Kroger Co.

KROGER CO. 847 The Kroger Company and Allan Partain United Food and Commercial Workers, Local 455, AFL–CIO and Allan Partain. Cases 16–CA– 19703 and 16–CB–5519 July 31, 2001 DECISION AND ORDER BY MEMBERS LIEBMAN, TRUESDALE, AND WALSH Upon charges filed by Allan Partain on January 11, 1999, against the Kroger Company and United Food and Commercial Workers, Local 455, AFL–CIO, the General Counsel of the National Labor Relations Board issued a consolidated complaint on March 18, 1999. The com- plaint alleges that the Respondent Kroger (Kroger) vio- lated Section 8(a)(1), (2), and (3) of the National Labor Relations Act and that the Respondent Union (Union) violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act. Kroger and the Union each filed a timely answer admitting in part and denying in part the allega- tions of the complaint. On June 10, 1999, the General Counsel, Kroger, the Union, and the Charging Party filed a petition to transfer case to the Board and stipulation of the record. The par- ties waived a hearing before an administrative law judge and the issuance of an administrative law judge’s deci- sion and recommended Order. The parties agreed that the charges, the consolidated complaint, the answers, and the stipulation with attachments shall constitute the entire record in this case and that no oral testimony is necessary or desired by any of the parties. On August 13, 1999, the Board approved the stipula- tion and transferred the proceeding to the Board. There- after, the General Counsel, Kroger, and the Union filed briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. On the entire record and the briefs, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Kroger Company, a Texas corporation with a principal office in Houston, Texas, is engaged in the re- tail grocery business. During the calendar year relevant here it purchased and received at its Texas operations goods and materials valued in excess of $50,000, which were shipped directly from points located outside the State of Texas and received gross revenues in excess of $500,000. We find that the Kroger Company is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that United Food and Com- mercial Workers, Local 455, AFL–CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Facts The stipulated record reflects that at all material times the Union has been the exclusive collective-bargaining representative of the employees in the following unit: All employees employed by Houston Division of the Texas Marketing Area of Kroger Food Stores in stores operating in the counties of Austin, Brazoria, Brazos, Chamber, Fort Bend, Galveston, Grimes, Harris, Jef- ferson, Liberty, Madison, Matagorda, Montgomery, Orange, Polk, San Jacinto, Walker, Waller, Washing- ton, Wharton, and Store #990 operated by the Dallas Marketing Area of the Kroger Co., excluding all per- sons employed in the meat departments, store manag- ers, co-managers, management trainees, professional employees, product demonstrators, guards and supervi- sors as defined in the L.M.R.A., as amended. The parties’ collective-bargaining agreement contained a dues-checkoff provision1 which required Kroger to deduct and remit dues and service fees monthly to the Union pursuant to a lawfully executed authorization signed by the employee.2 On June 14, 1996, Allan Partain, an employee at Re- spondent Kroger’s Broadway, Pearland, Texas store, executed a checkoff authorization form, stating in rele- vant part, that: 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 1 Art. 3 of the parties’ collective-bargaining agreement, effective April 2, 1995, through April 1, 2000, provides: Section 3.01 During the life of this agreement, the Employer shall deduct initiation fees and regular dues weekly from employ- ees who individually and voluntarily certify in writing on the check-off authorization form for such deductions. Such authori- zation shall be binding on the employees for the duration of this agreement unless the authorization is revoked in accordance with the provisions of the Taft-Hartley Act of 1947, as amended. No deductions shall be discontinued until the employer has verified through the Union that the employee’s request for revocation is timely and proper. The Union shall certify in writing a list of its new members, together with signed authorization cards with an itemized list of such initiation fees and dues to be deducted from such members. The Employer shall promptly remit all such sums deducted in this manner to the Union monthly. Timing for such deductions may be worked out locally between the Employer and the Union. 2 The collective-bargaining agreement does not contain a union- security clause. 334 NLRB No. 113 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 848 of Local 455 of the United Food and Commercial Workers International 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 be- tween the Employer and Local 455, whichever oc- curs 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 subse- quent yearly period I give the Employer and the Un- ion written notice of revocation bearing my signa- ture thereto. The Secretary-Treasurer of Local 455 is author- ized to deposit this authorization with any Employer under contract with Local 455 and is further author- ized to transfer this authorization to any other Em- ployer under contract with Local 455 in the event that I should change employment. On or about November 1, 1997, Partain terminated his employment with Kroger, telling Store Manager Dan Grasby that he needed to leave his job to serve a 6-month jail sentence. Grasby told Partain that he would be re- hired on his release from jail. On April 8, 1998, Partain began work as a new hire at Kroger’s Broadway, Pear- land, Texas store. He did not execute a new checkoff authorization form. Since the Union and Kroger utilized a compatible computer system, the Union sent Kroger on a weekly basis a computer diskette containing a list of names of its employees who the Union certified were to have dues deducted from their paychecks by Kroger. This practice had been ongoing for a number of years and was used when Partain returned to work on April 8, 1998. It is undisputed that Kroger neither saw nor verified the checkoff authorization cards, but relied solely on the Union’s representation contained on the computer disk- ette. Subsequent to April 8, 1998, the Union sent a com- puter diskette containing Partain’s name to Kroger, which deducted dues from Partain’s paycheck and remit- ted them to the Union. On December 10, 1998, Partain resigned from the Un- ion and requested that the Union cease causing dues to be deducted from his paycheck. By letter dated January 25, 1999, the Union informed Partain that his withdrawal from membership was accepted but his previously exe- cuted checkoff authorization card remained in effect and his request to revoke it was untimely and that the dues deduction would continue. B. The Parties’ Contentions The General Counsel contends that the Union unlaw- fully caused Kroger to deduct union dues after Partain severed his employment relationship with Kroger and returned to its employ as a new hire without executing a new dues-checkoff authorization. Relying on Industrial Towel & Uniform Service, 195 NLRB 121 (1972), enf. denied 473 F.2d 1258 (6th Cir. 1973); and Railway Clerks (Yellow Cab), 205 NLRB 890 (1973), enfd. 498 F.2d 1105 (5th Cir. 1974), the General Counsel argues that continuity of employment is a necessary condition for a dues deduction authorization and that if, as here, the employment relationship is severed, the dues-deduction authorization lapses with it. The General Counsel further contends that the language of the checkoff authorization card does not clearly and unmistakably authorize the dues deduction because Partain returned to the employ of the same employer and did not become employed by “any other employer.” The Union argues that there is no violation of the Act since on its face the dues-checkoff authorization signed by Partain indicates that it survives a change in employ- ment, including a break in service. The Union further argues that the cases relied on by the General Counsel are distinguishable because the dues-checkoff authoriza- tion in the instant case is significantly broader than those at issue in Industrial Towel and Yellow Cab. The Union further argues that the dues-checkoff authorization voluntarily signed by Partain is clear, unambiguous, and demonstrates his willingness to provide financial assis- tance to the Union wherever he works, until timely re- voked. Kroger states that it is neutral in this matter and takes no position on how the law should be interpreted. III. DISCUSSION The issue presented is whether the dues-checkoff au- thorization signed by Partain lawfully permitted the Un- ion to cause Kroger to deduct union dues after Partain severed his employment relationship with Kroger and subsequently returned to its employ as a new hire with- out executing a new dues authorization.3 3 In its answer to the complaint, the Union asserts as an affirmative defense that the complaint is time barred by Sec. 10(b) since the Charg- ing Party filed his charge on January 11, 1999, more than 6 months after his April 8, 1998, return to employment at Kroger. We find, how- ever, that each occurrence of the unlawful dues deduction at the Un- ion’s request constitutes a separate violation of the Act. As the General Counsel argued on brief, and consistent with applicable law, we find that the remedy is limited by Sec. 10(b) to the 6-month period prior to the filing of the charge. See Teamsters Local 667 (American Freight), KROGER CO. 849 The Board has long recognized that, apart from the re- quirement for periodic revocability set forth in Section 302(c)(4), disputes involving dues-checkoff provisions essentially involve contract interpretation rather than interpretation and application of the Act. Furr’s, Inc., 264 NLRB 554, 556 (1982). Thus, in Electrical Workers IBEW Local 2088 (Lockheed Space Operations), 302 NLRB 322 (1991), the Board held that there is no rea- sonable basis for precluding an employee from individu- ally 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 checkoff. 302 NLRB 322 at 328. The Board requires, however, that the employee’s agreement to such an arrangement be manifested in “clear and unmistakable language.” Id. It would be contrary to these principles to find, without regard to its specific terms, that a dues-checkoff authori- zation may never remain effective when an employee is rehired following severance of the employment relation- ship. In our view, the Board’s holdings that the specific dues-checkoff authorizations at issue in Yellow Cab and Industrial Towel, did not survive severance of employ- ment were necessarily based on the specific language of the authorizations signed by the employees. Those deci- sions, then, do not establish a per se rule that a checkoff authorization can never survive the severance of em- ployment. See Commercial Workers Local 540 (Pil- grim’s Pride), 334 NLRB 114 (2001). The issue re- mains, however, whether the dues-checkoff authorization signed by Partain is a clear and unmistakable waiver of his Section 7 rights. We find that it is not. The language of the dues checkoff executed by Partain authorizes its transfer “to any other Employer under con- tract with Local 455” in the event Partain changed em- ployment. Here, however, Partain severed his employ- ment with Kroger and was subsequently rehired by the same Employer. True, Partain’s employment relation- ship changed. But Partain did not gain employment with some “other” (a different) employer with a contract with the Union. The issue is fairly debatable, and in our deci- sion in Pilgrim’s Pride, supra, which involves the same authorization language, we acknowledge that the Union’s position with respect to the dues checkoff is arguably meritorious. Nevertheless, we find here that the lan- guage does not constitute a clear and unmistakable waiver by Partain to have his dues deduction revived when he was reemployed by Kroger. Such a waiver would have required language that specifically addressed the situation implicated here: reemployment by the same 302 NLRB 694 (1991); Farmingdale Iron Works, 249 NLRB 98 (1980), enfd. as modified 661 F.2d 910 (2d Cir. 1981). employer. (For example, the language might have re- cited, “This authorization will remain effective if my employment with the Employer is terminated and I am later re-employed by the Employer.”) In the absence of a waiver, the Union violated Section 8(b)(1)(A) and (2) of the Act by causing Kroger to with- hold dues from Partain’s wages after he returned to work as a new employee, and Kroger violated Section 8(a)(1), (2), and (3) of the Act by withholding and remitting dues to the Union. Railway Clerks (Yellow Cab), 205 NLRB 890 (1973), enfd. 498 F.2d 1105 (5th Cir. 1974). Our conclusion here is contrary to the arbitrator’s award in Pilgrim’s Pride, but as we explain, deferral to the award is not required.4 In Pilgrim’s Pride, the Board considered whether the union violated Section 8(b)(1)(A) of the Act by filing a grievance and lawsuit to compel arbitration of a grievance claiming that the employer had violated the contract by ceasing dues checkoff for certain rehired employees who had executed checkoff authoriza- tions during a prior period of employment. The language of the checkoff authorizations at issue in Pilgrim’s Pride is identical to the checkoff authorization in the instant case and the arbitrator’s award found on facts identical to those present here that the employer had violated the collective-bargaining agreement “by refusing to withhold Union dues from those employees who had signed Checkoff Authorizations, and which authorizations had not yet expired under their terms, and were still in exis- tence at the time of rehire.” The union sought and ob- tained court enforcement of the award. See Commercial Workers Local 540 v. Pilgrim’s Pride Corp., 193 F.3d 328 (5th Cir. 1999). However an arbitrator’s decision has preclusive effect only to the extent set forth in the Board’s deferral to arbi- tration policy. And the Board does not defer where a party to the unfair labor practice proceedings was not a party to the arbitration proceedings. See Masters, Mates & Pilots (Seatrain Lines), 220 NLRB 164, 168 (1975); Retail Clerks, Local 1100 (White Front San Francisco), 203 NLRB 548, 549 fn. 2 (1973). Although this case involves an arbitrator’s interpretation of identical check- off authorization language, it does not involve the same parties to the arbitration proceeding. 4 The Union did not raise deferral as a defense in either its answer to the complaint or in its brief. Deferral is an affirmative defense that is waived if not timely raised. In its brief to the Board, however, the General Counsel specifically noted that the precise issue presented in the instant case, namely whether a dues-checkoff authorization survives severance of the employment relationship was also presented in Pil- grim’s Pride, a case already pending before the Board. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 850 ORDER The National Labor Relations Board orders that A. The Respondent, the Kroger Company, Pearland, Texas, its officers, agents, successors and assigns shall 1. Cease and desist from (a) Assisting the Union, United Food and Commercial Workers, Local 455, AFL–CIO, by checking off mem- bership dues not sanctioned by employees through cur- rently executed checkoff authorizations. (b) Continuing to deduct union membership dues pur- suant to checkoff authorizations, which are no longer valid or discriminating against employees in any other manner to encourage membership in the Union. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Jointly and severally with the Respondent Union reimburse Allan Partain for all sums improperly de- ducted from his wages in payment of union dues, begin- ning July 11, 1998, with interest. (b) Within 14 days after service by the Region, post at its facility in Pearland, Texas, copies of the attached no- tice marked “Appendix A.”5 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by its authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since July 11, 1998. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” B. The Respondent, United Food and Commercial Workers, Local 455, AFL–CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Causing or attempting to cause the Kroger Com- pany to deduct union dues from the wages of employees pursuant to checkoff authorizations which are no longer valid because of a break in an employee’s employment. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Jointly and severally with the Respondent Kroger reimburse Allan Partain for all sums improperly de- ducted from his wages in payment of union dues, begin- ning July 11, 1998, with interest. (b) Within 14 days after service by the Region, post at their offices copies of the attached notice marked “Ap- pendix B.”6 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 con- secutive days in conspicuous places, including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Mail a copy of the notice to the Charging Party. (d) Forward to the Regional Director for Region 16 signed copies of the notice sufficient in number for the Respondent Kroger, if willing, to post at its facility, where notices to employees are customarily posted. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent Union has taken to comply. APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. 6 See fn. 5, supra. KROGER CO. 851 Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT assist the Union by checking off membership dues not sanctioned by employees through currently executed checkoff authorizations. WE WILL NOT continue to deduct union membership dues pursuant to checkoff authorizations which are no longer valid and WE WILL NOT discriminate against employees in any other manner to encourage member- ship in the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL jointly and severally with the Union reim- burse Allan Partain for all sums improperly deducted from his wages in payment of his union dues, with inter- est. THE KROGER COMPANY APPENDIX B NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT cause or attempt to cause the Kroger Company to deduct union dues from the wages of em- ployees pursuant to checkoff authorizations which are no longer valid. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL jointly and severally with the Respondent Kroger reimburse Allan Partain for all sums improperly deducted from his wages in payment of union dues with interest. UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 455, AFL–CIO