UFCW Local 4 (Safeway, Inc.)

National Labor Relations Board - Unpublished Board Decisions

Jan 21, 2009

19-CB-009660 (N.L.R.B. Jan. 21, 2009)

NOT TO BE INCLUDED SL
IN BOUND VOLUMES WHITEFISH, MT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
UNITED FOOD AND COMMERCIAL WORKERS
UNION, LOCAL 4, affiliated with UNITED FOOD
AND COMMERCIAL WORKERS UNION
(Safeway, Inc.)
and Case 19-CB-9660
PAMELA BARRETT
ORDERS DENYING THE RESPONDENT'S MOTION FOR RECONSIDERATION AND
GRANTING, IN PART, THE GENERAL COUNSEL'S MOTION TO MODIFY THE
BOARD'S ORDER'
2On October 31, 2008, the Board issued a Decision and Order in this proceeding.
As relevant here, the Board reversed the judge's decision and found that the
3Respondent failed to provide the Charging Party, a Beck objector, with sufficiently
verified expenditure information, consistent with Television Artists AFTRA (KGW Radio),
327 NLRB 474 (1999), reconsideration denied 327 NLRB 802 (1999), petition for review
I Effective midnight December 28, 2007, Members Liebman, Schaumber,
Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a
three-member group, all of the Board's powers in anticipation of the expiration of the
terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this
delegation, Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue decisions and
orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. 353
NLRB No. 47 (2008).
2 353 NLRB No. 47 (2008).
3 Communications Workers of America v. Beck, 487 U.S. 735 (1988) (Supreme
Court limited the dues and fees a union can collect from objecting nonmember
employees under a contractual union-security clause to amounts expended on activities
germane to the union's role as collective-bargaining representative).
dismissed 1999 WL 325508 (D.C. Cir. 1999). Accordingly, the Board found that the
Respondent violated its duty of fair representation and thus Section 8(b)(1)(A). In doing
so, the Board declined the Respondent's request that the Board modify its chargeable
expense reporting requirements to be consistent with the Department of Labor (DOL)
reporting requirements set forth in the DOL Form LM-2.
On November 24, 2008, the Respondent filed a motion for reconsideration.
Thereafter, the General Counsel filed an opposition to the Respondent's motion. The
General Counsel also filed a motion to modify the Board's order with respect to the
remedial notice. We discuss each of the motions, in turn, below.
The Respondent argues that: (1) the two-member Board lacked authority to
decide this case in the absence of a quorum; (2) the Board ignored the fact that the
Charging Party asserted on May 11, 2007 that the Respondent's stated chargeable
expenses were "too high" and thus her recourse was to challenge the amount in the
union's internal procedure, not request additional information from the Respondent; (3)
the expenditure information "review" conducted by the Respondent's accountant
satisfied the Respondent's duty to provide sufficiently verified information to the
Charging Party; (4) the Respondent's DOL Form LM-2 provides appropriately verified
expenditure information, rendering the information verification required by KGW Radio
inapplicable; and (5) the Board's reporting requirements set forth in KGW Radio are no
longer necessary given the DOL's updated reporting requirements for the Form LM-2.
Having duly considered these matters, the Board finds that the Respondent's
motion does not present the extraordinary circumstances necessary under Section
2
102.48(d)(1) of the Board's Rules and Regulations to warrant reconsideration of the
4Board's decision. Accordingly, we deny the motion as lacking merit.
Regarding the General Counsel's motion to modify the Board's remedial notice,
we shall (1) amend the caption of the remedial notice so that it is addressed to
"Members and Employees," and (2) provide for the posting of the notice in the
Employer's workplace in Whitefish, Montana, if the Employer is willing.,5 We shall
amend our previous Order accordingly.
IT IS ORDERED that the Respondent's motion for reconsideration is denied. IT
IS FURTHER ORDERED that the General Counsel's motion to modify the Board's
Order is granted, in part.
4 The Board addressed the authority of the 2-member Board to issue decisions in
footnote 1 of its October 31, 2008 Decision and Order.
Also in that Decision, the Board considered and rejected the Respondent's
further arguments in favor of reconsideration. The Board found that after receiving the
expenditure information from the Respondent on May 11, Charging Party Barrett
asserted that she "was not provided with any information that explains or justifies the
calculation of this high agency fee." At this point, the Respondent had not provided
Barrett with sufficiently verified expenditure information,'as required by KGIN Radio.
Thus, as the Board ordered, her recourse was to have the Respondent provide her with
such verified information and not, as the Respondent asserts here, to proceed to
internal union procedures in order to "resolve her claim or forebear any challenge to that
claim."
Further, contrary to the Respondent's claim, the accountant's review of its
expenditure information did not satisfy the reporting requirements set forth in KGW
Radio. As the Board found, the accountant's review was not sufficient because the
accountant relied only on the representations of Respondent's management, and he did
not independently verify that the expenses claimed were in fact made.
Moreover, the Board considered and declined the Respondent's request to
modify the chargeable expense reporting requirements set forth in KGW Radio to be
consistent with the DOL's LM-2 reporting requirements.
5 See American Postal Workers Union, Local 735 (United States Postal Service),
342 NLRB 545 (2004). The remaining requests for modification are denied.
3
AMENDED ORDER
The National Labor Relations Board affirms its previous Order as modified below
and orders that the Respondent, United Food and Commercial Workers Union Local-4,
affiliated with United Food and Commercial Workers Union, Butte, Montana, its officers,
agents, and representatives, shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(c).
"Sign and return to the Regional Director for Region 19 sufficient copies of the
notice for posting by Safeway, if willing, at all places at its Whitefish, Montana store
where notices to employees are customarily posted."
2. Reletter existing paragraph 2(c) as paragraph 2(d).
Dated, Washington, D.C., January 21, 2009.
Peter C. Schaumber, Chairman
Wilma B. Liebman, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
4
APPENDIX
NOTICE TO MEMBERS AND 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 violated Federal labor law and
has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT provide to nonmember objectors expenditure information that is neither
sufficiently verified nor supported by a local presumption.
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 provide Pamela Barrett with information concerning our expenditures (or, in
the event that we rely on a local presumption, expenditures by our parent union) that
has been verified by an independent auditor.
UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 4, AFFILIATED WITH
UNITED FOOD AND COMMERCIAL WORKERS UNION
5