Nebraskaland, Inc.

National Labor Relations Board - Board Decisions

Dec 13, 2012

359 N.L.R.B. 347 (N.L.R.B. 2012)

NEBRASKALAND, INC. 347

359 NLRB No. 35
Nebraskaland, Inc. and Local 342, United Food and
Commercial Workers International Union. Case
02–CA–039996
December 13, 2012
DECISION AND ORDER
BY MEMBERS HAYES, GRIFFIN, AND BLOCK
On November 30, 2011, Administrative Law Judge
Steven Davis issued the attached decision. The Acting
General Counsel filed exceptions and a supporting brief.
The Respondent filed a brief in response, and the Acting
General Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions, and
to adopt the recommended Order.
1

Applying established law, the judge found that the Re-
spondent did not violate Section 8(a)(5) and (1) of the
Act by unilaterally ending its compliance with the dues-
checkoff provision of the parties’ collective-bargaining
agreement following the expiration of the agreement.
Bethlehem Steel Co., 136 NLRB 1500, 1502 (1962), affd.
in relevant part sub nom. Industrial Union of Marine &
Shipbuilding Workers v. NLRB, 320 F.2d 615 (3d Cir.
1963), cert. denied 375 U.S. 984 (1964).
After the issuance of the judge’s decision, the Board in
WKYC-TV, 359 NLRB 286 (2012), overruled Bethlehem
Steel and its progeny “to the extent they stand for the
proposition that dues checkoff does not survive contract
expiration.” 359 NLRB 286, 293. We held in WKYC-TV
that “an employer, following contract expiration, must
continue to honor a dues-checkoff arrangement estab-
lished in the contract until the parties have either reached
agreement or a valid impasse permits unilateral action by
the employer.” Id. We decided, however, to apply the
new rule only prospectively. Therefore, we apply Beth-
lehem Steel in the present case. Accordingly, we adopt
the judge’s finding that Respondent did not violate the
Act. We shall dismiss the complaint.
2

ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

1 We find it unnecessary to reach the Acting General Counsel’s sev-
eral technical exceptions to the judge’s rulings and findings because
doing so will not affect the outcome.
2 For the reasons set forth in his partial dissent in WKYC-TV, supra,
Member Hayes would adhere to the Board’s longstanding Bethlehem
Steel precedent. Because the Board dismisses the complaint under
Bethlehem Steel, Member Hayes concurs in the result in this case.
Margit Reiner and Moriah Berger, Esqs., for the General
Counsel.
Michael F. McGahan and Victoria Sloan, Esqs. (Epstein Becker
& Green, P.C.), of New York, New York, for the Respond-
ent.
Jonathan Friedman, Esq., of Mineola, New York, for the Un-
ion.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on charges
filed in Cases 02–CA–039715 and 02–CA–039996 by Local
342, United Food and Commercial Workers International Un-
ion (the Union), a consolidated complaint was issued on May
31, 2011, against Nebraskaland, Inc. (the Respondent). At the
hearing, Case 02–CA–039715 was settled, and the trial pro-
ceeded with respect to a discrete part of Case 02–CA–039996.1
The complaint alleges and the Respondent admits that fol-
lowing the expiration of the collective-bargaining agreement
between the Respondent and the Union, the Respondent discon-
tinued the dues checkoff provision of the contract.
The complaint further alleges that the Respondent violated
Section 8(a)(5) and (1) of the Act by discontinuing the dues-
checkoff provision, a mandatory subject of bargaining, without
prior notice to the Union and without affording the Union an
opportunity to bargain with the Respondent concerning this
conduct. The Respondent’s answer states that it took such ac-
tion in accordance with established Board precedent in effect at
the time of its termination of the provision.
A hearing was held on September 21, 2011, in New York,
New York.2 Upon the evidence presented in this proceeding,
and after consideration of the briefs filed by the General Coun-
sel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent, a New York corporation, having a place of
business at Hunts Point Market Cooperative in the Bronx, New
York, has been engaged in the business of wholesale sales and
distribution of meat and other food products. Annually, the
Respondent purchases and receives goods and services valued
in excess of $50,000 directly from suppliers located outside
New York State. The Respondent admits and I find that it has
been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Respondent denies knowledge or information concern-
ing the labor organization status of the Union. In Agri Proces-

1 The charge in Case 02–CA–039996 was filed on June 30, 2010.
The Respondent’s answer denies knowledge or information concerning
the filing and service of the charge. The formal papers, GC Exh. 1,
containing the original charge and its affidavit of service, establishes
that the charge was filed and served as set forth in the complaint.
2 After the hearing was closed, I issued an Order reopening the rec-
ord to receive certain documents in evidence. Thereafter, I issued an
Order closing the record, which has been received in evidence as GC
Exh. 8.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

348
sor Co.., 347 NLRB 1200, 1202 (2006), the Board noted that
the union had been certified, and issued a bargaining order in
its behalf. In addition, the Respondent’s answer admits that
since about November 14, 2004, the Union has been the exclu-
sive collective-bargaining representative of its unit employees,
and has had a collective-bargaining agreement with it which
was effective from July 1, 2005, to October 31, 2009. I accord-
ingly find and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges, and the Respondent’s answer admits
that the following employees of the Respondent constitute a
unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act, and that, since Novem-
ber 14, 2004, the Union has been the designated exclusive col-
lective-bargaining representative of the unit:

All full-time and regular part-time warehouse employees em-
ployed by Respondent at Respondent’s facility, excluding
drivers, drivers helpers, inventory clerks hired after November
15, 2004, night billing, front end employees, office personnel
and sales representatives, and guards, professional employees,
and supervisors as defined in the Act.

The Respondent and the Union were parties to a collective-
bargaining agreement which was effective from July 1, 2005, to
October 31, 2009. The contract contains a union-security clause
which provides that employees must become and remain mem-
bers of the Union after 30 days of employment. It also pro-
vides:

The Employer agrees to deduct dues and initiation fees and
any other authorized amounts, from the wages of all employ-
ees who have on file with the Employer a proper deduction
card and to remit the amount with a listing of names to the
Union Office on or before the 27th day of each month. The
Union will give to the Employer signed deduction cards from
the employees authorizing the deduction of dues and initiation
fees and any other authorized amounts. The Employer’s obli-
gation to remit to the Union shall be limited to the amounts
which it actually does deduct from the employees’ wages.

Two dues-checkoff authorization forms were received in ev-
idence. They are from Narciso Felix, dated June 2, 2005, and
Raymond Cardona, dated April 16, 2009. They both bear the
same language:

CHECKOFF AUTHORIZATION:
I hereby authorize and direct my Employer, Nebraskaland, to
deduct from my wages an amount equivalent to dues, initia-
tion fees, and authorized assessments as shall be certified by
the Secretary-Treasurer of the U.F.C.W. Local Union 342
AFL-CIO, and remit same to said Secretary-Treasurer. This
authorization and assignment is voluntarily made in consider-
ation for the cost of representation and the collective bargain-
ing and other activities undertaken by the Union and is not
contingent upon my present or future membership in the Un-
ion. This authorization and assignment shall be irrevocable for
a period of one year from date of execution or until the termi-
nation date of the agreement between the Employer and the
Local Union, whichever occurs sooner, and from year to year
thereafter, unless not less than 10 days and not more than 20
days prior to the end of any subsequent yearly period I give
the employer and Union written notice of the revocation bear-
ing my signature thereto.

By letter to the Union dated April 1, 2010, Richard Roma-
noff, the owner and president of the Respondent, advised the
Union that the collective-bargaining agreement between the
Respondent and the Union “having expired October 31, 2009,
Nebraskaland is discontinuing the dues check off and union
security provisions that do not survive the contract expiration.
The change in dues checkoff will be reflected in the first pay-
roll period of April (checks issued April 8 and 9).”
The parties stipulated that the April 1 letter was the first no-
tice the Respondent gave the Union that it would be discontinu-
ing the dues-checkoff provision of the expired contract, and
that there was no such prior notice.
Analysis and Discussion
The General Counsel argues that by unilaterally discontinu-
ing the dues-checkoff provisions of its expired contract, the
Respondent violated Section 8(a)(5) and (1) of the Act. The
Respondent’s position is that no violation has been committed.
In NLRB v. Katz, 369 U.S. 736, 743 (1962), the Supreme
Court held that a unilateral change in a term or condition of
employment without bargaining violates the Act. Accordingly,
an employer’s unilateral cessation of the dues-checkoff provi-
sion should violate the Act as a unilateral change. However, in
Bethlehem Steel Co., 136 NLRB 1500, 1502 (1962), although
the Board stated that union security and checkoff are matters
related to wages, hours, and other terms and conditions of em-
ployment within the meaning of Section 8(d) of the Act, and
are mandatory subjects of bargaining about which the employer
must bargain with the union, the Board held that certain terms
of a contact, including union dues deduction agreements, may
be terminated after the expiration of the contract.
The Board in Bethlehem reasoned that the checkoff provi-
sions in the collective-bargaining agreement “implemented the
union security provisions. The Union’s right to such checkoffs
in its favor, like its right to the imposition of union security,
was created by the contracts and became a contractual right
which continued to exist so long as the contracts remained in
force. Consequently, when the contacts terminated, the re-
spondent was free of its checkoff obligations to the union.”
The General Counsel concedes that Bethlehem represents the
current law on this issue, but argues that that case should be
overruled. The Board may do so, but I cannot. “It is a judge’s
duty to apply established Board precedent which the Supreme
Court has not reversed.” Waco, Inc., 273 NLRB 746,749 fn. 14
(1984), citing Iowa Beef Packers, 144 NLRB 615, 616 (1963);
Pathmark Stores, 342 NLRB 378 fn. 1 (2004).
In Hacienda Resort Hotel & Casino (Hacienda I), 331
NLRB 665, 666 (2000), the Board, citing numerous Board and
court cases, emphasized that it is a “well-established precedent
that an employer’s obligation to continue a dues checkoff ar-
rangement expires with the contract that created the obliga-
tion.” The Board noted that, although certain mandatory sub-
jects of bargaining cannot be changed unilaterally upon the
NEBRASKALAND, INC.

349
expiration of a contract, some, including union-shop and dues
checkoff, “have historically been treated as exceptions to this
general rule.”
The union appealed that decision to the Ninth Circuit Court
of Appeals which remanded the case to the Board with instruc-
tions to “articulate a reasoned explanation for the rule it adopt-
ed, or adopt a different rule and present a reasoned explanation
to support it.” Local Joint Executive Board of Las Vegas v.
NLRB, 309 F.3d 578, 586 (9th Cir. 2002). On remand, the
Board again found that the dues-checkoff provisions ended
upon the expiration of the contract, but this time relied on the
language in the checkoff provisions which specifically limited
the dues-checkoff obligation to the term of the collective-
bargaining agreement. Hacienda Resort Hotel & Casino (Hac-
ienda II), 351 NLRB 504 (2007).
The union again appealed, and the Ninth Circuit again asked
the Board to articulate a reasoned explanation for its ruling in
Hacienda I or adopt a different rule and present a reasoned
explanation to support it. 540 F.3d 1072 (9th Cir. 2008). The
court posed the question: “Whether dues checkoff is a mandato-
ry subject of bargaining.” The Board’s decision on remand
stated that its four members had reached opposing views, set
forth in two separate concurring opinions, and that, according-
ly, had decided to follow existing precedent, and dismissed the
complaint. It should be noted that Chairman Liebman and
Member Pearce expressed “substantial doubts about the validity
of Bethlehem.” Hacienda III, 355 NLRB 742, 743 (2010). In
again considering the union’s appeal, the Ninth Circuit stated
that a third remand to the Board would be inappropriate, but
decided that the employer violated the Act by unilaterally ceas-
ing dues checkoff before bargaining to impasse on the issue.
The court remanded the matter to the Board to determine what
relief was appropriate in light of its opinion.
The General Counsel, consistent with the dissenting opinion
in Hacienda I, argues that there is no statutory or policy justifi-
cation for excepting dues checkoff from the general rule that
following the expiration of a contract, an employer is obliged to
maintain the status quo regarding employees’ terms and condi-
tions of employment until the parties agree on changes or bar-
gain to impasse.3
It is important to note that the General Counsel’s arguments
regarding Hacienda must be considered in relation to the fact
that those cases were decided in a “right-to-work” State where
union-security clauses conditioning employment upon member-
ship in a union are prohibited, and therefore, dues checkoff
could not lawfully be linked with union-security arrangements
in those States. Indeed, the Ninth Circuit did not express its
opinion of the validity of Bethlehem in a nonright-to work State
657 F.3d 865 (9th Cir. 2011). In the instant case, New York is
not a right-to-work State, and therefore, the union-security

3 There is no evidence that the parties have engaged in bargaining af-
ter their contract expired.
clause here may be considered, consistent with Bethlehem, to
have been properly linked with the dues-checkoff provisions.
Counsel for the General Counsel further cites a variety of
reasons why Bethlehem should be overruled. She argues that
Bethlehem’s justification for finding that dues checkoff could
be stopped upon the contract’s expiration because the checkoff
provisions “implemented the union security provisions” is not
sound. She cites cases in which the Board has held that the
dues-checkoff provisions could be stopped postcontract expira-
tion where the contract contained no union-security provisions,
and where such provisions were prohibited by State law. Tam-
pa Sheet Metal, 288 NLRB 322, 326 fn. 15 (1988).
The General Counsel also argues that here, there is no lan-
guage in the dues-checkoff provisions of the contract limiting
the authority to deduct dues to the duration of the contract, as
was the case in Bethlehem, supra at 1502. Therefore, according
to the General Counsel, the Respondent’s authority to make
dues deductions continues even after the contract’s expiration.
However, inasmuch as that argument was not explicitly relied
on by the Board in making its decision, I cannot find that such
an argument should change the result here.
The General Counsel also contends that, assuming that the
Respondent was permitted to cease dues checkoff upon the
contract’s expiration, it forfeited that right by continuing to
deduct dues for 5 months thereafter, from November 1, 2009, to
April 1, 2010. However, the employer in Hacienda did not
cease dues checkoff until more than 1 year after the contract
expired. See also 87–10 51st Ave. Owners Corp., 320 NLRB
993 (1996), where the employer lawfully ceased dues checkoff
7 months after the contract expired.
Inasmuch as the Board’s most recent decision on the issue,
Hacienda III, in the absence of a three-member majority to
overrule it, essentially reaffirmed Bethlehem, that case remains
the outstanding current Board law on the subject.
CONCLUSION OF LAW
The Respondent’s unilateral cessation of dues checkoff in
April 2010, following the expiration of the collective-
bargaining agreement between the Respondent and the Union
on October 31, 2009, did not violate Section 8(a)(5) and (1) of
the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The complaint is dismissed.

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.