Albertson's/Max Food Warehouse

National Labor Relations Board - Board Decisions

Sep 30, 1999

329 N.L.R.B. 410 (N.L.R.B. 1999)

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.”)