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

National Labor Relations Board - Board Decisions

Jul 10, 2012

358 N.L.R.B. 704 (N.L.R.B. 2012)

704
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

358 NLRB No. 66
Smith’s Food & Drug Centers, Inc. d/b/a Fry’s Food
Stores and Karen Medley and Kimberly Stewart
and Elaine Brown and Shirley Jones and Sa-
loomeh Hardy and Janette Fuentes and Tommy
Fuentes

United Food and Commercial Workers Union Local
99 and Kimberly Stewart and Elaine Brown and
Karen Medley and Shirley Jones and Saloomeh
Hardy and Janette Fuentes and Tommy Fuentes.
Cases 28–CA–022836, 28–CA–022837, 28–CA–
022838, 28–CA–022840, 28–CA–022858, 28–CA–
022871, 28–CA–022872, and 28–CB–007045, 28–
CB–007047, 28–CB–007048, 28–CB–007049, 28–
CB–007058, 28–CB–007062, and 28–CB–007063
July 10, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On May 3, 2011, Administrative Law Judge William
G. Kocol issued the attached decision. The Acting Gen-
eral Counsel and the Charging Parties each filed excep-
tions and a supporting brief. The Respondent Employer
and the Respondent Union each filed an answering brief
to the Acting General Counsel’s and the Charging Par-
ties’ exceptions. The Acting General Counsel filed reply
briefs to the Respondent Employer’s and the Respondent
Union’s answering briefs. The Charging Parties filed a
reply brief to the Respondent Employer’s and the Re-
spondent Union’s answering briefs.1
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,2 and conclusions and
to adopt the recommended Order.

1 The Charging Parties seek to disqualify Board Members Block,
Griffin, and Flynn from ruling in this proceeding, arguing that their
recess appointments to the Board by the President were unconstitution-
al. For the reasons set forth in Center for Social Change, Inc., 358
NLRB 161 (2012), we reject this argument. Member Flynn is recused
and took no part in the consideration of this case.
2 In adopting the judge’s dismissal of the complaint, we note that (a)
the Acting General Counsel does not contest the facial validity of the
Respondent Union’s standard dues-checkoff authorization agreement,
and (b) there is no evidence that any of the Charging Parties attempted
to revoke––or even inquired about revoking––their authorizations dur-
ing any of the possible window periods. We thus find it unnecessary to
pass on the Respondent Union’s contention that we should give defer-
ence to its interpretation of the language of the authorization agree-
ment.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

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 De-
fense Foundation), of Springfield, Virginia, for the Charg-
ing 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)(3), (2), 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 authori-
zations 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 coerc-
ing 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 de-
meanor 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 organ-
ization 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 re-

1 I closed the hearing by order dated March 22, 2011.
2 All dates are 2009, unless otherwise indicated.
FRY’S FOOD STORES

705
signed 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 un-
tenable 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 hia-
tus between collective-bargaining agreements and during times
that were allowed under the terms of the checkoff authoriza-
tion. 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 author-
izations—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 un-
tethered 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 rough-
shod over our due process rights. One week the theory is X.
The next week the theory is Y. The following week the theo-
ry 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 . . . .

I agree completely with this statement.
B. Motions
The Union filed a motion to dismiss the portions of the com-
plaint 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 authoriza-
tions that these employees had signed. I concluded that Elec-
trical 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 ap-
pealed 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 previ-
ously 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, howev-
er, 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 peti-
tion 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 employ-
ees 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 rul-
ing. 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 doc-
uments 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 identifi-
cation of similarly situated employees will occur at the compli-
ance 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 employ-
ees 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 peri-
od 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—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 Local
12 (Northern Engraving Corp.), 337 NLRB 16 (2001), is di-
rectly 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) repre-

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

706
sentative 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 Octo-
ber 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 deduc-
tions in writing.
Fry’s and the Union were unable to agree to a successor con-
tract 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 Oc-
tober 27, 2012. A number of unit employees, including Charg-
ing 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

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 con-
sideration for the cost of representation and collective bar-
gaining 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 be-
tween 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 Lo-
cal 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 repre-
sentative, “Provided, That the employer has received from each
employee, on whose account such deductions are made, a writ-
ten assignment which shall not be irrevocable for a period of
more than one year, or beyond the termination date of the ap-
plicable collective agreement, whichever occurs sooner.”
The General Counsel argues that the Union and Fry’s violat-
ed 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 Septem-
ber 29, 2009, Respondent Union was on notice that her obli-
gation to pay dues ended on October 6, 2009, the expiration
date of her irrevocability period. By continuing to accept, re-
ceive, 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 member-
ship had on the checkoff authorizations signed by the employ-
ees. The starting point is to determine whether those checkoff
authorizations were contingent upon continued union member-
ship because in National Oil, supra, the Board held that an em-
ployee is bound by terms of a checkoff authorization notwith-
standing his resignation from union membership because the
language checkoff authorization clearly indicated an agreement
to pay dues irrespective of membership in the union. The lan-
guage 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 re-
lieve these employees of their obligations under the checkoff
authorizations to continue to make payments to the Union.
FRY’S FOOD STORES

707
The General Counsel, however, argues that resignation be-
comes the functional equivalent of revocation upon the expira-
tion 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 au-
thorization. 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 resigna-
tion 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 em-
ployees who resign from membership to escape from the win-
dow periods specified in the checkoff authorization form, win-
dow periods that are similar to those in the checkoff authoriza-
tions that Board found were lawful in Lockheed. Stated differ-
ently, 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 au-
thorizations 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 collec-
tive-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 authoriza-
tion and on October 12 and November 16, 2009, Medley noti-
fied Fry’s of the same. On September 30, November 9 and 13,
2009, Stewart notified the Union in writing that she was revok-
ing her checkoff authorization and on November 16, 2009,
Stewart notified Fry’s of the same. On September 30, Novem-
ber 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 re-
voking 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 writ-
ing that they were revoking checkoff authorization and on Oc-
tober 2 and November 11, 2009, J. Fuentes and T. Fuentes noti-
fied Fry’s of the same. In addition, during the 10(b) period in
this case, June 28 to November 12, 2009, other employees noti-
fied 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 speci-
fied in the checkoff authorizations and, thus, they were untime-
ly. Rather, the revocations occurred during the hiatus period
before a new contract was reached. The Union and Fry’s re-
fused to honor the revocations of the checkoff authorizations
and continued to deduct money from the wages of the employ-
ees 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 re-
straining and coercing employees in the exercise of their Sec-
tion 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 authoriza-
tions during time periods that are not specified in the authoriza-
tions 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 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 member-
ship 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

708
extension of any collective-bargaining agreement, or the pos-
sibility 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 differ-
ent 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 them-
selves 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 em-
ployees concerning their earlier attempts to revoke the authori-
zations.
Next, the General Counsel argues that during the hiatus be-
tween the old and new contracts:

Respondents during this period entered into at least eight ex-
tensions 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 authori-
zations.

But this argument too is meritless because it is premised on the
notion that employees are entitled to revoke their checkoff au-
thorizations during the window periods preceding the termina-
tion of the extension agreements. In Atlanta Printing Special-
ties, 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 subse-
quent collective-bargaining agreements. Moreover, as the Un-
ion explains in its brief, the rationale underlying Atlanta Print-
ing 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 Gen-
eral Counsel’s theory concerning the impact of the extension
agreements on checkoff revocations.
The General Counsel then cites Food & Commercial Work-
ers Local 1 (Big V Supermarkets), 304 NLRB 952 (1991), enfd.
975 F.2d 40 (2d Cir. 1992). But that case is clearly inapplica-
ble 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 result-
ed from the misleading acts of the Union rather ambiguity in-
herent 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 un-
lawful 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 descrip-
tion, the collective-bargaining agreement, including the rele-
vant the language from that contract concerning checkoffs, the
dates of the extension agreements, and the date a new collec-
tive-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 be-
came 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 extin-
guished 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 au-
thorization. To the contrary, by this statement the General
Counsel indicates that during the time periods before the expi-
ration 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:

FRY’S FOOD STORES

709
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 facial-
ly invalid.

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, stat-
ing, “Your Honor, we are not alleging that it is a facially inva-
lid [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 argu-
ment was that the extension agreements confused matters for
employees seeking to revoke their authorizations. This is di-
rectly contrary to the interpretation the General Counsel now
takes in his brief. And of course the events preceding the expi-
ration 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.

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.