Smith's Food & Drug Centers, Inc. d/b/a Fry's Food Stores

National Labor Relations Board - Administrative Judge Opinions

May 3, 2011

28-CA-022836 (N.L.R.B. May. 3, 2011)

JD(SF)–10–11
Phoenix, Az

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
SMITH’S FOOD & DRUG CENTERS, INC.
d/b/a FRY’S FOOD STORES
and Case 28-CA-22836
KAREN MEDLEY, an Individual
and Case 28-CA-22837
KIMBERLY STEWART, an Individual
and Case 28-CA-22838
ELAINE BROWN, an Individual
and Case 28-CA-22840
SHIRLEY JONES, an Individual
and Case 28-CA-22858
SALOOMEH HARDY, an Individual
and Case 28-CA-22871
JANETTE FUENTES, an Individual
and Case 28-CA-22872
TOMMY FUENTES, an Individual
UNITED FOOD AND COMMERCIAL
WORKERS UNION LOCAL 99
and Case 28-CB-7045
KIMBERLY STEWART, an Individual
and Case 28-CB-7047
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ELAINE BROWN, an Individual
and Case 28-CB-7048
KAREN MEDLEY, an Individual
and Case 28-CB-7049
SHIRLEY JONES, an Individual
and Case 28-CB-7058
SALOOMEH HARDY, an Individual
and Case 28-CB-7062
JANETTE FUENTES, an Individual
and Case 28-CB-7063
TOMMY FUENTES, an Individual
Johannes Lauterborn, Esq., for the
General Counsel.
Frederick C. Miner, Esq. (Littler Mendelson,
P.C.), of Phoenix, Arizona, for Respondent Employer.
Adam Zapala and Steven L. Stemerman, Esqs. (Davis
Cowell & Bowe, LLP), of San Francisco, California,
for Respondent Union.
Glenn M. Taubman, Esq. (National Right to Work
Legal Defense Foundation), of Springfield,
Virginia, for the Charging Parties.
DECISION
Statement of the Case
WILLIAM G. KOCOL, Administrative Law Judge. This case was tried in Phoenix,
Arizona, on June 29, 2010, and January 18, 2011.1 The first charge in this case was filed
December 28, 2009,2 and the amended consolidated complaint was issued June 11, 2010. The
complaint alleges that Smith’s Food & Drug Centers, Inc. d/b/a Fry’s Food Stores (Fry’s)
violated Section 8(a)(2), (3), and (1) of the National Labor Relations Act (the Act) by continuing
to remit to the Union the money from the wages of employees who had signed checkoff

1 I closed the hearing by order dated March 22, 2011.
2 All dates are 2009, unless otherwise indicated.
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authorizations and that by continuing to accept that money United Food and Commercial
Workers Union Local 99 (the Union) has violated Section 8(b)(1)(A) by both restraining and
coercing employees in the exercise of their Section 7 rights and by breaching its duty of fair
representation and violated Section 8(b)(2) by attempting to cause Fry’s to violate Section
8(a)(3).
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Fry’s, the Union, and the Charging
Parties, I make the following.
Findings of Fact
I. Jurisdiction
Fry’s, a corporation, with an office and place of business in Tolleson, Arizona, and stores
at several locations throughout Arizona, is engaged in the retail sale of groceries, meat, and
related products and annually derives gross revenues in excess of $500,000 and purchases and
receives at its Arizona facilities goods valued in excess of $50,000 directly from point outside
Arizona. Fry’s and the Union admit and I find that Fry’s is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Overview
Employees voluntarily signed checkoff authorizations that were clearly not linked to
union membership. The complaint alleges, and the facts show, that thereafter some employee
resigned from membership in the Union. The complaint alleges that by failing to treat the
membership resignation as a checkoff revocation, the Union violated the Act. This argument is
untenable under Electrical Workers Local 2088 (Lockheed Space Operations), 302 NLRB 322
(1991), and Steelworkers Local 4671 (National Oil Well), 302 NLRB 367 (1991).
Second, the complaint alleges, and the facts shows that some employees attempted to revoke
their checkoff authorizations during a hiatus between collective-bargaining agreements and
during times that were allowed under the terms of the checkoff authorization. That argument
too is untenable. Frito Lay, 243 NLRB 137, 144 (1979).
I emphasize that there are only two arguments – resignations from membership and
untimely revocations of checkoff authorizations – that are covered by the complaint. Faced with
this clear precedent, the arguments of the General Counsel have morphed and, as shown
below, have become increasingly untethered from the complaint and contradictory in nature. At
the trial the Union’s counsel stated:
I have one other thing and it’s . . . a standing objection to the entire conduct of this case,
frankly, Your Honor, and that is, you know, the defense is entitled to some clear notice
about what the theory is and, frankly, the Region has just run roughshod over our due
process rights. One week the theory is X. The next week the theory is Y. The following
week the theory is X, Y, and Z. You know, you can’t prepare to defend a case when the
Region’s changing its theory week in and week out . . . .
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I agree completely with this statement.
B. Motions
The Union filed a motion to dismiss the portions of the complaint alleging that after the
Charging Parties resigned from membership in the Union, the Union violated Section 8(b)(1)(A)
by continuing to accept money deducted from the wages of the Charging Parties pursuant to
checkoff authorizations that these employees had signed. I concluded that Electrical Workers
Local 2088 (Lockheed Space Operations), supra, and Steelworkers Local 4671 (National Oil
Well), supra, were directly on point. I therefore granted the motion and dismissed those
allegations in the complaint. The General Counsel appealed my ruling and the National Labor
Relations Board (the Board) granted the appeal and reversed my dismissal. The Board
indicated that the General Counsel’s “arguments indicate that he seeks to pursue a theory of
violation that has not previously been considered by the Board” and that therefore the General
Counsel “should be afforded an opportunity to develop a record to support the theory in this
case.” The Board, however, did not describe the new theory of a violation that might not be
governed by existing law. In my view, no such viable legal theory has been ever articulated by
the General Counsel in this case. In the absence of guidance from the Board as to what that
new viable legal theory might be, for reasons explained below, I again dismiss those allegations
of the complaint for reasons previously stated; I look forward to the Board’s explanation of why
the disposition of this issue is not squarely governed by the cases cited above.
At the original hearing in this case, I also considered a petition to revoke subpoenas that
were served by the General Counsel on the Union and Fry’s. I ruled that the Union and Fry’s
were not required to produce documents concerning “a class of similarly situated but as-yet-
unidentified employees.” I concluded that the identification of similarly situated employees could
occur at the compliance stage of this proceeding if the complaint ultimately proved meritorious.
The General Counsel also appealed this ruling and the Board again reversed my ruling. Armed
with the additional evidence, the General Counsel offered several thousand additional
documents into the record. In my view the documents predictably contributed nothing to the
outcome of this case. Rather, the result was unnecessary costs to the Union and Fry’s in
collecting and copying the documents and avoidable delay in the final resolution of this case.3
Moreover, the case is still in the exact position it was when I first ruled on this issue: If the
complaint has merit, the identification of similarly situated employees will occur at the
compliance stage of this proceeding.
The subpoenaed documents covered by the special appeal were provided to the
General Counsel in early December 2010. On Friday, January 14, 2011, in the late afternoon,
the General Counsel served additional subpoenas on the Union and Fry’s. The trial was set to
resume the next business day, January 18. The new subpoenas requested documents
concerning employees who resigned from membership outside the 10(b) period. According to
the General Counsel, employees who resigned from membership in the Union, even beyond the
6-month period and who have not heretofore filed charges with the Board were entitled to
reimbursement for amounts paid to the Union pursuant to checkoff authorizations during the
10(b) period covered by existing charges. This would necessarily require the litigation of events

3 The General Counsel requested, and I granted, 3 weeks for the General Counsel to
assemble the documents in a manner consistent with the Rules of Evidence. I granted another
week for the parties examine the thousands of documents to assure that the General Counsel
had done so, and then yet another week for me to resolve any disputes over the documents.
Thereafter, time was spent resolving issues raised receiving these documents into evidence.
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– the resignations - that occurred years ago. Indeed, at the trial the General Counsel sought to
litigate events that occurred in 1992, explaining that it was necessary under his legal theory.
Torn between following the Board’s instruction to allow the General Counsel to develop the
record to allow the Board an opportunity to consider a theory it has not previously considered
yet still being unable to identify that theory, I again opted to apply existing law and granted a
motion to revoke those subpoenas. Allied Production Workers Union 12 (Northern Engraving
Corp.), 337 NLRB 16 (2001), is directly on point. I recognize, however, if the Board concludes
that the General Counsel has articulated a legal theory within the boundaries of the complaint
but not covered by existing law, it may be necessary to again reverse my ruling and remand the
case to permit litigation of those events.
C. Resignations from Union Membership
I now turn to the facts of this case. By way of background, Arizona is a right-to-work
State. The Union is the 9(a) representative of a unit of employees described in the complaint in
this case. Fry’s and the Union were parties to a collective-bargaining agreement that was in
effect by its terms from October 26, 2003, to October 25, 2008. Article 15 of that contract
obligated Fry’s to remit to the Union amounts equivalent to dues from the pay of unit employees
who authorized the deductions in writing.
Fry’s and the Union were unable to agree to a successor contract before the October 25,
2008 date set for expiration of the then existing contract, so they entered into a series of
extension agreements for varying periods of time beginning October 26, 2008, and ending
October 31, 2009. On November 12, 2009, Fry’s and the Union finally agreed to a new
collective-bargaining agreement that runs from October 12, 2009, to October 27, 2012. A
number of unit employees, including Charging Parties Karen Medley, Kimberly Stewart, Elaine
Brown, Shirley Jones, Saloomeh Hardy, Janette Fuentes, and Tommy Fuentes, had signed
checkoff authorizations with the Union. The written authorization provides:
This Check-Off Authorization and Agreement is separate and apart from the
Membership Application and is attached to the Membership Application only
for convenience.
CHECK-OFF AUTHORIZATION
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To: Any Employer under contract with United Food and Commercial
Workers Union, Local 99, AFL-CIO
You are hereby authorized and directed to deduct from my wages,
commencing with the next payroll period, an amount equivalent to dues and
Initiation fees as shall be certified by the Secretary-Treasurer of Local 99 of
the United Food and Commercial Workers Union, AFL-CIO, and remit same
to said Secretary-Treasurer.
This authorization and assignment is voluntarily made in consideration for the
cost of representation and collective bargaining and is not contingent upon
my present or future membership in the Union. This authorization and
assignment shall be irrevocable for a period of one (1) year from the date of
execution or until the termination date of the agreement between the
Employer and Local 99, whichever occurs sooner, and from year to year
thereafter, unless not less than thirty (30) days and not more than forty-five
(45) days prior to the end of any subsequent yearly period I give the
Employer and Union written notice of revocation bearing my signature
thereto.
The Secretary-Treasurer of Local 99 is authorized to deposit this
authorization with any Employer under contract with Local 99 and is further
authorized to transfer this authorization to any other Employer under contract
with Local 99 in the event that I should change employment.
Applying the checkoff-authorization form in the context of the October 26, 2003, to October 25,
2008 collective-bargaining agreement, every employee who signed an authorization during that
contract could revoke the authorization during the window periods preceding the yearly
anniversary date that the employee signed the authorization. In addition, employees who
signed authorizations during the last year of the contract could revoke their authorizations upon
the expiration of that contract.
At various times, the Charging Parties and others resigned from their membership in the
Union. None of the Charging Parties submitted their resignations during the window periods set
forth in the checkoff authorizations. Using the specific example described by the General
Counsel in his special appeal to the Board:
For example, Charging Party Saloomeh Hardy signed a checkoff authorization on
October 6, 2004, and resigned her Union membership on September 29, 2009. (See
¶¶ 10(a) of the Complaint and Answer and Motion to Dismiss, Exhibit C at 7.) Because
Respondents’ collective-bargaining agreement did not expire before October 6, 2005,
Hardy’s irrevocability period lasted until October 6, 2005, and renewed for one year until
October 6, 2006. Her irrevocability period renewed again for one year on October 6,
2006; October 6, 2007; and October 6, 2008.
Analysis
Section 302(c)(4).of the Act permits an employer to deduct union membership dues from
employees’ wages and remit those moneys to their exclusive collective-bargaining
representative, ‘‘Provided, That the employer has received from each employee, on whose
account such deductions are made, a written assignment which shall not be irrevocable for a
period of more than one year, or beyond the termination date of the applicable collective
agreement, whichever occurs sooner.’’
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The General Counsel argues that the Union and Fry’s violated the Act in failing to honor
the resignations as functional equivalents of timely revocations of checkoff authorizations that
became effective upon the expiration of the yearly escape periods set forth in those
authorizations. Continuing to use Hardy as an example, the General Counsel argues:
Because Hardy resigned her Union membership on September 29, 2009,
Respondent Union was on notice that her obligation to pay dues ended on October 6,
2009, the expiration date of her irrevocability period. By continuing to accept, receive,
and retain Hardy’s dues deducted from her wages after October 6, 2009, Respondent
Union violated the Act.
I now examine the impact that resignations from membership had on the checkoff
authorizations signed by the employees. The starting point is to determine whether those
checkoff authorizations were contingent upon continued union membership because in National
Oil, supra, the Board held that an employee is bound by terms of a checkoff authorization
notwithstanding his resignation from union membership because the language checkoff
authorization clearly indicated an agreement to pay dues irrespective of membership in the
union. The language in the checkoff authorizations signed by the Charging Parties in this case
similarly clearly show that the authorized payments to the Union were not tied to union
membership; the General Counsel does not contend otherwise. Therefore, under National Oil
resignation from union membership did not relieve these employees of their obligations under
the checkoff authorizations to continue to make payments to the Union.
The General Counsel, however, argues that resignation becomes the functional
equivalent of revocation upon the expiration of the yearly escape periods required by Section
302(c)(4) even though the revocations were not timely. This is so, the argument goes, because
when the employees resigned their membership in the Union, the Union should have
reasonably understood that employees also desired to revoke their checkoff authorizations. But
this argument is foreclosed by Lockheed. In Lockheed the Board stated:
Our review of statutory policies and contractual principles persuades us that there is no
reasonable basis for precluding an employee from individually agreeing that he will pay
dues to a union whether or not he is a member of it and that he will pay such dues
through a partial assignment of his wages, i.e., a checkoff. Neither is there a reasonable
basis for precluding enforcement of such a voluntary agreement.
Lockheed, supra at 328. In other words, the Board allows for the possibility that an employee
may no longer wish to remain a member of a union but nonetheless desires to contribute to a
union for contract administration expenses via a checkoff authorization. The General Counsel
does not explain how this holding can be reconciled with his theory that the Union should have
understood that resignation also meant the employee was also announcing a desire to revoke
the checkoff authorization. See also American Nurses’ Assn., 250 NLRB 1324 fn. 1 (1980),
where the Board stated:
[W]e agree with the Administrative Law Judge that resignation from the Union does not
constitute revocation of dues-checkoff authorizations, and that union security and dues
ckeckoff are distinct and separate matters . . . .
Moreover, the General Counsel’s argument would allow employees who resign from
membership to escape from the window periods specified in the checkoff authorization form,
window periods that are similar to those in the checkoff authorizations that Board found were
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lawful in Lockheed. Stated differently, employees could achieve through resignation what they
could not achieve through revocation.
In sum, I again conclude that allegations in the complaint concerning the impact of
resignation from membership on the ability to escape from the obligations set forth in checkoff
authorizations are governed by Lockheed and National Oil and those cases mandate the
dismissal of those allegations in the complaint.
D. Revocations of Checkoff Authorization
As indicated above, Fry’s and the Union were unable to agree to a successor contract
before the October 25, 2008, date set for expiration for the then existing contract, so they
entered into a series of extension agreements for varying periods of time beginning October 26,
2008, and ending October 31, 2009. On November 12, 2009, Fry’s and the Union agreed to a
collective-bargaining agreement that runs from October 12, 2009, to October 27, 2012.
On October 6 and November 9, 2009, Medley notified the Union in writing that she was
revoking her checkoff authorization and on October 12 and November 16, 2009, Medley notified
Fry’s of the same. On September 30, November 9 and 13, 2009, Stewart notified the Union in
writing that she was revoking her checkoff authorization and on November 16, 2009, Stewart
notified Fry’s of the same. On September 30, November 9 and 10, 2009, Brown notified the
Union in writing that she was revoking her checkoff authorization and on November 16, 2009,
Brown notified Fry’s of the same. On November 12, 2009, Jones notified the Union in writing
that she was revoking her checkoff authorization and on November 12, 2009, Jones notified
Fry’s of the same. On September 29 and November 10, 2009, Hardy notified the Union in
writing that she was revoking her checkoff authorization and on December 4, 2009, Hardy
notified Fry’s of the same. On October 2 and November 11, 2009, J. Fuentes and T. Fuentes
notified the Union in writing that they were revoking checkoff authorization and on October 2
and November 11, 2009, J. Fuentes and T. Fuentes notified Fry’s of the same. In addition,
during the 10(b) period in this case, June 28 to November 12, 2009, other employees notified
the Union in writing that they were their revoking checkoff authorizations and notified Fry’s of the
same. None of the revocations occurred during their 1-year anniversary date specified in the
checkoff authorizations and, thus, they were untimely. Rather, the revocations occurred during
the hiatus period before a new contract was reached. The Union and Fry’s refused to honor the
revocations of the checkoff authorizations and continued to deduct money from the wages of the
employees and send the money to the Union. The Union sent letters to those employees; the
letters explained that the revocations were not timely under the terms of the checkoff
authorization and described the next opportunity the employee would have to revoke the
checkoff authorization.
Analysis
The complaint alleges by continuing to remit to the Union the money from the wages of
the employees, Fry’s has violated Section 8(a)(2) and (3) and that by continuing to accept that
money the Union has violated Section 8(b)(1)(A) by both restraining and coercing employees in
the exercise of their Section 7 rights and by breaching its duty of fair representation and violated
Section 8(b)(2) by attempting to cause Fry’s to violate Section 8(a)(3). These allegations rise or
fall on whether or not the employees had the right revoke their checkoff authorizations during
time periods that are not specified in the authorizations that they had signed. In Frito Lay, 243
NLRB 137, 144 (1979), the Board rejected the notion that employees are free to revoke their
checkoff authorizations at will during the hiatus period between contracts. Here, like in Frito
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Lay, employees were not entitled to withdraw at will during the hiatus period between the
contracts.
Next, the General Counsel points to language in the letters the Union sent to the
employees who resigned from membership or attempted to revoke their checkoff authorizations.
Some letters provided the employees with the dates of the next escape period occurring on the
anniversary of their signing the authorization (all admittedly accurate dates.) The General
Counsel complains that:
None of those letters contained any information about the termination dates of any
collective-bargaining agreement, an extension of any collective-bargaining agreement,
or the possibility of revoking one’s check-off authorization at any time other than during
the 15-day window period preceding the anniversary of one’s execution of the check-off
authorization.
I first take time to individually address the impact each of the three items of missing information
in the letters. Then I stop after giving two reasons why the whole matter of the letters is a mere
distraction from the allegations in the complaint. The letters in fact did not provide information of
the dates on which the employees could next revoke their authorizations upon the expiration of
the contract. But remember no new contract had been reached so there were no dates to
provide. And unless the new collective-bargaining agreement was to be for a term of less than
a year, then the anniversary dates described in the letters were indeed the next chance the
employees could revoke their authorizations. Next, the letters in fact did not provide dates
when employees could revoke their checkoffs during any extension agreement, but as
described above, this is wholly irrelevant. Finally, the letters did not contain any information
concerning the possibility of revoking the checkoff at any time other than the employee’s
anniversary date. But this seems to me to simply be restating the first two items, albeit in a
different way. In any event, whatever was said in these letters is entirely irrelevant to the
allegations in the complaint in this case. First, the complaint does not allege that the letters
themselves contained any unlawful statements or breached the union fiduciary duty. Second,
whatever letters said, they were sent after and in reply to the resignations and attempted
revocations and therefore could not have caused any confusion among employees concerning
their earlier attempts to revoke the authorizations.
Next, the General Counsel argues that during the hiatus between the old and new
contracts:
Respondents during this period entered into at least eight extensions of the 2003 CBA,
each for a different duration so that it was impossible, in some cases, to determine the
applicable window period during which to revoke the checkoff authorizations.
But this argument too is meritless because it is premised on the notion that employees are
entitled to revoke their checkoff authorizations during the window periods preceding the
termination of the extension agreements. In Atlanta Printing Specialties, 215 NLRB 237 (1974),
enfd. 523 F.2d 783 (6th Cir. 1975), the Board held that the “applicable collective-bargaining
agreement” Section 302(c)(4) is the one in effect at the time the employees signed their check-
off authorizations and not subsequent collective-bargaining agreements. Moreover, as the
Union explains in its brief, the rationale underlying Atlanta Printing is to provide a date-certain
for revocations of checkoff authorizations; allowing revocations as a matter of law prior to the
expiration of extension agreements would create confusion. Board law and common sense
require the rejection of the General Counsel’s theory concerning the impact of the extension
agreements on checkoff revocations.
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The General Counsel then cites Food & Commercial Workers Local 1 (Big V
Supermarkets), 304 NLRB 952 (1991), enfd. 975 F.2d 40 (2d Cir. 1992). But that case is clearly
inapplicable here because it involved checkoff authorizations with no revocations periods and
thus were revocable at will.
Next, the General Counsel claims that the checkoff-authorization forms were ambiguous
and therefore employees were allowed to revoke the authorization at will. But I have already
concluded the authorizations were sufficiently clear to allow each employee who signed an
authorization during the 2003–2008 contract the opportunity to revoke the authorization during
the window periods preceding the yearly anniversary date that the employee signed the
authorization. In addition, employees who signed authorizations during the last year of the
contract could revoke their authorizations upon the expiration of that contract. Moreover, the
General Counsel has failed to show that any ambiguity that employees might perceive resulted
from the misleading acts of the Union rather ambiguity inherent in the statutory language and
the judicial gloss placed on that language.
E. General Counsel’s Brief
In his closing brief, the General Counsel refers to “the unlawful language contained
within the checkoff authorizations signed by the employees . . . .” He now challenges the facial
validity of the checkoff authorizations. I decline to resolve that matter because the General
Counsel has not accorded Fry’s and the Union due process. Although the General Counsel
sets forth the checkoff authorization language in paragraph 5 of the complaint, the same
paragraph that contains the unit description, the collective-bargaining agreement, including the
relevant the language from that contract concerning checkoffs, the dates of the extension
agreements, and the date a new collective-bargaining agreement was reached, the complaint
does NOT allege that any of these items violated the Act. To the contrary, the complaint only
alleges that conduct described in subsequent paragraphs violated the Act. Indeed, when I
earlier dismissed allegations in the complaint, I did not dismiss any of the allegations of
paragraph 5 in the complaint because they did not involve any unlawful conduct. And in his
brief to the Board in support of his special appeal the General Counsel stated:
Rather, the AGC alleges that Respondent Union continued to accept, receive, and retain
dues deducted from employees’ wages after the irrevocability periods specified in the
checkoff authorizations expired, and by doing so violated the Act. The AGC also alleges
that because the checkoff authorizations became revocable at will after October 25,
2008, and remained revocable at will until November 12, 2009, an employee’s
resignation of Union membership during that period extinguished the employee’s
obligation to pay dues.
Again, there is not the slightest indication that the General Counsel is challenging the facial
validity of the checkoff authorization. To the contrary, by this statement the General Counsel
indicates that during the time periods before the expiration of the old contract and after the
beginning of the new contract the Union and Fry’s properly continued to deduct dues pursuant
to the checkoff authorization forms; that is to say the authorization forms themselves were
lawful. Moreover, after the trial resumed the General Counsel stated:
Well, Your Honor, let me be clear that we are not and we have, although it’s very easy to
do so, we have not alleged in the Complaint that [the checkoff authorization form] is
facially invalid.
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And later, I specifically invited the General Counsel to move to amend the complaint to
challenge the facial validity of the checkoff authorization and the General Counsel declined,
stating, “Your Honor, we are not alleging that it is a facially invalid [checkoff].” I also point out
that the General Counsel’s earlier position concerning the checkoff authorization was that it was
“ambiguous.” And at the trial while discussing with me the window period prior to the expiration
of the contract, the General Counsel conceded:
Well, I think both parties agree that during the 15 day period before October of 2008 that
the parties could revoke. . . . I’m not arguing that.”
The General Counsel then proceeded to explain that his argument was that the extension
agreements confused matters for employees seeking to revoke their authorizations. This is
directly contrary to the interpretation the General Counsel now takes in his brief. And of course
the events preceding the expiration of the 2003–2008 contract are well beyond the 10(b) period
covered by any charge in this case.
Because the complaint does not challenge the facial validity of the checkoff
authorizations and because the General Counsel has repeatedly stated that he is not doing so, I
conclude any effort to resolve the matter now would result in a denial of basic due process for
the Fry’s and the Union.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended4
ORDER
The complaint is dismissed.
Dated, Washington, D.C., May 3, 2011.
____________________
William G. Kocol
Administrative Law Judge

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 purposes.