checkoff authorization card shall include the
employee name, address, social security number, classi-
fication, date of employment, and date of birth.
There is also a provision stating that, if an employee fails to
tender his dues or initiation fee pursuant to the union-
security clause, Respondent should notify the Employer in
writing, and the Employer, upon receipt of such notice and
not more than 7 days thereafter, should discharge that
employee.
Approximately 45 employees attended the contract ratifi-
cation meeting on May 30. Respondent's officials discussed
the union-security provisions of the contract and told those
in attendance that all employees would be required to pay
dues and initiation fees. Respondent's president, Paul
Crowe, stated that the initiation fee would be $20 and that
dues for full-time employees would be $2.50 a week and for
part-time employees would be $2 per week. There were
questions and answers on the subject. It was also mentioned
that the initiation fee and dues would be deducted from the
employees' paychecks.
Thereafter, in mid-July, Union Business Agent Gary
Thompson met with the store managers of the Employer's
Stoneham and Wakefield stores and asked them to cooperate
with Respondent in signing up the employees on the dues
deduction form and the membership authorization form. He
also provided the store managers with the appropriate
forms.'
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For a variety of reasons neither Respondent nor the
Employer was able to obtain many signed checkoff authori-
zations during the period from July through September 1,
1978. By September 5 or 6, 1978, the Employer had received
signed dues authorization forms from about 5 out of the
approximately 60 to 65 employees. In addition, by this same
date, another 15 employees signed authorizations as a result
of direct attempts by union representatives.
On September 6, Respondent wrote the Employer as
follows:
Pursuant to Article III we are hereby notifying you
that a great many of your employees are in violation of
our Collective Bargaining agreement in failing to
become members of the union and paying the periodic
union dues required under Article III.
We specifically refer you to Article III, section 5, and
respectfully demand your contractual compliance upon
receipt of this official notice.
Article III, Section 5
Upon the failure of any employee to tender his
initiation fee or dues to the Union within the period,
and under the conditions specified in Section 3.1 above,
the Union shall notify the Employer in writing of such
failure, and the Employer shall, upon receipt of such
notice, and not more than seven (7) days thereafter,
discharge such employee.
We would hope that this problem could be remedied
without the company having to discharge an employee
pursuant to the aforementioned Article.
On September 11, 1978, Respondent again wrote the
Employer stating:
In connection with our letter of September 6, 1978,
requesting that you discharge all employees who have
not become members of the Union in good standing,
please be advised as follows:
Local 1445 has no record of any of your employees
becoming members. Therefore, you should discharge
any employee in the bargaining unit who has not
executed a checkoff authorization which may be in your
possession. Please notify me immediately when any
employee does execute checkoff authorization and send
me a copy.
We continue to hope that this problem can be
remedied without the company having to discharge any
employee pursuant to the agreement.
On September 8, 1978, Respondent's president, Paul
Crowe, called the Employer's president, Frank Gallahue,
and asked Gallahue if he had received a copy of the Union's
September 6, 1978, letter. Gallahue replied that he had.
Crowe then said that if the "people didn't sign up their
checkoff cards that in seven days they would have to be
fired." Gallahue informed Crowe that the employees had
filed a union deauthorization petition with the National
Labor Relations Board and said that an official of the Board
said that employees could not be fired as long as the petition
was pending. Crowe then told Gallahue to collect the dues
or discharge the nonpaying employees "by Monday or we
will have a picket line out in front of your store." There is no
evidence that any picketing took place.
On September 20, the Union filed a grievance under the
collective-bargaining agreement requesting the discharge of
any employee who had not complied with the union-security
provisions of the agreement, "including the discharge of any
active employee immediately who has not complied with
Article III pursuant to the official notice from the Union
received by the Company on September 7, 1978."
There is no evidence that the Union's requests that the
Employer discharge employees were communicated to the
employees.
In October 1978,Union Representative Thompson spoke to
all of Respondent's employees and showed them a copy of a
letter dated October 21, 1978, accurately and completely
explaining the obligation of employees to join the Union, in
accordance with the contractual union-security clause.
Ninety percent were given the letter. The rest declined to
accept the letter after signing checkoff cards. Before Thomp-
son's visit only about 20 employees had signed cards. By late
October 1978 all the remaining employees signed dues
checkoff authorization cards. The cards were forwarded to
the Union. So far as the record shows, all present employees
have signed checkoff authorizations.
On October 25, 1978, the Union wrote the Regional
Director advising him of the delivery of the October 21 letter
to employees and a contemporaneous letter to the Employer
listing several employees who had not yet tendered their
dues, notwithstanding delivery of the October 21 letter, and
requesting their discharge in 7 days if they did not tender
their dues. The letter to the Employer was not delivered
because all employees eventually signed dues checkoff cards.
On November 3, 1979, the General Counsel issued the
complaint herein.
B. Discussion and Analysis
Absent extenuating circumstances, a union which seeks to
enforce a lawful union-security clause has an absolute duty
to inform all employees of their financial membership
obligations prior to requesting their dismissal for nonpay-
ment of regular dues and fees. District 9. International
Association of Machinists and Aerospace Workers, AFL-CIO
(Marvel-Schebzer. Division of Borg-Warner Corp.), 237
NLRB 1278 (1979). Thus, a union which causes the
discharge of an employee under a union-security clause
without first providing the employee with such information
violates Section 8(b)(2) and 8(b)(1)(A) of the Act. Philadel-
phia Sheraton Corporation, 136 NLRB 888 (1962), enfd. sub
nom. N.L R.B. v. Hotel. Motel and Club Employees' Union,
Local 568. AFL-CIO, 320 F.2d 254 (3d Cir. 1963). Further-
more, even the "treat of discharge," without prior notifica-
tion of an employee's financial obligations, has been found
unlawful under Section 8(b)(1)(A) of the Act. District 9,
supra at 4.
The General Counsel has not proved that Respondent's
conduct in this case rose to the level of a violation of the Act.
First of all there were no discharges in this case and
Respondent's requests for dismissal were qualified with
language asking the Employer to enforce the union-security
clause and expressing the hope that dismissals-which were
permissible under the collective-bargaining agreement-
would not be necessary. There is no evidence of direct
1034
LOCAL 1445, COMMERCIAL WORKERS
threats to employees. Nor did Respondent follow through on
its expressed intent to picket the Employer if dues were not
collected and submitted to it in accordance with the
contract.
Moreover, the evidence shows -that the financial obliga-
tions of employees were spelled out in the recently negotiat-
ed collective-bargaining agreement. Three-quarters of the
employees attended a ratification vote during which the
union-security and dues checkoff provisions were explained.
Uncontradicted testimony establishes that about 20 employ-
ees signed checkoff authorizations prior to September 6,
1978, either through the efforts of the Employer or Respon-
dent. The General Counsel, on the other hand, has not come
forward with evidence that any particular employee was
either discharged or threatened with discharge in circum-
stances where that employee was not given proper notifica-
tion. Even though the Board has found that a union does not
satisfy its fiduciary duty simply because of the fact a
delinquent employee may have acquired independent knowl-
edge of his financial obligations to the union, Produce,
Refrigerated & Processed Foods & Industrial Workers Local
No. 630. International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America (Ralph 's Grocery
Company), 209 NLRB 117, 124 (1974)), and that the union
must give the delinquent employee "actual as opposed to
constructive" notice of dues delinquency (International
Brotherhood of Boilermakers. Iron Shipbuilders, Black-
smiths, Forgers & Helpers, Local Lodge No. 732, AFL-CIO
(Triple A Machine Shop, Inc.. d/b/a Triple A South), 239
NLRB 504 (1979)), the General Counsel here has failed to
produce any employees who claim they were inadequately
notified of their financial responsibilities.
In these circumstances, Respondent's September 6, 1978,
letter and its subsequent conduct simply amounted to an
attempt to get the Employer to help it enforce the union-
security and dues checkoff authorization clauses in the
contract. Respondent did not directly threaten any employ-
ees with discharge, did not cause the discharge of any
employees, and its conduct does not demonstrate a real
attempt to cause the discharge of any particular employee,
particularly in view of Respondent's expression of hope that,
if the Employer helped enforce the contractual dues provi-
sions, discharges could be avoided. Nor was there evidence
submitted that any particular employee who may have been
affected by Respondent's attempts to have the Employer
enforce the union-security provisions of the contract was
actually not notified of his or her financial obligations. Thus,
the General Counsel has not met his burden of showing by a
preponderance of the evidence that Respondent violated the
Act.
However, even if Respondent's attempt to enforce the
collective-bargaining agreement amounted to a technical
violation of the Act, the facts herein do not justify a remedial
order. The evidence shows that most employees were
notified of their financial obligations before Respondent's
several attempts in September 1978 to use the dismissal
provisions of the contract to force compliance with the dues
payment provisions of the contract. Moreover, in October
1978, after the charges were filed herein, all employees were
given a letter spelling out quite clearly their dues obligations.
Thereafter, all employees signed dues checkoff authoriza-
tions and complied fully with the union-security provisions
of the contract. There is no need for further remedial action.
Indeed, in these circumstances, it is clear that the violation,
if any, was de minimis and there was no significant
interference with employee rights. Accordingly, the Board
should stay its hand. See International Woodworkers of
America, AFL-CIO (Central Veneer, Incorporated), 131
NLRB 189 (1961); Consolidated Freightways Corp. of Dela-
ware, 181 NLRB 856 (1970); American Federation of
Musicians, Local 76, AFL-CIO (Jimmy Wakely Show), 202
NLRB 620 (1973); and Truck Drivers, Oil Drivers, Filling
Station and Platform Workers Local No. 705 of the Interna-
tional Brotherhood of Teamsters [Johns-Manville Products
Corporation v. N.L.R.B., 509 F.2d 425, 428 (D.C. Cir.
1974).
CONCI.USION OF- LAW
Respondent has not violated the Act, but, even if it has,
the violation should not be remedied by a Board order.
[Recommended Order for dismissal omitted from publica-
tion.]
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