UFCW Local 4

National Labor Relations Board - Administrative Judge Opinions

May 20, 2008

19-CB-009660 (N.L.R.B. May. 20, 2008)

JD(SF)–23–08
Whitefish, Mont.
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
UNITED FOOD AND COMMERCIAL WORKERS
UNION, LOCAL 4, affiliated with UNITED FOOD
AND COMMERCIAL WORKERS UNION
and
PAMELA BARRETT, An Individual
Case 19–CB–9660
Richard Fiol, Seattle, Washington,
for the General Counsel.
Caren Sencer and David Rosenfeld,
Alameda, Calif., for Respondent
BENCH DECISION, CERTIFICATION
and
ORDER
JAMES M. KENNEDY, Administrative Law Judge: This case was tried in Whitefish,
Montana on April 29, 2008. It was orally argued that day and the attached Bench Decision was
rendered immediately thereafter. The charge was filed on September 29, 2007 and amended
on November 23, 2007 by Pamela Barrett, an individual. The complaint issued January 31,
2007. Some technical amendments to both the complaint and the answer were made at the
hearing. The complaint alleges that Respondent has violated §8(b)(1)(A) of the Act.
Respondent’s answer denies the commission of any unfair labor practice.
After hearing the evidence on April 29, I determined that it was appropriate for me to
issue a bench decision under Board rule §102.35(a)(10). Pursuant to Board rule §102.45(a), I
hereby attach pages 130-140 of the transcript to this decision and CERTIFY that it (with
corrections as shown), is an accurate transcription of my decision as delivered.
JD(SF)–23–08
Based on my findings of fact, including discrediting the Charging Party’s testimony that
she never received Respondent’s letter of May 4, 2007, G.C.Exh. 3, and my conclusion of law
that Respondent did not breach its duty of fair representation, I recommend the Board issue the
following 1
ORDER
The complaint is dismissed.
____________________
James M. Kennedy
Administrative Law Judge
Dated, Washington, D.C., May 20, 2008.

1 If no exceptions are filed as provided by §102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in §102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
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22623 West 46th Terrace
Shawnee, Kansas 66226
(913)422-5198
(Off the record.)1
JUDGE KENNEDY: On the record.2
BENCH DECISION3
JUDGE KENNEDY: Back on the record. The General Counsel 4
and the Respondent, having made oral arguments covering both 5
the factual and the legal issues in this matter have been -–6
their arguments have been carefully considered and I am 7
[facially] impressed with the General Counsel’s Case, but on 8
further analysis I’ve come to the conclusion that the General 9
Counsel has not made the Case and I’m going to make some 10
findings now describing why that is so.11
Some of these findings are going to be pro forma and deal 12
with the normal things that have to be seen in a conclusionary 13
fashion. So, I’ll try to do this by paragraph number and if 14
Dave will keep me in line here with my numbering system, I’ll 15
try to do that. Okay.16
1. The Unfair Labor Practice Charge was filed by Pamela 17
Barrett on September 29, 2007 and she amended that Charge on 18
November 23, 2007. 19
2. Safeway, Incorporated is a Delaware Corporation 20
operating in Montana as a grocery chain. 21
3. Safeway is an Employer within the meaning of Section 22
2(2)2(6) and 2(7) and it’s in commerce based upon the pleadings.23
4. The union is a labor organization within the meaning 24
of paragraph –- Section 2, paragraph 5 of the Act and I 25
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apologize for the pronunciation here but I find that Nicholai 1
B. Cocergine…2
MR. COCERGINE: Cocergine, Your Honor.3
JUDGE KENNEDY: Cocergine.4
MR. COCERGINE: Yes, sir. 5
JUDGE KENNEDY: …is the President of Respondent and [its] 6
Chief Executive Officer.7
[6.]The union represents a Bargaining Unit of –- I would 8
guess it’d basically be retail store employees and I’m not 9
going to get into the specifics of it because they’re set forth 10
in paragraph 5 of the Complaint but they’re retail employees 11
employed by Safeway at its Whitefish, Montana grocery store and 12
those employees are all covered by a Collective Bargaining 13
Contract, which –- let’s see. Did I lose my number here? I 14
think it’s number 7 here anyway. 15
Number 6 was the Unit description here.16
7. At pertinent times the Collective Bargaining Contract 17
had a union security clause requiring membership of the 18
employees in the union within 30 days or -– for meeting a 19
financial obligation if they didn’t join the union[.] and that 20
the –- [pause]21
8. That the union [expends] money that it receives as 22
dues and fees from its membership and from the employees it 23
represents, which are both for representational activities and 24
some of these are for non-representational activities. 25
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9. On May 4th the union sent a letter to the newly-hired 1
Barrett in Respondent’s Exhibit 3 and I should point out that I 2
believe that she was hired on April 7th and notified of her 3
right to join or to become a financial core membership -- a 4
financial core member and of her rights under the Beck5
Doctrine. [The letter] also provided procedures to challenge 6
the allocations and the calculations that might have to be made 7
under the Beck doctrine.8
10. I find that Barrett received that letter as it was 9
sent in the due course –- in due course to her in the same 10
manner that it was sent to other new hires in other Bargaining 11
Units represented by the union. 12
11. About two weeks after she was hired she joined the 13
union and signed a dues check-off form. That was 11.14
12. In a May 9th letter she objected to payment of the 15
fees and dues for non-representational purposes and requested 16
full disclosure of verified financial expenditures.17
13. By letter of May 11 the union acknowledged her 18
resignation and said she was considered to be a dues objector.19
We’ll be off the record for just a moment here.20
(Off the record.)21
JUDGE KENNEDY: On the record.22
The May 11 letter enclosed two documents, one of which 23
was a –- is in evidence as General Counsel’s Exhibit 5, which 24
is a description of the –- [a] statement of expenses and 25
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allocations of expenses between chargeable and non-chargeable 1
expenses for Local 4, for Respondent and that’s a one-paged 2
document. 3
It also included a multiple-paged document from the 4
International Union, the parent International Union, which 5
covered most of the same materials and had another breakout, a 6
breakout quite similar to that seen in General Counsel’s 7
Exhibit 5. In the letter the dues membership Clerk, Jamie 8
DeLaurentis, stated “We have included a statement of expenses 9
and allocation of expenses between chargeable expenses and non-10
chargeable expenses of the UFCW, Local 4 for the year ending 11
December 31, 2006. 12
Also enclosed is a statement of expenses from the United 13
Food and Commercial Workers International Union for year ending 14
December 31, 2005, which we received on March 19, 2007.” Ms. 15
DeLaurentis explained that the International’s figures --16
breakdowns like this come on an unpredictable -– come in an 17
unpredictable manner, so these were the latest –- this was the 18
latest that they had –- that the union had from the 19
International.20
And she described the columns A and B in those documents. 21
The column A is the total expenses for the respective union. 22
Column B is expenses chargeable to representational activities 23
and column C is the non-chargeable expenses, which are not 24
chargeable to representational activities. It is, of course, 25
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the column C material, which would be deducted in some fashion 1
from the overall representational expenses.2
She also stated in the letter that in her opinion or in 3
the union’s opinion the statement of expenses refer[red] to 4
fair –- “represents fairly, in all material respects the total 5
expenses of UFCW, Local 4 and the allocation of expenses 6
between chargeable expenses and non-chargeable expenses for the 7
year ending December 31, 2006. These figures are from our 8
final third party reviewed end -- reviewed year-end financials 9
and you have a right to challenge the allocation of 10
representational and non-representational expenses.” end quote.11
14. On May 16 the union sent Ms. Barrett a letter 12
advising that -- her that as a dues objector it had calculated 13
her fee as –- her monthly fee as being $31.50 per month.14
Did I say that was number 14?15
COURT REPORTER: You’re on 15 now.16
JUDGE KENNEDY: I’m at 15 now. Okay.17
15. On May 29 Barrett claimed, by a letter, that she had 18
not been provided with information sufficient for her to make –19
- to understand the fee as it had been calculated. She asked 20
for her procedural rights in that letter. However, I find that 21
she had been provided with those procedural rights in [the] May 22
4th letter. She asked for financial disclosure for the –- and 23
for the calculations of the fee[s] yet these had been provided 24
also in the May 11 letter and the GC-5, which was included in 25
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the letter. She also asked for a verification of the figures 1
by an independent Certified Public Accountant. Now I want to 2
comment on that. Such a request or a demand [in] the way it 3
was characterized, is not an accurate statement of what the 4
union must provide to a dues objector. 5
Then in that letter Ms. Barrett demanded that she be 6
relieved of all dues obligations because in her opinion the 7
information, which had been provided to her was insufficient. 8
In her –- [H]er statement in the letter was “If the union does 9
not possess such financial disclosure, or if it is not provided 10
to me, then you have no right to collect any fees from me as a 11
condition of employment.” 12
16. The union responded by letter of June 15 that --13
this again by Ms. DeLaurentis that –- essentially that the 14
union was small and had very few non-chargeable expenses and so 15
that was the explanation for the high rate that the -- of 95%, 16
a rate that had been set forth in the –- in GC-5 and it 17
reiterated that she was getting a discount of $31.50 per month 18
instead of the $33.00 per month charged full members.19
She also noted in that letter that there had been a CPA 20
letter included in the International’s submission.21
17. On December 14th the union issued Barrett a refund in 22
the lower amount, which essentially is in a refund of $29.80. 23
She refused to accept the check. I find that this refund was 24
entirely unnecessary. It seems to have been a -– based on a 25
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cautionary belief that somehow there might have been something 1
wrong with its figures found in GC-5. I do not find that to be 2
the case and I believe that General Counsel’s Exhibit 5 is a 3
fair representation and fairly provides Ms. Barrett with 4
information on which to take further steps if she chooses. In 5
any event, as I understand it the parties have stipulated, I 6
guess, that Barrett refused to accept the check7
18. In the December 14th transmittal letter, let’s see, 8
there was included an independent Public Accountant’s review 9
report dated December 31, 2006. That was the most recent 10
review, which had been conducted [by] an outside agency. That 11
firm is the Newland and Company, apparently an accounting firm 12
in Butte, Montana. 13
I guess, Ms. Sencer, that the heading there under that 14
independent Accountant’s report from Newland I read that to say 15
CPA’s but it’s kind of curved in the Xerox. It’s hard for me 16
to [read] it but I guess you assert that they are indeed 17
Certified Public Accountants.18
MS. SENCER: Yes.19
JUDGE KENNEDY: Okay. That’s all I really need. 20
Now I find, though, [what] the Newland Company did on 21
February 19, 2007 was not an audit in the generally used sense 22
as the accountancy industry would use it. Nevertheless, it 23
reflects this Accountant’s -– accountancy firm’s view that 24
there is no reason to modify the financial statements as they 25
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had been written and therefore, I think this is a fair 1
statement of their assessment that things are okay with the 2
material set forth therein and it is from that, of course, that 3
General Counsel’s Exhibit 5 was created. In this regard I 4
observe that all financial reviews and all audits rely on 5
material provided by the management of the enterprise being 6
audited and indeed the Newland letter so states. They 7
acknowledge that they are less in scope than -- in scope than 8
an audit and, of course, they say the objective[…] Well[…] And 9
they weren’t suggesting they were performing an audit but they 10
were making the review that they did and they didn’t have any 11
doubts about the accuracy of the material at that point. 12
So, therefore, I find that because General Counsel’s 13
Exhibit 5 is based on the material set forth in the independent 14
Accountant’s report that General Counsel’s Exhibit 5 adequately 15
did break down the types of expenditures which were made and 16
shows the -– how -– shows the categories, which are chargeable 17
to representational activities and which are not. Now, the 18
only doubt that that would leave is whether or not the figures 19
themselves are accurate and that is, of course, beyond the 20
obligation of the Auditor. That is, in fact, the obligation of 21
the union itself and the figures there may be challenged under 22
the Beck Rules and that -- so far as I know Ms. Barrett has not 23
challenged these figures but she certainly has had sufficient 24
information that she could if she chose and procedures, of 25
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course, have been provided to her. (I know she says she didn’t 1
receive the letter of May 4th, which describe those matters but 2
as I said I find that she did receive it and I’m sure she can 3
get another copy of it [and] the union would provide it for her 4
if she requested it.)5
So, therefore, in conclusion as a matter of law I find 6
that the union has not breached the duty of fair representation 7
regarding Barrett’s –- regarding Barrett by assigning to her a 8
monthly due[s] figure of $31.50. The union’s treatment here of 9
Barrett was fair under the doctrine set forth in Beck, 10
California Saw and KGW Radio.11
As a final comment on this, I know that Respondent made 12
an argument with respect to whether the NLRB’s General Counsel 13
was seeking a different level of review [than] -- that required 14
by Department of Labor regulations -- when the unions file 15
their LM2 reports annually -- and I’d like to point out that I 16
think that given the fact that the LM2’s are verified by the 17
union and that the documents themselves contain material that 18
is later and maybe is the same as the material that’s set forth 19
in the objective breakdowns and that sort of thing, I think 20
that sufficient verification has indeed been made that those 21
numbers are accurate. Of course, they’re in a different 22
format, so it may be a little bit confusing but I do not find 23
that there’s anything wrong with what the union did here with 24
respect to using those numbers or referring anybody to those25
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numbers. 1
This is not to say that I disagree with the General 2
Counsel when he says that the union can’t put the burden on an 3
employee to go chasing the DOL numbers. I think the DOL 4
numbers and the documents there are publicly available but I 5
don’t think that an individual employee is obligated to go hunt 6
them down for him or herself. Still, I don’t see that holding 7
the –- that the Labor Board, under its Act, has any greater 8
right to a higher standard of financial care than does the 9
Department of Labor. 10
So, if the union meets the standard that is set forth by 11
the Department of Labor of care with respect to the financials 12
it has, I think, adequately verified, if you will, what needs 13
to be verified and meets the duty of care to an employee when 14
it meets that same level of care. I can’t see why there would 15
be any difference in that. 16
Now, I’m also going to comment, however, that, [this] is 17
not really a finding that I need to make here in terms of the 18
dismissal but I just would observe the argument –- that the 19
union’s argument here is more persuasive than that of the 20
General Counsel. All right.21
That concludes my Decision and I will, as I described off 22
the record, issue a -– when the transcript becomes available I 23
will rather quickly issue a certification of transcript and 24
Decision and at that time anybody who chooses is free to file 25
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an Appeal with the Board under the normal review procedures. I 1
will -– I think we -– there’s a due date that comes out with 2
the order –- showing what the due date for that will be. I 3
don’t have to state it here. All right. 4
Does anybody think I need to be –- clarify anything in 5
any of my findings? Nobody saying [anything], I will declare 6
the Hearing closed. Off the record.7
(Whereupon, the Hearing in the above-entitled matter was 8
closed.)9
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