Food & Commercial Workers Local 554 (Shop 'N Save)

FOOD & COMMERCIAL WORKERS LOCAL 534 (SHOP 'N SAVE) 169 United Food and Commercial Workers Meatcutters Local 534, Chartered by United Food and Com- mercial Workers International Union, AFL- CIO, CLC (Shop 'N Save Warehouse Foods, Inc.) and Dennie R. Suchman. Case 14-CB- 6688 May 23, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On May 18, 1988, Administrative Law Judge Richard L. Denison issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent Union filed an answering brief to the General Counsel's excep- tions. The National Labor Relations Board has delegat- ed 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, and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Michael T. Jamison, Esq, for the General Counsel. Barry J. Levine, Esq., of St Louis, Missouri, for the Re- spondent. Dennie R Suchman, representing himself DECISION STATEMENT OF THE CASE RICHARD L DENISON, Administrative Law Judge This case was heard on January 12, 1988, in St Louis, Missouri, based on an order consolidating cases, consoli- dated complaint and notice of hearing in Cases 14-CA- 19001 and 14-CB-6688, issued on November 2, 1987 al- leging violations of Section 8(a)(1) and (3) and Section 8(b)(2) of the Act, respectively. Pursuant to a settlement agreement in Case 14-CA-19001, approved by the Re- gional Director on January 7, 1988, on that date the Re- gional Director issued an order severing cases and order withdrawing complaint and notice of hearing in Case 14- CA-19001. Accordingly, the sole issue in this proceeding is whether or not the Respondent Union caused or at- tempted to cause the Employer to discriminate against Suchman in violation of Section 8(a)(3) of the Act, as proscribed by Section 8(b)(2) of the Act The Respondent's answer denies the allegations of unfair labor practices alleged in the complaint. On the entire record in the case, including consideration of the briefs and observation of the witnesses, I make the fol- lowing FINDINGS OF FACT I JURISDICTION Based on the allegations of paragraph 2 of the com- plaint, admitted in paragraph 3 of the Respondent's answer, I find that Shop 'N Save Warehouse Foods, Inc is now, and has been at all times material herein, an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II LABOR ORGANIZATION Based on the allegations in paragraph 3 of the com- plaint, admitted in paragraph 4 of the Respondent's answer, I find that the Respondent is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act III SUPERVISORS Based on the allegations of paragraph 4 A of the com- plaint, admitted in paragraph 4 of the Respondent's answer, and the stipulation of the parties, Joint Exhibit 1, I find that the following-named persons occupy the posi- tions set forth opposite their respective names, and are now, and have been at all times material herein, supervi- sors of the Employer within the meaning of Section 2(11) of the Act, and agents of the Employer within the meaning of Section 2(13) of the Act. Nancy Moss Vice President, Employee Relations Michael Heisler Store Manager Stanley Swiecicki Co-Manager IV. AGENTS OF THE RESPONDENT Based on the allegations of paragraph 4 B of the com- plaint, admitted in paragraph 5 of the Respondent's answer, I find that at all times material herein the follow- ing persons occupy the positions set forth opposite their respective names, and are now, and have been at all times material herein, agents of Respondent within the meaning of Section 2(13) of the Act Richard F Taylor, Sr President Fred L Raney Secretary-Treasurer Frank Scaturro Business Representative V THE ALLEGED UNFAIR LABOR PRACTICES The Respondent and the Employer, Shop 'N Save Warehouse Foods, Inc., have a collective-bargaining agreement, the term of which is July 27, 1986, to July 22, 1989. The contract recognizes the Respondent as the exclusive bargaining agent for all the Employer's nonsu- pervisory employees in the area of "East St Louis and immediate vicinity " Article II of that agreement is a union-security clause that provides that, after the 30-day period required by law, bargaining unit employees must become and remain dues-paying members in good stand- ing of the Union as a condition of continued employ- 294 NLRB No 15 170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment Accordingly, the Employer is thereby required, on notice from the Union, to discharge any bargaining unit employee who has failed to timely pay his or her dues. For over 30 years, the Respondent has uniformly maintained a policy of collecting dues on a quarterly basis In accordance with a written stipulation in evi- dence, it is established that the Respondent's dues are $63 per quarter, due on the first day of each calendar quarter If an employee-member has not paid his or her dues by the 15th day of the second month of a given quarter, the Union mails a delinquency notice advising that person that if the dues are not paid by the end of the second month of the quarter, membership will be sus- pended and job removal may ensue Furthermore, a de- linquent dues charge of $15 will be added on the first day of the second month of the quarter, and a reinstate- ment fee of $150 becomes due if the employee is sus- pended effective the first day of the third month. Finally, in the event the Union receives no response to the delin- quency notice, the Employer is advised to discharge the employee for failure to pay dues The parties further stipulated that Dennie Robert Suchman, the Charging Party, did not pay his $63 quarterly dues on April 1, 1987, missed meetings in January and April of that year, and received a delinquent letter from the Union dated May 15, 1987 Credited portions of Suchman's testimony revealed that he became employed by Shop 'N Save Warehouse Foods, Inc. on May 25, 1986, as a grocery clerk in the Company's Cahokia, Illinois, store. Shortly before June 1, 1987, he became a produce clerk at the same location. About 30 days after he began working, he became and thereafter remained a member of the Respondent Such- man testified that union dues are paid either at the hall in person, or by mail or leaving payment in the Union's secure drop box at the hall Payment may be in cash, or by check or money order. i He conceded that he was late in making his dues payment for the first quarter of 1987, but eventually paid plus a $15 late charge. He next "got behind" with respect to the second quarter dues payment due on April 1 of that year, and received by mail a quarterly dues statement reflecting that fact This statement also contained a separate notation showing that Suchman was also charged the Union's customary $1 missed meeting penalty for being absent from the Janu- ary 1987 union meeting Thus, the total amount due was shown to be $64. Suchman did not pay his dues, nor did he respond in any manner to this communication Fur- thermore, he admitted being careless in that he did not read the portion of the document which cautioned, "Avoid delinquent charges Dues payments are due the first day of the first month of the quarter Late dues, $15, will be added the first day of the second month. Rein- statement fee, $150, will be added upon suspension the first day of the third month " As Suchman put it, "I usu- ally dust saw the note at the top part there." Suchman's procrastination resulted in the issuance of the standard delinquent letter by the Respondent on May 15, 1987 In'addition to the $63 dues and the January i Payments found in the drop box when the office opens at 8 30 a in are credited as of the previous day missed meeting charge, this statement also separately billed Suchman $1 for missing the April 1987 union meeting, and a $15 dues late charge for not having paid his dues by May 1, making the total amount due $80 Suchman also ignored this notification, including the ad- monition at the bottom of the letter stating that if his dues were not paid on or before May 31, 1987, his union membership would be suspended, he would be removed from his job, and that his employer was being notified, which might result in the termination of his employment At approximately the same time that he received the delinquent letter, Suchman was approached at work by Store Manager Mike Heisler Heisler warned Suchman that the Union had contacted him, and if Suchman did not pay his dues by Monday, June 1, Suchman would no longer be able to work Suchman replied that he would take care of it On or about May 28, Respondent's representative, Frank Scaturro, called Co-Manager Stanley Swiecickt and told him that Suchman and employee Tony Cabilis were late with their dues, and if they failed to pay they should not be permitted to work the following week. Suchman admits that Scaturro's message was relayed to him by Swiecicki on May 28. Although the Respondent's office is not open on week- ends, the Union has a secure drop box for their members' convenience in making payments at times when the busi- ness office is closed Suchman was aware of this fact, as evidenced by his admission that he had previously used the drop box for this purpose Nevertheless, he chose to wait until Monday, June 1, before going to the hall to pay his dues in person. He arrived between 11 30 p.m and noon, where he encountered Sheila Knibb, the Union's secretary.' Suchman handed Knibb $80, the total of the separate charges listed as the amount due in the delinquent letter of May 15 As Knibb began writing a receipt for Suchman she stated, "Dennie, now, a rein- statement fee of $150 will be added to your next pay- ment because you are considered suspended as of this date " Knibb never had an opportunity to finish complet- ing the receipt, because Suchman became agitated and reached across the counter retrieving the money As he did so he stated, "I'm not paying this I'm not paying you any more I'm quitting I'm quitting as of today I'm going to the store right now and I'm quitting " Kmbb re- plied, "That is your prerogative," whereupon Suchman left the hall 3 When Business Agent Frank Scaturro re- 2 Kmbb, whose name is incorrectly spelled Knipp in other portions of the transcript, types correspondence, opens and distributes mail, processes memberships, collects dues, and performs bookkeeping functions 9 Suchman testified that he arrived at the union hall at 10 a in on June 1, and after his brief conversation with Kmbb proceeded to the store where he arrived about 10 30 or I I a in This portion of his testimony is not only inconsistent with that of Knibb, but also does not coincide with Swiecicki's uncontradicted statement that he arrived for work at the store that day at 3 p in , before Suchman's arrival Suchman's version of his conversation with Knibb is fragmentary and less detailed than hers, but generally coincides with what Knibb related He admitted tendering $80, which he then retrieved when he became upset after learning that he had been suspended and would be billed for a $150 reinstatement fee He also conceded stating , "I said I give up I quit," "expounded on my feel- ings" and left the hall Knibb exhibited an excellent memory and an abili- ty to precisely recount in detail what she recalled To the extent her testi- mony differs significantly from that of Suchman, I credit Knibb FOOD & COMMERCIAL WORKERS LOCAL 534 (SHOP 'N SAVE) turned from lunch and Knibb described her confronta- tion with Suchman , she requested that Scaturro call Shop 'N Save "to verify the situation " Thereafter, Knibb had no further involvement with the problem aris- ing from Suchman 's failure to pay his dues. Suchman arrived at the store shortly after 3 p m , where he talked with Heisler and Swiecicki Suchman's account of what transpired was fragmentary , conclusion- ary, and vague . According to Suchman, he "tried to ex- plain to them what happened at the union hall . " He said he had just come from there, had gone there to pay the $80 he owed , and was told that he had to pay a reinstatement fee of $150, which he did not have. Such- man claimed to have stated that he thought the Union would probably have called the store before his arrival to tell the management he was no longer eligible to work there Suchman said he "was hoping that they would be able to . . . help me in some way to call someone or something like that to explain to them that, you know, that . . . I wasn't quitting my job I wasn't leaving there on my own because I wanted to " Such- man further stated that during the conversation Heisler was called to the telephone , and when he returned said "that was them." Then the conversation continued but Suchman was unable to remember anything further that was said After a time Heisler was called away to the office again , and Suchman remained for a while talking to Swiecicki Again Suchman was unable to remember what was said Finally, Swiecicki returned to work, Suchman waited 5 or 10 minutes , and when no one re- turned to talk to him he left the store He claimed that no one ever told him he was fired or was off the work schedule, or made any statement that defined his work status In response to a leading question he insisted that he never told anyone he had quit Suchman had no fur- ther contact with store management for about 2 weeks, after which he went to the store to see if he had a vaca- tion check waiting for him It was at this time , he stated, that someone told him he would not receive a check be- cause he did not give the Company the required 10 days' notice that he was quitting . Suchman eventually returned to work at the store on September 1, 1987 Stanley Swiecicki testified as a witness for the General Counsel To the extent that his much more detailed and complete testimony differs from that of Suchman, Swie- cicki is credited . He testified that when Suchman arrived at the store after 3 p.m. on June 1, he walked up to Swiecicki and Heisler, described how he had been to the union hall, and stated that he was quitting because he couldn't pay his dues Swiecicki had no response, but Heisler said he was sorry that Suchman could not pay his dues and asked if there was anything Suchman could do to get the money together "because it puts us in a bind cause , you know, you are scheduled to work this week." Suchman answered there was no way he could get the money together , that he dust could not do it Suchman left the store, and Heisler called the Company's personnel office in St . Louis for approval to take Such- man off the work schedule However, Suchman was not removed from the schedule that day because St Louis approval was not received 171 The Respondent concedes that under current Board law it would be unlawful for the Union to seek Such- man's discharge for failure to pay the missed -meeting fees, or nonuniform fees or assessments , but insists that it did not violate the Act in seeking to enforce Suchman's obligation to pay his dues The General Counsel's argu- ment is two-fold Counsel for the General Counsel con- tends that the Union's dues are really monthly , and thus part of Respondent's threatened job removal of Suchman was an effort to collect dues in advance of Suchman's obligation to pay . It is also urged that the Union's con- duct was in part an effort to enforce the collection of the penalty charges assessed to Suchman for missing meet- ings and for late payment of dues I disagree on both counts. It is well settled that under the terms of a valid union-security provision in its collective -bargaining agreement with an employer , like the one that exists be- tween Respondent and Shop 'N Save, the Union may lawfully request the discharge of an employee for failure to pay or tender his periodic dues and initiation fees It is likewise well established that a union violates Section 8(b)(2) of the Act when it seeks to invoke the enforce- ment provisions of the union -security clause for reasons other than the employees ' failure to pay or tender those fees The circumstances of the instant case are clear and unambiguous . Suchman did not pay any of his union dues. He made no effort to contact or otherwise discuss the matter with the Union until after the suspension deadline At no time did anyone from the Union ever suggest, orally or in writing, that the enforcement provi- sion of the union-security agreements would be invoked against Suchman for any reason other than his failure to pay his dues A fair examination of the document dated May 15, 1987, clearly reveals that the document is divid- ed into two separate and distinct parts by a heavy double line. The top portion constitutes the delinquent letter showing a total amount due as of that date of $80, and an item by item breakdown of the amount that, in this instance, included two missed -meeting fines and a $15 dues late charge. Nowhere on this portion of the docu- ment is Suchman threatened with job removal for failure to pay the total amount due The only other statement in this part of the document is that "dues must be paid Jan- uary, April , July and October." The second portion of the document below the double separating line is headed "Statement " The statement portion of the document makes no reference whatsoever to fines, but simply shows that Suchman owed $63 in dues It is at the bottom of the dues statement that there appears the ad- visement that, Your quarterly dues are now past due If the above amount is not paid on or before May 31, 1987 your union membership will be suspended and you will be removed from your job Your employer is also being notified and if you are removed from your job, your employer may terminate your employment. I am persuaded and find that this admonition plainly ap- plies only to Suchman's dues The fact that Suchman did not even read the included statement , or for that matter 172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD behaved likewise with respect to the April 1 quarterly dues statement he previously received, is attributable to Suchman's negligence and is no fault of the Union. The relevant proscription contained in Section 8(b)(2) of the Act was clearly intended by Congress to protect em- ployees from a specific form of discrimination and was not designed to be a savings clause for the inattentive Moreover, although it may be technically immaterial to a discussion of the specific issue under consideration, the fact remains that the Union regularly and uniformly made available to employees who were delinquent in paying their dues and other charges, a liberal policy of accepting installment payments from employee members unable to pay any lump sum However, the irate Such- man never made any effort to enter into any such ar- rangement for solving his problem even though he knew such a solution was available. Finally, I turn to the argument that the Union's quar- terly dues collection system is a device that enables it to collect from employees money not yet owed Only by an obvious distortion of the facts can this conclusion be reached Under this reasoning, if carried to its ultimate absurdity, any union that collects its dues on the first of the month instead of the end of the month violates the Act by collecting money not yet "due." Only by stretch- ing the facts to reach the conclusion that the Respondent actually has a monthly dues system, not a quarterly system, can it be deemed, by any stretch of the imagina- tion, that the Union is collecting money for periods for which there is no obligation to pay. The precedents cited by counsel for General Counsel are not conclusive The record evidence does not support such an assumption Sheila Knibb, who performs the bookkeeping, and Busi- ness Representative-Secretary Treasurer of Local 534 Fred Raney, each credibly testified that the Respondent's dues have always been quarterly The fact that the cur- rent quarterly dues amount of $63 is evenly divisible by three simply enables the Union to prorate dues on a monthly basis in the event an employee either becomes a member or leaves his employment in the midst of a quar- ter, thereby avoiding collecting from the employee money for which the Union rendered no services This prorating of dues is evidenced on the Union's computer printout records enabling the auditors, who annually ex- amine the Union's books, to determine what part of a quarter for which the new or departing employee was obligated to pay. I find that the General Counsel has failed in his burden of proof I therefore find that the Re- spondent has not violated Section 8(b)(2) of the Act, as alleged in the complaint. CONCLUSIONS OF LAW 1 The Respondent is a labor organization within the meaning of Section 2(5) of the Act 2. The Employer, Shop 'N Save Warehouse Foods, Inc, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 3 The Respondent has not violated Section 8(b)(2) of the Act, as alleged in the complaint Upon these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER Respondent's motion to dismiss the complaint is grant- ed 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