C&G DISTRIBUTING COMPANY, INC

C & G DISTRIBUTING CO. 543 359 NLRB No. 53 C & G Distributing Company, Inc. and General Truck Drivers, Warehousemen, Helpers, Sales and Service and Casino Employees, Teamsters Local Union No. 957, affiliated with the Interna- tional Brotherhood of Teamsters. Case 09–CA– 078875 January 24, 2013 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND BLOCK On October 17, 2012, Administrative Law Judge Jef- frey D. Wedekind issued the attached decision. The Act- ing General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief.1 The Acting General Counsel and the Charging Party each filed reply briefs. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings, and conclusions, and to adopt the recommended Order. Reasoning that he was bound by the rule of Bethlehem Steel Co., 136 NLRB 1500, 1502 (1962), affd. in relevant part sub nom. Shipbuilders v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert. denied 375 U.S. 984 (1964), the judge found that the Respondent did not violate Section 8(a)(5) and (1) of the Act by ceasing to honor employees’ dues- checkoff authorizations after the expiration of the parties’ collective-bargaining agreement. 1 In its answering brief, the Respondent requests that the Board strike the Acting General Counsel’s brief in support of exceptions for noncompliance with Sec. 102.46(j) of the Board’s Rules and Regula- tions. The Respondent argues that the Board should strike the brief because it exceeded 20 pages but did not contain a subject index with page references and an alphabetical table of cases and other authorities cited. Although the Acting General Counsel’s brief does not conform in all particulars with Sec. 102.46, it is not so deficient as to warrant striking. Accordingly, we deny the Respondent’s request to strike the Acting General Counsel’s brief. The Respondent also argues in its answering brief that the complaint is ultra vires and that the Board lacks a quorum to decide the case. The Respondent did not properly raise those defenses on exception. In any event, for the reasons stated in Center for Social Change, 358 NLRB 161 (2012), we find that those arguments lack merit. Subsequent to the issuance of the judge’s decision, in WKYC-TV, 359 NLRB 286 (2012), we overruled Bethle- hem Steel and its progeny “to the extent they stand for the proposition that dues checkoff does not survive con- tract expiration.” 359 NLRB 286, 293. We held in WKYC-TV that “an employer, following contract expira- tion, must continue to honor a dues-checkoff arrange- ment established in that contract until the parties have either reached agreement or a valid impasse permits uni- lateral action by the employer.” Id. We also decided, however, to apply the new rule prospectively only. Id., slip op. at 9. Thus, as in WKYC-TV, we shall apply Beth- lehem Steel in the present case. Accordingly, we adopt the judge’s finding that, because the Respondent was privileged under Bethlehem Steel to cease honoring the dues-checkoff arrangement after the expiration of the parties’ collective-bargaining agreement, the Respondent did not violate the Act as alleged. We shall dismiss the complaint. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dismissed. Jamie L. Ireland, Esq., for the General Counsel. Ron L. Mason, Esq. and Aaron T. Tulencik, Esq., for the Re- spondent Company. John R. Doll, Esq., for the Charging Party Union. DECISION STATEMENT OF THE CASE JEFFREY D. WEDEKIND, Administrative Law Judge. This is another in a recent series of cases where the General Counsel is challenging current Board law regarding an employer’s right to unilaterally cease dues-checkoff postcontract.1 As in the other cases, the complaint in this case alleges that the employer (here C & G Distributing Company) violated Section 8(a)(5) and (1) of the Act by doing so.2 A hearing on the complaint was originally scheduled in Au- gust 2012. However, on August 24, the parties filed a joint motion requesting that I issue a decision based solely on a stip- ulated record. Consistent with Section 102.35(a)(9) of the Board’s Rules, the motion included the parties’ stipulation of facts with attached exhibits, a statement of the issues, and short 1 See, e.g., WKYC, Inc., 08–CA–039190, JD–60–11 (2011 WL 4543697); Nebraskaland, Inc., 02–CA–039996, JD(NY)–46–11 (2011 WL 6002194); USIC Locating Services, Inc., 06–CA–037328, JD–03– 12 (2012 WL 76860); WHDH-TV, 01–CA–046744, JD(NY)–10–12 (2012 WL 1229612); and Healthbridge Mgmt., LLC, 34–CA–012964, JD(NY)–21–12 (2012 WL 2992088). 2 The Union filed the underlying charge on April 16, 2012, and the General Counsel issued the complaint on June 29, 2012. Jurisdiction is admitted and well established. Although the Company challenges the authority of the Acting General Counsel and current Board to prosecute and adjudicate the complaint, respectively, similar challenges have been rejected in other cases. See, e.g., Center for Social Change, Inc., 358 NLRB 161 (2012). 544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD statements of position by the General Counsel and the Compa- ny. By order dated August 27, I granted the joint motion and ap- proved the stipulation of facts. Thereafter, on October 5, the General Counsel and the Company filed briefs. FINDINGS OF FACT The Company sells and distributes beer and other beverages from a facility in Versailles, Ohio. Since at least March 15, 2008, Teamsters Local 957 has been the designated exclusive bargaining representative for the Company’s drivers and ware- housepersons at the facility pursuant to 9(a) of the Act. The parties’ most recent collective-bargaining agreement was effective from March 15, 2008, until March 15, 2012. The contract (Exh. G) contained both a union-security clause and a dues-checkoff provision. The union-security clause (art. 3) required all unit employees to become and remain union mem- bers or pay periodic dues and initiation fees to the Union after 90 days had passed from the date of the agreement or the date of hire, whichever is later. The dues-checkoff provision (art. 4) required the Company to deduct the dues and fees on a monthly basis from employees who had furnished signed authorizations, and to remit them to the Union. Pursuant to the contractual dues-checkoff provision and the employees’ signed authorizations (Exh. J), the Company regu- larly deducted dues from unit employees’ pay and remitted the dues to the Union during the term of the agreement. And it did so again in March 2012, the last month of the agreement. Spe- cifically, the Company deducted and remitted the dues on about March 2 and 16, respectively, and the Union received the dues on about March 19. Since April 1, 2012, however, and continuing to date, the Company has neither deducted dues from unit employees’ pay nor remitted dues to the Union. The Company’s attorney first notified the Union of this by email dated April 11. The email stated “be advised that my client will no longer deduct union dues until there is a valid contract that authorizes such deduc- tions.” (Exh. I.) In the meantime, on March 6, pursuant to timely notice pre- viously served by the Union in early December 2011 (Exh. H), the parties met to begin negotiations over a new contract. Since the Company’s April 11 email, both sides have made proposals during the negotiations with respect to including language in the new contract regarding deducting and remitting union dues. However, the Union did not request bargaining over the Com- pany’s April 11 notice that the Company would cease deduct- ing and remitting dues until a new contract was reached. Analysis The General Counsel argues that, as a matter of policy, em- ployers should be required to continue dues checkoff after con- tract expiration to the same extent they are required to maintain wages, benefits, and other mandatory terms and conditions of employment until a new agreement or good-faith impasse. As the General Counsel concedes, however, this argument is con- trary to longstanding Board precedent, specifically Bethlehem Steel Co., 136 NLRB 1500 (1962), and its progeny. Although the General Counsel offers various reasons why the precedent is unsound, the Board’s most recent decision addressing the subject, on second remand from the Ninth Circuit, effectively reaffirmed the precedent in the absence of a three-member ma- jority to overrule it. See Hacienda Resort Hotel & Casino (Hacienda III), 355 NLRB 742 (2010). Like Hacienda I and II, Hacienda III was reviewed by the Ninth Circuit at the request of the union. And this time, instead of remanding the case yet again for a rational explanation of the precedent, the court rejected the precedent outright. However, the court did so only as applied to dues-checkoff provisions that “exist as a free-standing, independent convenience to willingly participating employees.” Local Joint Executive Board of Las Vegas, Culinary Workers Local 226 v. NLRB, 657 F.3d 865, 875 (2011). The court expressed no opinion with respect to situations, such as that here, where the expired contract also contained a union-security clause that compelled employees to join or pay dues to the union as a condition of employment. In any event, I am bound to follow Board precedent. Path- mark Stores, Inc., 342 NLRB 378 fn. 1 (2004). And, as indi- cated by the Company, the Board has to date declined to revisit the issue. See Hargrove Electric Co., 358 NLRB 1395, 1395 fn. 1 (2012). Accordingly, I find that the Company’s unilateral cessation of dues checkoff in April 2012 did not violate the Act.3 CONCLUSION OF LAW The Company’s unilateral cessation of dues checkoff in April 2012, following termination of the parties’ collective- bargaining agreement on March 15, 2012, did not violate Sec- tion 8(a)(5) and (1) of the Act. Accordingly, based on the foregoing findings of fact and conclusions of law and the entire stipulated record, I issue the following recommended4 ORDER The complaint is dismissed. 3 Given this finding, it is unnecessary to address the Company’s af- firmative defenses. 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.