UFCW Local 4 (Safeway, Inc.)

National Labor Relations Board - Unpublished Board Decisions

Oct 25, 2010

19-CB-009660 (N.L.R.B. Oct. 25, 2010)

NOT TO BE INCLUDED LBH
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
ORDER DENYING MOTION FOR RECONSIDERATION
On August 26, 2010, the National Labor Relations Board, by a three-
member panel, issued a Decision and Order in this proceeding,' affirming the
judge's rulings, findings, and conclusions and adopting the recommended Order
only to the extent and for the reasons stated in the Board's earlier decision
reported at 353 NLRB 469 (2008), as modified by a January 21, 2009
2unpublished Order. In its earlier decision, which was incorporated by reference
in the Board's August 26, 2010 decision, the Board reversed the judge's decision
and found that the Respondent failed to provide the Charging Party, a Beck
1 355 NLRB No. 133 (unpublished correction issued September 24, 2010).
2 The earlier decision was issued by the two sifting members of the Board.
Thereafter, on June 17, 2010, the United States Supreme Court issued its
decision in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, holding that under
Section 3(b) of the Act, in order to exercise the delegated authority of the Board,
a delegee group of at least three members must be maintained.
3objector, 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 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. In the August 26, 2010
decision, Member Becker, writing separately, stated his view that the Board
should consider, in an appropriate case, modifying its expenditure reporting
requirements. See Food & Commercial Workers Local 4 (Safeway, Inc.), supra,
355 NLRB No. 133, slip op. at 1 fn.3.
On September 9, 2010, the Respondent filed a motion for reconsideration.
In support of the motion, the Respondent contends that the Board should engage
in discussions with the Department of Lab or to ensure that the two agencies
have consistent financial reporting requirements for unions and that the Board's
August 26, 2010 Decision and Order should be rescinded pending such
discussions. In addition, relying on the Board's recent decision in Machinists
Local Lodge 2777 (L-3 Communications), 355 N LRB No. 174 (2010), the
Respondent contends that the issue in this case - the sufficiency of expenditure
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).
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information provided to Beck objectors - is governed by the duty of fair
representation standard, that the Respondent's actions in this case met that
standard, and the Board should reconsider its decision under that standard.
The National Labor Relations Board has delegated its authority in this
proceeding to a three-member panel.
Having duly considered this matter, we find that the Respondent's motion
does not present extraordinary circumstances necessary under Section
102.48(d)(1) of the Board's Rules and Regulations to warrant reconsideration of
the Board's decision. Accordingly, we deny the motion as raising no issue not
4previously considered by the Board and as lacking merit.
4 As stated above, the Board previously considered and declined the
Respondent's request that the Board modify its expenditure reporting
requirements for unions in this case. See Food & Commercial Workers Local 4
(Safeway, Inc.), supra, 355 NLRB No. 133, incorporating by reference 353 NLRB
at 471, fn.8 (2008).
In addition, contrary to the Respondent's claim, the Board applied the duty
of fair representation standard in deciding this case. The Board relied on
principles set forth in California Saw & Knife Works, 320 NLRB 224 (1995), enfd.
133 F.3d 1012 (7th Cir. 1998), cert. denied sub nom. Strang v. NLRB, 525 U.S.
813 (1998), and KGW Radio, supra, cases which apply the duty of fair
representation standard. Moreover, in finding that the Respondent failed to
provide the Charging Party with expenditure information that was sufficiently
verified under the standards set forth in KGW Radio, the Board specifically
concluded that the Respondent violated its duty of fair representation. See Food
& Commercial Workers Local 4 (Safeway, Inc.), supra, 355 NLRB No. 133,
incorporating by reference 353 NLRB at 471.
Member Hayes did not participate in the underlying decisions. He has
said elsewhere that he is "in sympathy with the view[] ... that the standard for
analysis in duty-of-fair representation cases should not apply when dealing with
Beck allegations as it is unjustifiably deferential." Machinists Local Lodge 2777
(L-3 Communications), 355 NLRB No. 174, slip. op. at 13 (2010). But he need
not reach those matters here because he agrees that the Respondent's motion
presents no circumstances that would warrant reconsideration under Section
102.48(d)(1) of the Board's Rules and Regulations. He therefore joins his
colleagues in denying the motion.
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IT IS ORDERED that the Respondent's motion for reconsideration is
denied.
Dated, Washington, D.C. , October 25, 2010.
Wilma B. Liebman, Chairman
Craig Becker, Member
Brian E. Hayes, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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