United Food Management Services, Inc., Alabama

National Labor Relations Board - Board Decisions

Jan 24, 1985

273 N.L.R.B. 1611 (N.L.R.B. 1985)

UNITED FOOD SERVICES 1611
United Food Management Services, Inc., Alabama
and Hotel Employees & Restaurant Employees
International Union, AFL-CIO, CLC, Local
719. Case 10-CA-19939
24 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 12 September 1984 Administrative Law
Judge Howard I. Grossman issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The complaint alleges that the Respondent vio-
lated Section 8(a)(5) and (1) by refusing to honor
union-security provisions of a collective-bargaining
agreement it has with the Charging Party. More
particularly, the complaint alleges that the Re-
spondent violated Section 8(a)(5) and (1) by deny-
ing the Union's request that it inform bargaining
unit employees they are required to join the Union
or be subject to termination pursuant to the union-
security clause provisions.
At the hearing, the Respondent denied it had
violated Section 8(a)(5) and (1) as alleged, and
argued that the dispute herein is cognizable under
the grievance-arbitration provisions of the parties'
collective-bargaining agreement to which the
Board should defer. The judge refused to defer this
dispute to the parties' grievance procedure and
found that the Respondent violated Section 8(a)(5)
and (1) of the Act. In refusing to defer, the judge
noted that the Respondent had "ignored" a griev-
ance accusing it of having violated those provisions
of its contract which pertain to union membership
and that the Union had not pursued the alleged
contract violation to arbitration. The judge found
that the record herein does not "demonstrate - full
acceptance by the parties of the grievance and arbi-
tration route to the resolution of disputes." United
Technologies Corp., 268 NLRB 557 at 560 fn. 21
(1984). We disagree. Accordingly, we do not adopt
the judge's recommendations.
The parties' current collective-bargaining agree-
ment is effective from December 1982 until De-
cember 1985. On 17 February 1983 the local union
presented the Respondent with a statement alleging
that it was violating the parties' contract by failing
to notify employees of the requirement that they
become members of the Union after 45 days).
Thereafter, a representative of the International
Union repeated the Union's claim of a contractual
violation to the Respondent's manager of labor re-
lations. By letter dated 15 April 1983, the Respond-
ent denied the Union's claim and asserted that it
was not obligated under the contract to enforce or
inform employees of union requirements. 2 The
Union did not pursue arbitration of the dispute,
electing instead to file the charge herein.
The facts of the instant case make it well suited
for deferral. The dispute involves whether the Re-
spondent has a contractual duty under article 13 of
its collective-bargaining agreement with the Union
to inform employees they will be subject to dis-
charge for failure to join the Union 45 days after
hire. The Respondent's refusal so to inform its em-
ployees is alleged to be violative of Section 8(a)(5)
and (1). The issue appears to be one of contract in-
terpretation as there apparently is no express provi-
sion requiring notification. Further, the Respondent
has expressed its willingness to arbitrate the dis-
pute. The Union by initiating its grievance action
clearly viewed the dispute as being cognizable
under the contract's grievance-arbitration proce-
dure; 3 the fact that it later elected not to process
its grievance to arbitration does not affect our deci-
sion to defer. United Technologies, supra. Contrary
to the judge we find the record demonstrates that
the parties have accepted and utilized their griev-
ance-arbitration procedure for the resolution of dis-
putes. Thus, the record reveals that the parties dis-
cussed the issue herein in December 1983 while
participating in the arbitration of another griev-
ance. Moreover, there is no record evidence to
suggest that the use of the contractual grievance
1 The dispute herein centers on art. 13 of the current collective-bar-
gaining agreement which is, verbatim, as follows:
All employees currently in the bargaining unit and all new em-
ployees shall become members of the Union after forty-five (45) days
following last date of hire; and shall maintain their membership in
the Union in good standing for the duration of this Agreement as a
condition of employment.
The provisions of this Article shall be effective with respect to the
employees as defined in Article I, providing such provisions are in
accordance with and consistent with appropriate Federal and State
Laws.
The Union agrees to accept all employees as members.
The Union has not requested the discharge of any employee, rather it has
only requested that the Respondent notify the employees that they must,
as a condition of employment, become members of the Union within 45
days of employment.
2 The Respondent's position throughout has been that art. 13 is subject
to the Alabama nght-to-work statute.
3 The record does not contain a complete copy of the parties' collec-
tive-bargaining agreement or the portion of that agreement setting forth
the terms of the grievance-arbitration provisions. However, the record
clearly demonstrates that such provisions exist and were invoked by the
Union in this matter. Accordingly, in view of the circumstances here, it is
unnecessary to rely on the actual language of that provision, and the Re-
spondent's motion to reopen the record for the limited purpose of receiv-
ing the entire collective-bargaining agreement is denied.
273 NLRB No. 201
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
procedure to resolve the dispute herein would be
"unpromising or futile." United Aircraft Corp., 204
NLRB 879 (1973).
We also find that the issue whether the Respond-
ent could tell its employees they would not be ter-
minated if they refused to join the Union is also
amenable to resolution through use of the griev-
ance procedure. This matter, although not alleged
as unlawful in the complaint, was found by the
judge to have been fully litigated and to have been
an 8(a)(1) violation. The employees' obligation to
join the Union as a condition of employment is a
matter of interpretation of article 13 of the bargain-
ing agreement, and its resolution will determine
whether the Respondent's statements to employees
was contrary to the contractual provisions. This
matter is the proper subject for the grievance-arbi-
tration procedure.
In view of the foregoing, we believe it would
best effectuate the purposes and policies of the Act
to defer this case to the arbitral forum. According-
ly, we conclude that the issues raised by the com-
plaint should be deferred to the grievance-arbitra-
tion provisions of the parties' collective-bargaining
agreement, and we shall so order.4
ORDER
The complaint is dismissed, provided that
Jurisdiction of this proceeding is retained for the
limited purpose of entertaining an appropriate and
timely motion for further consideration on a proper
showing that either (a) the dispute has not, with
reasonable promptness after the issuance of this
Decision and Order, either been resolved by amica-
ble settlement in the grievance procedure or sub-
mitted promptly to arbitration, or (b) the grievance
or arbitration procedures have not been fair and
regular or have reached a result which is repug-
nant to the Act.
4 The Respondent must, of course, waive any timeliness provisions of
the grievance-arbitration clauses of the collective-bargaining agreement
so that the Union's grievance may be processed in accordance with the
following Order
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge.
The charge was filed on January 24, 1984, by Hotel Em-
ployees & Restaurant Employees International Union,
AFL-CIO, CLC, Local 719 (the Union), and complaint
issued on March 1, 1984. As later amended, the com-
plaint alleges that the Union and United Food Manage-
ment Services, Inc., Alabama (Respondent), 1 are parties
' Respondent's name appears as amended at the hearing
to a collective-bargaining agreement containing a union-
security clause, which required union membership as a
condition of employment after 45 days following the last
date of hire. Further, the complaint alleges that the
Union notified seven named employees 2 that they had to
join the Union or be subject to discharge, pursuant to the
collective-bargaining agreement, but all seven employees
refused to join. Thereafter, the complaint further alleges
the Union asked Respondent to abide by the collective-
bargaining agreement by informing said employees that
they had to join the Union or be subject to termination,
and that Respondent refused to do so According to the
complaint, this constituted a refusal to continue in full
force and effect the terms of the collective-bargaining
agreement, and thereby violated Section 8(a)(5) and (1)
of the National Labor Relations Act (the Act).
A hearing on this matter was held before me in Hunts-
ville, Alabama, on April 6, 1984 On the entire record,
including a brief filed by Respondent and a memoran-
dum to supplement oral argument filed by the General
Counsel, and on my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The pleadings, as amended at the hearing, establish
that Respondent is an Alabama corporation with an
office and place of business located at Huntsville, Ala-
bama, where it is engaged in providing food service.3
Respondent received gross revenues in excess of
$500,000 during 1983, and purchased and received goods
valued in excess of $50,000 from suppliers who in turn
purchased and received same from suppliers located out-
side the State of Alabama Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
Marshall Race, a representative of the International
Union, testified that it is affiliated with various locals to
whom it gives consultation and advice. The name of the
International was recently changed from the former
name, Hotel and Restaurant Employees and Bartenders
International Union, and the name of Local 719 was
similarly changed It is evident from the record that the
Union has entered into a collective-bargaining agreement
with Respondent whereby it represents certain of the lat-
ter's employees, and that it has engaged in other activi-
ties on behalf of said employees. I find that the Union is
a labor organization within the meaning of Section 2(5)
of the Act.
2 Edith Marie Word, Linda Guess, Judy Williams, Daniel McAnally,
Patricia Ennis, Sharon Hale, and Wilburn Duskm
3 The pleadings and a current collective-bargaining agreement establish
that Respondent's facility is located in Huntsville, Alabama, at the
George C Marshall Space Flight Center, NASA (National Aeronautics
and Space Administration) G C Exhs 3, 1(c) par 6, 1(e) par 7 I take
Judicial notice of the fact that the Center is owned and controlled by the
Federal Government
UNITED FOOD SERVICES 1613
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
The Union had a collective-bargaining agreement with
Respondent's predecessor at the Space Center, ARA
Services. The agreement expired in December 1982. Re-
spondent's district manager George A. Carlye4 stated
that Respondent "assumed" the predecessor's contract in
1979. This was corroborated by Union Representative
Race. Article XIII of this agreement, entitled "Union
Shop," reads as follows:
All employees currently in the bargaining unit and
all new employees shall become members of the
Union after forty-five (45) days following last date
of hire; and shall maintain their membership in the
Union in good standing for the duration of this
Agreement as a condition of employment.
The provisions of this Article shall be effective
with respect to the employees as defined in Article
I, 8 providing such provisions are in accordance
with and consistent with appropriate Federal and
State Laws.
The Union agrees to accept all employees as
members [G.C. Exh. 3].
Race credibly testified that the predecessor, ARA,
agreed to inform employees that it was necessary for
them to join the Union after the probationary period. I
infer that it did so.
B. The Bargaining for a New Agreement
Union Representative Race stated that article XIII of
the old agreement was simply renewed in the new con-
tract.
Company Counsel McCauley testified that there were
three bargaining sessions. At the first session, on Novem-
ber 16, 1982, Respondent proposed to delete article XIII.
The Company thought that the Union should go out and
persuade employees to join the Union. Further, there
was "no need for that Article. . . considering the Ala-
bama State right-to-work law." Race's response was that
article XIII required every employee to be a member of
the Union.
A few days later, on November 21, McCauley wrote a
letter to Race, with two attachments purporting to repre-
sent the positions of the parties at the first session. Re-
spondent's proposed changes included a proposal to
"delete or rewrite to eliminate the confusion and conflict
between paragraphs one and two" of article XIII, the
union shop provision. The handwritten letters "O.C".
4 The parties stipulated that Carlye was a supervisor within the mean-
ing of the Act.
In art I of the current agreement, the Employer recognizes the
Union as "the sole bargaining agent with respect to wages, hours and
working conditions for all food service employees on the payroll of its
food service operation at George C. Marshall Space Flight Center,
NASA, Huntsville, Alabama. Specifically excluded from the bargaining
unit are all office clerical employees, guards and watchpersons, profes-
sional employees, chef managers, and supervisors as defmed in the Act as
amended as well as other employees of the Employer in any of the Em-
ployer's other divisions, branches, or units" (G.C. Exh. 3).
appear next to this proposal, and there are other mark-
ings. McCauley said that he did not write them (R. Exh.
6).
At the next session, on January 4, 1983, McCauley said
that the Company was ready to include article XIII in a
new agreement. "Mr. Race," he told the union represent-
ative, "we are agreeing on the basis that we are includ-
ing applicable federal and state law." "We live by the
law," Race responded. The parties reached agreement on
remaining issues on January 19, 1983, and the contract
was signed in March 1983. It contains article XIII in the
same language as indicated above. The opening sentence
of the contract describes it as an "agreement made as of
this 13th day of December 1982" (G.C. Exh. 3).
C. Union Attempts to Enforce the Agreement
In December 1982, Union President Bennie Ratliff dis-
covered that some employees were not members of the
Union. He called International Representative Race,
about February, for advice. The latter told Ratliff to
give each employee a copy of a letter which Race would
compose for Ratliff, and a membership card. According-
ly, Race prepared and Ratliff distributed to the non-
members a letter which invites them to join the Union,
recites the agreement between the parties (art. XIII), and
states that an employee who refuses to join would be
"subject to discharge." The initiation fees and first
month's dues are stated. The letter is cordial in tone. Al-
though there is a space for a due date, no date is indicat-
ed (G.C. Exh. 6).
Race also suggested that Ratliff file a grievance. On
February 17, 1983, Ratliff handed Unit Manager Shelby
Beddingfield 6 a document stating that the Company was
"violating government agreement and our contract . . .
that is, when some one is hired, they become a member
of the Union after 45 days. New employees are to be no-
tified of this agreement." 7 Ratliff gave Beddingfield a list
of employees "who [had] not been notified of this agree-
ment" (G.C. Exh. 7).8
Ratliff testified that he told Beddingfield that the
Union would be asking for termination of these employ-
ees. Beddingfield asked whether the Union wanted the
Company to go out and "twist their arm" and make
them join. Ratliff replied that the Union merely wanted
the Company to tell the employees what was in the con-
tract.
The Union received no reply from the Company, and
the employees failed to join the Union. Ratliff said the
Union had no intention to go to arbitration.
o The parties stipulated that Beddingfield was a supervisor within the
meaning of the Act.
7 Respondent attempted to impeach Ratliff's credibility by introducing
two documents (Ratliff's affidavit and a, letter to a nonmember) both of
which Ratliff said he signed (R. Exhs. 3(a), 4). Respondent contends that
the signatures are not the same, but did not introduce expert testimony
on the issue. Ratliff said that he was standing while signing one docu-
ment, and sitting while signing the other. Further, he used different pens.
I accept this explanation.
• Several but not all of the employees named in the complaint are
listed in this memorandum, and employees not named in the complaint
are listed.
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meanwhile, International Representative Race called
District Manager Carlye, who did not agree that the
contract required employees to join the Union. The dis-
trict manager also acknowledged several conversations
with Union President Ratliff in which the latter said the
Company should "force" the employees to join. Carlye
did not agree.
In late March, Race called Company Counsel McCau-
ley and argued that the Union could enforce a union-
shop agreement in a "federal enclave" located within a
right-to-work State, citing Lord v. Electrical Workers
IBEW Local 2088, 646 F.2d 1057 (5th Cir. 1981).
McCauley responded by letter dated April 15, 1983.
He acknowledged receiving a copy of the document
given to Beddingfield, and said that he had read the Lord
v. IBEW case. However, McCauley denied that the con-
tract required Respondent to "enforce or inform employ-
ees of union requirements The Employer has no wish or
right to intrude upon internal union affairs." Respondent
was not required to "take a position" on the question,
the letter continued, and would not "indiscriminately fire
employees at anyone's suggestion." The Union had an
obligation "to fairly represent its members," and had to
meet certain "requirements" before attempting to termi-
nate an employee under a union-security agreement.
"Therefore," McCauley concluded, "if the Union be-
lieves that it has justifiable and legal recourse to initiate
firing of a current employee, the Union must take its
own action, honestly and aboveboard" (G.C. Exh. 4).
Race replied on April 21. He recited what he stated
was the contract requirement that all employees must
become members of the Union as a condition of employ-
ment. He further stated that Respondent's "unit manag-
er" (Beddingfield) had been notified by the Union that
certain employees had not been informed of this require-
ment.
The last three paragraphs of substance in Race's letter
read as follows:
We respectfully submit that compliance with all
of the terms and provisions of our labor agreement
is necessary and important. We must insist that they
all receive equal concern from both the Employer
and the Union
I will reserve other comments on the contents of
your letter of April 15th, since it appears that you
have attempted to answer questions or respond to
requests not yet asked or made.
Both the Local Union Officers, and the under-
signed, would sincerely appreciate it if you would
reconsider your refusal to comply with the Union
Shop provision of our NASA unit Agreement [R.
Exh. 2].
Race had another conversation with McCauley in
which the latter said that the Lord v. IBEW case did not
apply to the NASA unit at Huntsville.
The Union filed two unfair labor practice charges
against the Company in 1983 but withdrew them. Ac-
cording to Race, he was not satisfied with the sufficiency
of the Union's notice to the employees. Accordingly, in
late October and early November 1983, Ratliff and union
member Joann Williams sent duplicate letters by certified
mail to the seven employees named in the complaint.
This was in accordance with advice from a Board agent.
Williams identified one of Respondent's exhibits as a
"sample letter" (R. Exh. 3(a)). It is addressed to Marie
Word, is identical to the original letter personally deliv-
ered to Word (G.C. Exh. 6), and contains the figure of
$13.56 as the first month's dues and initiation fees. The
certified mail receipts of the letters are in evidence and
show delivery in late October and early November (G.C.
Exhs. 8(a), 8(b)).
One of the employees (Wilburn Duskin) did not claim
his letter. However, Williams testified that she was
present when Ratliff personally delivered the first letter
to Duskin. The latter testified and acknowledged receiv-
ing the letter in late 1983
D. The Final Meeting of the Parties
The parties met in late 1983 at an arbitration proceed-
ing not related to this case. Company Counsel McCauley
placed the date as December 9. According to Race, after
the arbitration proceeding had concluded, he brought up
what he called "the continuing violation of the Union
shop provision" of the contract. He quoted the provision
and said that it was clear that an employee would have
to join the Union after the grace period as a condition of
employment McCauley said that he was not going to
give the Union any "legal advice," and Race replied that
he was not asking for it. According to District Manager
Carlye, Race said that he was going back to the NLRB.
McCauley testified at length about this meeting, but
his testimony is not entirely clear. He asserted that Race
would never admit that there was a second paragraph to
article XIII, but agreed that the Union had signed the
contract McCauley denied that he had ever received a
request from the Union to discharge a specific employee
but said that he knew some of the employees were not
union members. The parties stipulated that every union
member was on checkoff. McCauley's final version of
Race's demand was: "We want the Company to enforce
Article XIII and require the employees to become mem-
bers." McCauley's position was: "We are refusing to
honor the Union's position because . . . it was not the
negotiated position"
E. Respondent's Responses to the Union Efforts at
Enforcement
Union member Joann Williams testified that she over-
heard a conversation in the cafeteria between one of the
employees, who had received the Union's letter, and Su-
pervisor Beddingfield The employee asked about the
letter and Beddingfield replied, "The union don't sign
your paycheck, does it? Does Bennie Ratliff sign your
paycheck?" When the employee answered "No," Bed-
dingfield asked, "Well, isn't that a good enough answer
for you?" 9 Marie Word, one of the seven employees,
9 Williams placed this conversation before February 16, when the
"first letter was wrote up" This could not have been the correct date
The letter was not yet in existence, and I conclude that this was an inad-
vertent error in Williams' testimony
UNITED FOOD SERVICES 1615
told Williams that she was not joining the Union because
Beddingfield said she was not required to join. I credit
Williams.
Beddingfield testified and acknowledged telling em-
ployees that they did not have to join the Union as a
condition of employment, and that the Company would
not fire them if they refused to join.
F. Withdrawal from the Union
Union finance secretary Mary E. Hines testified she
sent a notice to Respondent in the fall of 1983 informing
it that employee Georgia Duskin had withdrawn from
the Union. Duskin was still working at Respondent's fa-
cility.
G. Legal Analysis and Conclusions
1. The 14(b) issue
The first proviso to Section 8(a)(3) of the Act allows
an employer, under certain circumstances, to make an
agreement with a labor organization requiring as a condi-
tion of employment membership in the labor organiza-
tion on or after the 30th day following the beginning of
employment, or the "effective date" of the agreement,
whichever is later. However, Section 14(b) affirms that
this language shall not be construed to authorize the exe-
cution or application of collective-bargaining agreements
requiring membership in a labor organization as a condi-
tion of employment, where this is prohibited by state or
territorial law.
I take judicial notice of the fact that Alabama law pro-
vides that every person shall be free to join or refrain
from joining a labor organization, that the right to work
shall not be denied because of membership or nonmem-
bership in such an organization, that an agreement re-
quiring such membership is illegal, and that such mem-
bership shall not be required as a condition of employ-
ment." However, Federal law has preempted Alabama
law in the field of labor relations except in a few cases
which are only of "peripheral" concern to Federal labor
law."
As already indicated, the alleged unfair labor practice
took place on property owned and controlled by the
Federal Government. Such property has been designated
as a Federal enclave, and, in Lord v. IBEW, supra, the
court held that jurisdiction by the Federal Government
over such enclaves is exclusive unless the deed of cession
provides to the contrary or unless the cession is not ac-
cepted in the manner required by law. There is nothing
in the record to indicate any such defect in the deed of
cession involving the George C. Marshall Space Flight
Center." The court held that the fact that the right-to-
'° Code of Alabama, Title 25, secs. 7-6, 7-30, et seq.
11 Universal Communications Corp. v. Burns, 449 F.2d 691, 693 (5th Cir.
1971).
12 In the Lord v. IBEW case, the court considered the applicability of
Florida's right-to-work law to the enforceability of collective-bargaining
agreements at Cape Canaveral Air Force Station and Patrick Air Force
Base. The case at bar involves the George C. Marshall Flight Center.
work law was enacted before the cession was not deter-
minative. Regardless of the chronology of enactment of
the law as compared to the date of cession, "states retain
no such power with regard to federal enclaves even
though they are physically located within their terri-
tory," Ibid., 646 F.2d at 1062.
Respondent argues that, because the collective-bar-
gaining agreement states that the union-security clause
must be in accordance with appropriate Federal and
state laws, the clause is therefore invalid. This is errone-
ous, because it is impossible for both state and Federal
law to be applicable. State law has been preempted by
Federal law.
The fact that the union-security clause provided only a
grace period of 45 days from date of last hire, but does
not set forth an alternative ending date of the effective
date of agreement, whichever is later, does not invalidate
the agreement." Respondent refused to honor the
Union's request more than 45 days after the effective
date of the agreement.
I, therefore, conclude that the union-security clause is
valid and enforceable.
2. The Union's fiduciary duty
It is established law that, before seeking enforcement
of a union-security clause, the union has a fiduciary duty
to inform the employee of his or her obligations, to fur-
nish a statement of the precise amount of dues owed, as
well as an explanation of the methods used to compute
the amount, and to provide a reasonable opportunity to
make payment. Kaiser Foundation Hospitals, 258 NLRB
29, 30 (1981). In the case at bar, the Union first delivered
letters by hand to the employees named in the complaint,
and later mailed them certified letters. Williams testified
that the one letter in evidence was a "sample" letter
(G.C. Exh. 6; R. Exh. 3(a)). The letters were all the
same, being form letters prepared by Race. They state
the sum of $13.56 due as the initiation fee and first
month's dues. I infer from Williams' testimony that the
other letters contained the same amount. No due date
was indicated, and the demand was therefore not unrea-
sonable. I conclude that the Union thereby fulfilled its fi-
duciary responsibilities to the employees.
3. Interpretation of the contract
We thus arrive at the real issue in this case. What is
the obligation of an employer who agrees that all em-
ployees, as a "condition of employment," shall become
members of the union after a specified date? Respond-
ent's position is that the employer has no obligation
whatever until the Union has fulfilled its fiduciary duties,
and has demanded the discharge of a named employee. I
do not agree with the latter prerequisite.
What is a "condition of employment?" It is no more or
less than a company rule which the employee must obey
or suffer discipline. In the case of the usual union-securi-
ty provision, as here, the specified discipline is that of
13 Television & Radio Employees Local 804 (Triangle Publications), 135
NLRB 612 (1962), enfd. 315 F.2d 398 (3d Cir. 1963); American Seating
Co., 98 NLRB 800 (1952).
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge. In other words, the Company has agreed to
adopt and implement a rule requiring union membership,
with discharge as the penalty for failure to observe the
rule.
It is unconscionable, however, to permit enforcement
of a company rule without prior notification of the rule
to the employees. An employer who, faced with an alle-
gation of a discriminatory discharge, argues that he was
merely enforcing a rule which he had never communi-
cated to his employees, would be found to have ad-
vanced a pretext—employees cannot be expected to obey
rules about which they have not been informed.
It is not the responsibility of a union to inform em-
ployees about an employer's rules—it is the function of
the employer. Here, the Union did all that it could do—
it informed the employees that they would be "subject to
discharge" if they did not become members. It then
asked the Company to tell the same thing to its employ-
ees, and the Company refused. Its reason—that the
Union first had to request the discharge of named em-
ployees—ignores the Company's obligation to abide by
the collective-bargaining agreement. It agreed to enforce
a rule requiring union membership. Implied in that un-
dertaking was an obligation to inform its employees of
the rule.
Respondent's position—that the Union must first re-
quest discharge—would be inimical to the principles of
collective bargaining. The Union here did not really
want to cause the employees to be discharged—it
wanted them to join the Union and keep their jobs.
Having the employer support this position by announc-
ing the agreed-upon rule to the employees is far more
conducive to labor peace than letting matters proceed to
the confrontation of a union demand for discharge.
The Board has found that an employer violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to honor a
union-security clause without any clear evidence that the
union specifically demanded discharge of employees.
Thus, in ruling upon a Motion for Summary Judgment,
"the Union gave Respondent written notice that 9 of ap-
proximately 22 unit employees had failed . . . to tender
the dues and initiation fees necessary to acquire or main-
tain union membership. Since that date, Respondent has
steadfastly refused to honor the Union's request to terminate
the employment of those nine delinquent employees" [em-
phasis added] King Electrical Mfg. Co., 229 NLRB 615,
616 (1977).
Although Respondent argues that such demands could
not lawfully be made between the expiration of the old
contract and the date that the new one was signed in
March 1983, it is obvious that the Union made additional
demands after the signing of the agreement—the last one
being made in December 1983.
The Company knew what the Union wanted—to have
the Company inform the employees of their obligation. It
also knew the name of every employee who was not a
member of the Union. Since all union members were on
checkoff, every employee not on checkoff was not a
union member, and the Company obviously knew the
names of the employees whose dues it was remitting to
the Union The fact that the Union may have omitted the
name of an employee who was not a member of the
Union did not detract from its request to the Company.
I, therefore, conclude that by repeatedly refusing to
honor the Union's request to inform employees about
their obligations under the union-security provision of
the collective-bargaining agreement, Respondent thereby
violated Section 8(a)(5) and (1) of the Act
This conclusion is buttressed by the fact that Supervi-
sor Beddingfield admitted telling employees that they did
not have to join the Union as a condition of employ-
ment, and that Respondent would not discharge them for
refusing to do so. These statements were inconsistent
with the Company's obligation under the collective-bar-
gaining agreement. They "offend basic working of the
collective bargaining process," and are independently
violative of Section 8(a)(1) of the Act. House of Fabrics,
234 NLRB 1024, 1025-1026 (1978). Although such state-
ments by Beddingfield were not alleged in the complaint,
the matter was thoroughly litigated, and a separate find-
ing is therefore warranted under applicable Board law.
Respondent argues that this case should be deferred to
the grievance-arbitration provisions in the contract
However, although it appears from the record that there
are such provisions, only two pages of the current agree-
ment are in evidence, and they do not include the griev-
ance-arbitration provisions See United Technologies
Corp., 268 NLRB 557, 559 (1984). In light of the fact
that the Union did not proceed to arbitration, and the
matter was ignored by the Company, it cannot be said
that the record "demonstrates full acceptance by the par-
ties of the grievance and arbitration route to the resolu-
tion of disputes." United Technologies Corp., id., at 559 fn.
21
In accordance with my findings above, I make the fol-
lowing
CONCLUSIONS OF LAW
1. United Food Management Services, Inc., Alabama,
is an employer engaged in commerce within the meaning
of the Act.
2. Hotel Employees & Restaurant Employees Interna-
tional Union, AFL-CIO, CLC, Local 719, is a labor or-
ganization within the meaning of Section 2(5) of the Act
3. All food service employees at Respondent's food
service operation at George C Marshall Space Flight
Center, NASA, Huntsville, Alabama, excluding all office
clerical employees, guards and watchpersons, profession-
al employees, chef managers, supervisors as defined in
the Act, and Respondent's employees employed at any
other division, branch, or unit, constitute a unit appropri-
ate for collective bargaining within the meaning of Sec-
tion 9(a) of the Act
4 At all times material herein, the above-named labor
organization has been the exclusive bargaining represent-
ative of all the employees in the aforesaid appropriate
unit for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act
5. By refusing in mid-April 1983, and thereafter, to
inform its employees of their obligation to become union
members pursuant to the union-security provisions of a
collective-bargaining agreement entered into with the
UNITED FOOD SERVICES 1617
above-named labor organization as the exclusive bargain-
ing representative of all the employees of Respondent in
the appropriate unit, Respondent has failed to honor that
agreement and has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
6. By informing employees that they did not have to
join the Union as a condition of employment, and that
they would not be terminated even if they refused to join
the Union, Respondent violated Section 8(a)(1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
certain unfair labor practices, it is recommended that it
be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the purposes of
the Act.
It having been found that Respondent refused the
'Union's request to inform its employees of their obliga-
tion to become union members pursuant to the collec-
tive-bargaining agreement, and told employees that they
did not have to join the Union as a condition of employ-
ment, and that it would not discharge them for refusing
to do so, it will be recommended that Respondent cease
and desist therefrom and take appropriate action de-
signed to effectuate the purposes of the Act.
[Recommended Order omitted from publication.]