NLRB Advice Memoranda, UFCW (Kroger), National Labor Relations Board, (Apr 14, 2021)

The Region resubmitted these cases for advice regarding whether to continue to pursue dues checkoff allegations that were determined to have merit based on legal theories or initiatives that have either been rescinded or which the Acting GC does not wish to follow. Specifically, the Region sought advice on the following checkoff authorization issues: 1) the authorization's requirement that revocation be perfected via certified mail, 2) combining the application for Union membership on the same form as the checkoff and/or payroll deduction authorization in one “dual-purpose” document, 3) a “transferability provision” authorizing the Union to transfer the employee's dues obligation to any other employer under contract with the Union, 4) the Union's refusal to honor an untimely revocation after the expiration of the collective bargaining agreement containing the last valid union security clause following the “changed circumstance” of the enactment of a state right-to-work law, and 5) an annual revocation window that occurs after the employee's anniversary date. The Region made merit determinations as to the first three issues pursuant to initiatives on checkoff issues articulated in GC Memo 19-04, Unions' Duty to Properly Notify Employees of Their General Motors/Beck Rights and to Accept Dues Checkoff Revocations after Contract Expiration, (Feb. 22, 2019) and a June 2019 Appeals Minute in a Region 6 case, and did not seek advice as to these issues. In mid-2020, Advice directed the Region to issue a complaint as to issues 4 and 5; Advice's response in Kroger was in a Significant Advice Memo dated April 28, 2020, and in Meijer, a case-closing email dated May 6, 2020. We conclude that the Region should dismiss the charges, absent withdrawal, as to all five of these issues for the reasons discussed below.

The Union maintained dues checkoff authorization forms in each of these cases. Kroger concerned issues 1-4; Meijer concerned issues 1, 3, and 5.

As to issue 1, the Region should dismiss the allegation that requiring a valid revocation to be submitted by certified mail was unlawful in both cases, absent withdrawal, pursuant to GC Memorandum 21-02 Rescission of Certain General Counsel Memoranda (Feb. 1, 2021), rescinding GC Memo 19-04, Unions' Duty to Properly Notify Employees of Their General Motors/Beck Rights and to Accept Dues Checkoff Revocations after Contract Expiration (Feb. 22, 2019), which set forth the position that such certified mail requirements are unlawful.

Issue 2 concerns the allegation that the Union's combination of an application for union membership with the employee's checkoff authorization and/or payroll deduction authorization in the same document, so-called “dual-purpose” forms, are unlawful. The Region found merit, following Appeals' instructions in UFCW (Kroger), Case 06-CB-222829, Appeals Minute dated June 12, 2019, that a similar dual-purpose form was unlawful because it was confusing and potentially misleading. Because the merit determination was based on a novel theory unsupported by precedent, i.e., the Board has never before found dual-purpose forms unlawful, the Region should not pursue the allegation. See, e.g., Luke Construction Company, 211 NLRB 602, 604 (1974) (finding dual purpose membership/checkoff authorization card lawful).

As to issue 3, we conclude that the Region should not pursue the allegations in both cases that language authorizing the Union to transfer the employee's dues obligation to any other employer under contract with the union are unlawful because the allegations are contrary to extant precedent. See The Kroger Co., 334 NLRB 847, 849 (2001) (checkoff language authorizing transfer to a new employer, or following a gap in employment, lawful so long as the employee agrees to the arrangement as manifested in clear and unmistakable language).

Regarding issue 4, Advice had previously concluded in UFCW and Kroger, Cases 07-CB-240210 and 07-CA-240208, Significant Advice Memo dated April 28, 2020, that the Union's refusal to honor the employee's untimely revocation was unlawful because enactment of the state's right-to-work law was a changed circumstance that privileged revocation at will (after the collective bargaining agreement containing the last valid union security clause expired), relying broadly on Penn Cork, 156 NLRB 411, 414 (1965) principles privileging revocation at will following a deauthorization vote that, similarly, rendered a union security clause inoperative. Reversing course, we now find that dismissal is warranted because the employee's revocation request was untimely and because the extinction of a union-security obligation does not automatically privilege revocation at will, especially where it would be unreasonable to infer, based on the facts, that the employee signed the checkoff authorization solely to comply with a union-security obligation. In this regard, Pioneer Resources is controlling. General Teamsters Union Local No. 406 (Pioneer Resources, Inc.), Case 07-CB-137758, Significant Advice Memo dated February 19, 2015. There, we concluded that the union's refusal to revoke was lawful because 1) it was outside the employee's revocation window and 2) given that the employee separately elected to become a union member when she executed her authorization, it was unreasonable to infer that she signed the authorization solely to satisfy a union-security obligation. These conclusions also apply to the instant case. Thus, the precipitate for privileging revocation at will—the subsequent nullification of the union security clause that was in effect when the employee signed the authorization—is less consequential where, as here, the employee separately elected to become a union member; in other words, it is unreasonable to assume that the employee signed the checkoff authorization solely to fulfill the union-security obligation.

As to issue 5, Advice directed complaint in Meijer/UFCW Local 951, Cases 07-CA-240170, 07-CB-240295, case-closing email dated May 6, 2020, pursuant to a novel and highly technical argument that the authorization's language stating that the anniversary-based revocation window occurs after the end of yearly periods—i.e., the opportunity to avoid automatic renewal of the authorization occurs after the employee's anniversary date has already passed—creates a situation where deductions made within the 10-day window period but after the anniversary date are unauthorized. The Region should not pursue this allegation. Generally, Board law has held that anniversary-based revocation windows are reasonable, see Frito-Lay, 243 NLRB 137, 138 (1979), and we have not found a case challenging the window's placement after the end of yearly periods. The unauthorized deductions would total 10 days' worth at most, and in practice, we are not aware of a situation where the Union would continue deducting within the revocation period and/or refuse to refund deductions inadvertently collected during that period. Moreover, the employee in this case failed to submit a written revocation request altogether. Consequently, it would not effectuate the purposes and policies of the Act to pursue this allegation.

In sum, absent withdrawal, the Region should dismiss the charges in these two cases in their entirety for reasons discussed above. To the extent the Significant Advice Memo and case-closing email previously issued in these cases and referred to above directed a different conclusion, they should no longer be followed.

This email closes these cases in Advice. Please contact us with any questions or concerns.

Sincerely

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