Food & Commercial Workers Local 648 (Safeway), (2006)

United Food and Commercial Workers Union, Local 648, United Food and Commercial Workers International Union1 (Safeway, Inc.) and Cynthia Schaer. Case 20–CB–11846–1

August 7, 2006

DECISION AND ORDER

By Chairman Battista and Members Schaumber and Walsh

On September 16, 2003, Administrative Law Judge James M. Kennedy issued the attached decision. The Respondent Union filed exceptions and a supporting brief, the General Counsel filed an answering brief to the Respondent’s exceptions, and the Respondent 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,2 and conclusions only to the extent consistent with this Decision and Order, and to adopt the recommended Order as modified and set forth in full below.

The judge found, and we agree, that the Respondent Union violated Section 8(b)(1)(A) and 8(b)(2) of the Act by causing the Employer, Safeway, Inc., to discharge Charging Party Cynthia Schaer on October 11, 2002,3 without having informed her of her rights under NLRB v. General Motors Corp., 373 U.S. 734 (1963), and Communications Workers v. Beck, 487 U.S. 735 (1988),4 and without having provided her with a specific tabulation of the amount of dues and fees she owed and the method used to calculate this amount, as required under Philadelphia Sheraton Corp., 136 NLRB 888 (1962), enfd. 320 F.2d 254 (3d Cir. 1963). However, we reverse the judge’s further findings that the Respondent earlier independently violated Section 8(b)(1)(A) by failing to inform Schaer of her General Motors and Beck rights when the Union presented her with membership documents on April 30.5 In our view, to find these unalleged violations, as the judge did here, would, under the circumstances of this case, raise serious due process concerns.

The judge based his finding of the Section 8(b)(1)(A) violation relating to the Respondent’s April 30 conduct in large part on the undisputed testimony of Charging Party Schaer, who started work in the bargaining unit represented by the Union at Safeway on February 22. Schaer stated that, after learning that she had to join the Union, she went to the Respondent’s headquarters on April 30. There, Schaer spoke to a woman identified in the record as “Elsa,” and signed a membership application. The judge found, inter alia, that

[a]lthough Elsa did not testify, there is no disagreement that during this transaction [ ] neither Elsa nor anyone else from the Union informed Schaer that . . . she could whittle [her membership obligations] down to a “financial core” [as described in General Motors, supra] or told her that she was entitled [under Beck, supra] to know what the non-representational portion of the dues and fees were, so she could decline to pay them.

The judge found that the Respondent’s “active effort to conceal from Schaer her right to General Motors and Beck information” tolled the limitations period, and that the Respondent’s failure to inform Schaer of information concerning reduced dues and fees under General Motors, supra, and Beck, supra, violated Section 8(b)(1)(A).

As noted above, we reverse the judge. In our view, the General Counsel made a deliberate choice not to place the lawfulness of the April conduct at issue in this proceeding. The General Counsel did not allege in the complaint that the Union’s April 30 conduct was unlawful, nor did he amend the complaint at the hearing to make such an allegation or argue in his brief to the judge that such a violation should be found. It is only in his brief to the Board that the General Counsel argues that the judge correctly found this 8(b)(1)(A) violation.

In light of the above, we find that the judge erred in passing on and finding that the April 30 encounter between Schaer and Elsa violated the Act. For whatever reason, the General Counsel decided not to pursue the issue of whether the Respondent’s conduct on that date was unlawful. Indeed, his failure to do so may explain why the Respondent did not call Elsa or other witnesses to testify about the encounter. In sum, the General Counsel’s presentation of the case in the complaint, at the hearing, and in his brief to the judge failed to place the Respondent on notice that the lawfulness of its conduct on April 30 would be the basis for a separate finding of a violation. To find an unfair labor practice in these circumstances raises serious due process concerns. Instead, in disagreement with the judge, we decline to find an unfair labor practice based on the Respondent’s April 30 conduct.6

As a remedial matter, the judge required that the Respondent Union provide Schaer with a breakdown of dues and fees, i.e., delineating representational versus nonrepresentational expenses. We disagree. Although Board law requires that employees be told of their General Motors and Beck rights at the time when they are told of their union-security obligations, current Board law does not require that the above-mentioned kind of breakdown be given at that juncture. Teamsters Local 166 (Dyncorp Support Services), 327 NLRB 950, 952 (1999), revd. in relevant part Penrod v. NLRB, 203 F.3d 41 (D.C. Cir. 2000). No party seeks to reverse that Board law, and the General Counsel does not allege a violation in this regard. Accordingly, in order to tailor the remedy to the violation, we will not impose that remedy.7

ORDER

The National Labor Relations Board orders that the Respondent, United Food and Commercial Workers Union, Local 648, United Food and Commercial Workers International Union, San Francisco, California, its officers, agents, and representatives, shall

1. Cease and desist from

   (a) Attempting to cause and causing Safeway, Inc. to terminate the employment of Cynthia Schaer, or any other employee, for failing to pay union dues and fees pursuant to a union-security clause without first notifying them of their rights to remain nonmembers under NLRB v. General Motors Corp., 373 U.S. 734 (1963), and, as nonmembers under Communications Workers v. Beck, 487 U.S. 735 (1988), to object to paying for activities not germane to the Union’s duties as bargaining agent, and to obtain a reduction in fees for such activities, with sufficient information to enable them to intelligently decide whether to object, as well as a description of any internal union procedures for filing objections, and without advising them of the amount of the dues delinquency (showing the calculation), and affording them a reasonable opportunity to pay the amounts owed.

   (b) In any like or related manner restraining or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the purposes of the Act.

   (a) Make Cynthia Schaer whole for any loss of wages or other rights and benefits she may have suffered as the result of the Respondent’s unlawful conduct, with interest.

   (b) Notify Safeway, Inc. in writing, with a copy to Cynthia Schaer, that it has no objection to her employment, and that it requests that she be reinstated.

   (c) Notify Cynthia Schaer in writing that it will not request or cause Safeway, Inc. to discharge her for nonpayment of dues without first having notified her of her rights to remain a nonmember under NLRB v. General Motors Corp., 373 U.S. 734 (1963), and, as a nonmember under Communications Workers v. Beck, 487 U.S. 735 (1988), to object to paying for union activities not germane to the Union’s duties as bargaining agent, and to obtain a reduction in dues and fees for such activities, with sufficient information to enable her to intelligently decide whether to object, as well as a description of any internal union procedures for filing objections, and without advising her of the amount of her delinquency (showing the calculation) or affording her a reasonable opportunity to pay the sum owed.

   (d) Within 14 days of the date of this Order, remove from its files, and ask Safeway, Inc. to remove from its files, any reference to the discharge of Cynthia Schaer, and within 3 days thereafter notify Cynthia Schaer in writing that it has done so and that it will not use the discharge against her in any way.

   (e) Within 14 days after service by the Region, post at its business office and meeting hall copies of the attached notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.

   (f) Within 14 days after service of the Region, deliver to the Regional Director for Region 20 signed copies of the notice in sufficient numbers to be posted by Safeway, Inc. in all places where notices to employees are customarily posted, if it is willing.

   (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

   Dated, Washington, D.C. August 7, 2006

   ______________________________________

   Robert J. Battista, Chairman

   ______________________________________

   Peter C. Schaumber, Member

   (seal) National Labor Relations Board

   Member Walsh, concurring.

   I agree with my colleagues’ adoption of the judge’s finding that the Respondent unlawfully caused the Employer to discharge Charging Party Cynthia Schaer in violation of Section 8(b)(1)(A) and (2) of the Act. And while I also agree with my colleagues reversal of the judges finding that the Respondent earlier...