Albertson's/Max Food Warehouse

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 410 Albertson’s/Max Food Warehouse and Claudette Tux- horn, Petitioner and United Food and Commer- cial Workers Union, Local Union No. 7. Case 27– UD–99 September 30, 1999 DECISION ON REVIEW AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX, LIEBMAN, HURTGEN, AND BRAME The issue presented in this case is whether the union- security deauthorization procedures contained in Colo- rado’s labor law, which place greater limits than Federal law on the ability of employees to seek deauthorization, are preempted by the National Labor Relations Act (NLRA). For the reasons that follow, we hold that those limitations are inconsistent with the precepts of the NLRA and, therefore, must yield to Federal law. Local 7 of the United Food and Commercial Workers Union (the Union) is the exclusive representative of a unit of employees at Albertson’s/Max Food Warehouse (the Employer). The Union and the Employer are parties to a collective-bargaining agreement which contains a union- security clause. On April 28, 1998, the Petitioner, a mem- ber of the bargaining unit, filed a deauthorization petition with the Board’s Regional Office in Denver. On May 12, 1998, the Regional Director dismissed the petition, finding that under City Markets, Inc., 266 NLRB 1020 (1983), the petition was inappropriately filed with the Board, and in- stead should have been filed with the Colorado Depart- ment of Labor and Employment. Thereafter, on May 19, 1998, the Petitioner filed a timely request for review of the Regional Director’s dismissal of the petition. The Peti- tioner’s request for review is granted. Having carefully reviewed the case, including the un- disputed facts, the Petitioner’s brief, and Board precedent, we conclude that the proper course is to overrule City Markets and reverse the Regional Director’s dismissal of the petition. I. FACTS For a number of years, the Union has represented a unit of employees at the Employer’s Clifton, Colorado store. On November 10, 1989, pursuant to an authorization elec- tion held by the Colorado Department of Labor and Em- ployment, the unit employees voted 42 to 6 in favor of a union-security agreement requiring all employees to join or pay dues to the Union as a condition of employment.1 From that time through the present,2 the collective- bargaining agreements between the parties have contained a union-security provision. 1 The Colorado Labor Peace Act authorizes the parties to a collective- bargaining agreement to enter into a union-security agreement when either a majority of all the employees eligible to vote or three-quarters or more of the employees actually voting vote in favor of such an agreement. Colo. Rev. Stat. § 8–3–108(1)(c)(I). 2 The current collective-bargaining agreement between the parties re- mains in effect through December 4, 1999. On April 28, 1998, the Petitioner, a member of the bar- gaining unit at issue, filed a deauthorization petition with the Board pursuant to Section 9(e)(1) of the NLRA, which provides for a secret ballot election upon the filing of a petition by 30 percent or more of the unit employees seek- ing a rescission of authorization for the union-security provision.3 Relying on the Board’s decision in City Mar- kets, supra, the Regional Director dismissed the petition based on the finding that the petition must be timely filed in the state forum which authorized the union-security agreement in the first instance. II. ANALYSIS The NLRA permits an election on a deauthorization pe- tition at any time, provided there has not been a valid elec- tion within the preceding 12-month period. See Section 9(e)(2).4 In comparison, the Colorado Labor Peace Act permits the filing of a deauthorization petition only within a 15-day window period—the period of time between 120 and 105 days prior to the end of the collective-bargaining agreement or the triennial anniversary of the date of such agreement. See Colo. Rev. Stat. § 8–3–108(III)(B). Thus, as Colorado’s deauthorization provisions place greater restraints than Federal law on unit members’ right to file a deauthorization petition, the provisions generally are “less restrictive” of (i.e., foster the maintenance of) union- security agreements than those contained in the NLRA. See Asamera Oil (U.S.) Inc., 251 NLRB 684, 685 (1980). The Board in the past has squarely addressed the issue of the interplay between the provisions of the NLRA and Colorado’s Labor Peace Act concerning union-security agreements and the fora available to unit employees with respect to such provisions. In Asamera Oil, the State of Colorado, in accordance with the Labor Peace Act, con- ducted an election among the unit employees to ascertain their desire for a union-security agreement. As a majority of the employees eligible to vote favored such an agree- ment, the State appropriately issued a certificate indicating that a union-security agreement would be permitted. Thereafter, the union and employer executed a collective- bargaining agreement containing a union-security clause. 3 Sec. 9(e)(1) of the NLRA provides: Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and labor organization made pursuant to section 8(a)(3), of a petition alleging they desire that such authorization be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer. 4 Sec. 9(e)(2) of the NLRA states that “[n]o election shall be conducted pursuant to this subsection in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held.” 329 NLRB No. 44 ALBERTSON’S/MAX FOOD WAREHOUSE 411 Approximately 7 months after the election, a unit employee filed a deauthorization petition with the Board. Under those facts, the Board majority in Asamera Oil dismissed the deauthorization petition, finding that the petition did not satisfy the requirements of Section 9(e)(2) of the NLRA, in that the petition was filed less than 1 year following the occurrence of the Colorado union authoriza- tion election. Id. In a concurrence, however, then- Chairman Fanning concluded that the petition should have been dismissed based on the alternative theory that the petitioner should be left “to the forum that gave it the right to vote on union security in the first instance.” Id. at 686. In reaching that conclusion, Chairman Fanning opined that the fact that Colorado’s deauthorization provisions were less restrictive of union-security agreements than Federal law did not bar their enforcement, as Section 14(b) of the NLRA did not intend to authorize only those state laws which are in every respect more restrictive of union secu- rity than Federal law. Id. at 685. Characterizing his analysis as a “concern for the legislative process,” Chair- man Fanning determined that although the Colorado stat- ute’s time restrictions for utilization of the deauthorization procedures were less restrictive of union-security agree- ments than Federal law, they served as a “quid pro quo” for the Colorado statute’s more restrictive initial authoriza- tion procedures.5 Id. Three years later, in a one-paragraph decision, a Board majority adopted Chairman Fanning’s concurrence in Asamera Oil. City Markets, 266 NLRB 1020. In City Markets, the Board dismissed a deauthorization petition filed with the Board pursuant to Section 9(e)(1) of the NLRA, deeming it to be filed in the inappropriate forum. Citing Chairman Fanning’s concurrence in Asamera Oil, the Board majority reasoned that, as the union-security agreement at issue was created as a result of the proce- dures set forth in Colorado’s labor law—which was prop- erly enacted pursuant to Section 14(b) of the NLRA—any deauthorization of the agreement should occur pursuant to those same legislative procedures. Id. For the reasons that follow, we believe that the approach taken by the concurrence in Asamera Oil6 and adopted by the Board in City Markets does not properly effectuate the purpose and intent of the NLRA. In the 1947 amendments to the NLRA, Congress chose to prohibit the previously accepted closed-shop arrangement—under which an indi- vidual could be required to be a union member as a pre- requisite to employment—and undertook extensive regula- tion of union-security agreements. At the same time, in recognition of the fact that numerous state “right-to-work” 5 While the NLRA simply authorizes an employer and a union to collec- tively bargain for a union-security agreement, see Sec. 8(a)(3), the Colo- rado statute requires an affirmative vote of at least a majority of all the employees eligible to vote or three-quarters or more of the employees who actually voted. See C.R.S. § 8–3–108(1)(c)(I). 6 Chairman Truesdale notes that the Board’s decision today is consistent with the majority decision in Asamera Oil, in which he participated. laws had been enacted, Congress determined that it was appropriate to permit the states concurrently to restrict union-security agreements. Thus, Section 14(b) of the NLRA provides: Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Ter- ritorial law. In Retail Clerks Local 1625 v. Schermerhorn, 375 U.S. 96, 100–101 (1963), the Supreme Court stated that Con- gress specifically included this provision in the NLRA to express its clear intent not to preempt state regulation of union-security agreements; the Court then concluded that as Congress “did not deprive the States of any and all power to enforce their laws restricting the execution and enforcement of union-security agreements,” a state had the right to enforce a right-to-work provision in its state con- stitution. Schermerhorn, 375 U.S. at 102 (emphasis added). Although the Supreme Court in Schermerhorn was not faced with deciding whether state laws that ex- pand the execution and enforcement of union-security agreements beyond the provisions of Federal law (i.e., provisions that are less restrictive than Federal law) would be enforced, we believe its language supports our view that Congress intended to authorize only more restrictive state legislation. This view is consistent with the legislative history of the NLRA. Referencing the section that would become 14(b), the House Report on the 1947 NLRA amendments dis- cussed the States’ concurrent right to regulate union-security agreements, even if the state “laws limit compulsory union- ism more drastically than does Federal law.” 1 Leg. Hist. 325 (LMRA 1947). Even more elucidating, the report re- marked that “it goes without saying that no State may in- validate . . . restrictions or conditions that the amended La- bor Act will put upon compulsory unionism.” Id. We think it is evident that through Section 14(b), Con- gress intended to authorize only those state laws that are more restrictive of union-security agreements than Federal law, and thus, Federal law will take precedence over any less restrictive state law.7 Indeed, a recent Board decision involving the same state statute at issue in the instant case strongly supports this conclusion. In Teamsters Local 435 (Mercury Warehouse), 327 NLRB 458 (1999), the union argued that, as a result of Colorado’s enactment of union- security legislation, the Board was deprived of jurisdiction to decide whether the union had failed to inform unit em- ployees of their Beck8 rights as required under the NLRA 7 It is axiomatic, for example, that if a state law were to authorize a closed-shop agreement, the state law clearly would be preempted by the NLRA. 8 Pursuant to the Supreme Court’s decision in Communications Workers v. Beck, 487 U.S. 735 (1988), a union seeking to obligate an employee to DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 412 (as interpreted by the courts).9 The Board squarely re- jected this argument, stating that the union’s “contention that Colorado state law permits it . . . to apply a broader union-security arrangement than that permitted by Federal labor law, as interpreted by the Supreme Court in Beck and subsequently applied by the Board, is . . . meritless.” Mer- cury Warehouse, 327 NLRB 458 at 460 (footnote omit- ted). Further, the Board reiterated (id.) that While the states are thus free under Section 14(b) to prohibit union-security arrangements, and may place restrictive conditions precedent on enforcement of union-security arrangements as does the State of Colorado, Section 14(b) does not permit the States to sanction a more expansive union-security arrange- ment than permitted by Federal law. [Emphasis added.]10 Based on all of the foregoing, we believe that City Mar- kets must be overruled, as it fails to effectuate the purposes of the NLRA and frustrates congressional intent. As the clear purpose of Section 14(b) of the NLRA was to reserve for the states the power to further restrict union-security arrangements, Congress could not have intended the anomalous result reached in City Markets. Requiring unit employees to wait months or years beyond the period set forth in the NLRA to rescind a union-security agreement they no longer desire would significantly impinge upon the statutory rights Congress granted to employees. In this instance, for example, employees who wished to exercise their right to deauthorize the union-security agreement would be required to wait approximately 15 months pur- suant to Colorado’s deauthorization procedures, whereas pay dues/fees pursuant to a union-security agreement must notify the em- ployee that, inter alia, the employee has the right to be/remain a nonmem- ber and that nonmembers have the right to object to paying (and to receive a reduction in) fees for union activities that are not related to the union’s duties as bargaining agent. 9 The union in Mercury Warehouse argued that Colorado state law per- mitted it to charge nonmember objectors for nonrepresentational activities, and thus to apply a broader union-security agreement than allowed under the NLRA. 10 Our colleagues assert that Mercury Warehouse is distinguishable be- cause it dealt with substantive Federal rights (the right of objecting non- members not to pay dues to support the union’s nonrepresentational activi- ties), whereas the instant case only deals with when employees can exer- cise their right to have a deauthorization election and does not restrict their right to such an election. We disagree. Congress was clearly concerned not only about the right to a deauthorization election, but also about when that right could be exercised. The Board has held that “it is clear” under the provisions of Sec. 9(e) that the normal contract bar principles estab- lished by the Board cannot be applied to deauthorization petitions. Great Atlantic & Pacific Tea Co., 100 NLRB 1494, 1495 (1952). The sole con- gressional restriction on such elections is that they cannot be held within 12 months of another such election. As discussed above, however, Colorado law would impose a further restriction on the Federal right of employees to a deauthorization election, and effectively impose a contract bar by limit- ing the filing of such petitions to a 15-day window period approximately 4 months prior to the end of the contract or the 3-year anniversary of the contract. Thus, like Mercury Warehouse, this case also deals with substan- tive Federal rights. the employees presumably could have proceeded with the deauthorization immediately under Federal standards, as there is no claim that any election occurred within the pre- ceding 12 months. That the Colorado statute may make the creation of a union-security agreement more difficult in the first instance does not compensate for the fact that the employees are later denied the right accorded to them by Federal law to rescind such an agreement. For all the foregoing reasons, we overrule City Markets. Instead we find that the timeliness of the petition must be determined under the provisions of the NLRA. Accord- ingly, we shall reverse the Regional Director’s dismissal of the petition and remand to the Regional Director for further processing of the petition. ORDER The Regional Director’s dismissal of the instant petition is reversed, and this case is remanded to the Regional Di- rector for further action in accordance with this decision. MEMBERS FOX AND LIEBMAN, dissenting. The issue in this case is whether an employee seeking a deauthorization election should be required to file her peti- tion under the procedures authorized by the State of Colo- rado. Contrary to our colleagues, and substantially for the reasons stated in then-Chairman Fanning’s concurring opinion in Asamera Oil (U.S.) Inc., 251 NLRB 684 (1980), adopted by the Board in City Markets, 266 NLRB 1020 (1983), we would affirm the Regional Director’s decision to dismiss the petition in this case. We do not quarrel with our colleagues’ conclusion that, in enacting Section 14(b) of the Act, Congress intended only to authorize “more restrictive” state legislation con- cerning union security. See Algoma Plywood Co. v. Wis- consin Employment Relations Board, 336 U.S. 301, 313– 314 (1949); and Teamsters Local 435 (Mercury Ware- house), 327 NLRB 458, 460 (1999). But, as Chairman Fanning persuasively reasoned in Asamera Oil, we “do not read Algoma to suggest that Section 14(b) only authorizes the States to enact legislation which is in every single re- spect ‘more restrictive’ of union security than Federal law is.” 251 NLRB at 685 (emphasis added). Considering the Colorado Labor Peace Act’s require- ments for the ratification and rescission of union-security agreements as a whole,1 its time limitations on the filing of 1 The relevant provisions of the Colorado Labor Peace Act state as fol- lows: (II)(A) Any [union-security] agreement as defined in section 8– 3–104(1) between an employer and a labor organization in existence on June 29, 1977, which has not been voted upon by the employees covered by it may, by written mutual agreement of such employer and labor organization, be ratified and upon such ratification shall be filed with the director. Any agreement as defined in section 8– 3–104(1) between an employer and a labor organization in existence on June 29, 1977, which has not been ratified and filed, as provided in this subparagraph (II), shall not be legal, valid, or enforceable during the remaining term of that labor contract unless and until ei- ther the employer, the labor organization, or at least twenty percent of the employees covered by such agreement file a petition upon ALBERTSON’S/MAX FOOD WAREHOUSE 413 a deauthorization petition2 are an integral part of an overall mechanism which is in fact significantly “more restrictive” than Federal law, because it requires employees to author- ize union-security agreements by a majority of all eligible voters, or by 75 percent of those voting. By contrast, the National Labor Relations Act, which permits deauthoriza- tion petitions to be filed at any time, requires no ratifica- tion vote by employees to effectuate a union-security agreement. As Chairman Fanning reasoned, “that Colo- rado may require opponents of union security to wait, de- pending upon the length of the contract, 8, 20, or 32 months to file a deauthorization petition logically can be expected to be a function of the fact that, in the first in- stance, it has required proponents of union security to demonstrate a level of support far beyond that required by Federal law.” Asamera Oil, supra at 685. Thus, we agree with former Chairman Fanning that, viewed as part of an overall regulatory scheme, the deauthorization procedures of the Colorado Labor Peace Act do not exceed the “de- gree of jurisdictional freedom Section 14(b) leaves with the States.” Id. forms provided by the division, demanding an election submitting the question of the all-union agreement to the employees covered by such agreement and said agreement is approved by the affirmative vote of at least a majority of all the employees eligible to vote or three-quarters or more of the employees who actually voted, which- ever is greater, by secret ballot in favor of such all-union agreement in an election provided for in this paragraph (c) conducted under the supervision of the director. Colo. Rev. Stat. § 8–3–108(1)(c)(II)(A). (III) The director shall declare any such all-union agreement term d whenever: inate . . . . (B) The employer or twenty percent of the employees covered by such agreement file a petition with the director on forms provided by the division seeking to revoke such all-union agreement and, in an election conducted under the supervision of the director, there is not an affirmative vote of at least a majority of all the employees eligible to vote or three-quarters or more of the employees who actually voted, whichever is greater, in such election by secret ballot in favor of such all-union agreement. Such petition may only be filed within a time period between one hundred twenty and one hundred five days prior to the end of the collective bargaining agreement or prior to a triennial anniversary of the date of such agreement, and the divi- sion must complete said election within sixty days prior to the termi- nation or triennial anniversary of said collective bargaining agree- ment. The director may conduct an election within a collective bar- gaining unit no more often than once during the term of any collec- tive bargaining agreement or once every three years in the case of agreements for a period longer than three years. Id. § 8–3–108(1)(c)(III)(B). 2 Petitions may be filed between 120 and 105 days prior to the end of a collective-bargaining agreement or prior to the triennial anniversary of the date of such an agreement. Contrary to the assertion of our colleagues, our recent decision in Mercury Warehouse, supra, is not inconsistent with our position. In Mercury Warehouse, the Board re- jected the union’s argument that, because Colorado law- fully exercised its jurisdiction to regulate union-security agreements in the Labor Peace Act, the Board was de- prived of jurisdiction to decide issues arising under Com- munications Workers v. Beck, 487 U.S. 735 (1988), in- volving the union’s expenditures of dues or fees on non- representational activities over the objections of a non- member employee. Holding that Section 14(b) of the Act does not license the States to sanction more expansive union-security arrangements than that allowed by Federal law, the Board held that Colorado state law could not be read to permit a union to charge objecting nonmembers for nonrepresentational expenses. Mercury Warehouse, supra, at 460. Clearly, the issue in Mercury Warehouse raised substan- tive Federal concerns. By contrast, in this case, the issue is essentially as Chairman Fanning put it: “Employees have the right, as Section 9(e)(1) evidences, to challenge union-security clauses. But when the right attaches does not seem to me to have been as discernible a Federal con- cern.” Asamera Oil, 251 NLRB at 685–686. In short, the time limits, or “window period,” under Colorado law for the filing of a petition to rescind a union-security agree- ment in no way restricts employees’ right to deauthorize such an agreement in derogation of Federal law; it simply limits when that right can be exercised.3 Accordingly, we would adhere to City Markets and re- quire the deauthorization petitioner to file for an election under the provisions of the Colorado Labor Peace Act. Respectfully, we dissent, and would affirm the Regional Director’s decision to dismiss the petition. 3 Cf. Nielsen v. Machinists, 94 F.3d 1107, 1116 (7th Cir. 1996). (“Life is full of deadlines, and we see nothing particularly onerous about this one. When people miss the deadline for filing an appeal to this Court, their rights can be lost forever, not just for eleven months, but that does not make time limits for filing an appeal in violation of the law.”)