Communications Workers Local 11509 (Pacific Bell)

National Labor Relations Board - Board Decisions

May 27, 1987

283 N.L.R.B. 1143 (N.L.R.B. 1987)

COMMUNICATIONS WORKERS LOCAL 11509 (PACIFIC BELL) 1143
Communications Workers of America , Local 11509,
AFL-CIO (Pacific Bell) and Joseph M. Dona-
hue., Case 21-CB-9703
27 May 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 11 February 1987 Administrative Law Judge
Jerrold H., Shapiro issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief. I
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to `affirm the judge's rulings, findings, and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Communica-
tions Workers of America, Local 11509, AFL-
CIO, San Diego, California, its officers, agents, and
representatives, shall take the action set forth in the
Order.
the National Labor Relations Board (the Board), alleging
that on May 1, 1986, the Respondent requested Pacific
Bell to terminate its employee Donahue for failure to
pay his,dues to Respondent in compliance with a con-
tractual union-security clause, and further alleges that by
engaging in this conduct Respondent violated Section
8(b)(2) and (1)(A) of the National Labor Relations Act
(the Act), because prior to requesting Donahue's dis-
charge Respondent failed to advise him of the amount of
dues owed, or the method used to compute the amount
of dues owed, or that discharge would result from his
failure to pay the delinquent dues, nor did Respondent
afford Donahue time in which to pay the dues he owed.
Respondent filed a timely answer denying the commis-
sion of the alleged unfair labor practices.
On the entire record, from my observation of the de-
meanor of the witnesses, and having considered the par-
ties' oral arguments, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER INVOLVED
Pacific Bell, the employer involved in this case,, is a
California corporation that operates a telephone and tele-
graph system in the State of California. During the 12-
month period immediately preceding the issuance of the
complaint in this case, Pacific Bell received gross reve-
nues in excess of $1 million and purchased and received
goods and supplies valued over $5000 directly from sup-
pliers located outside the State of California. Respondent
admits, and I find, that Pacific Bell is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act. I further find it will effectuate the
purposes of the Act to assert jurisdiction.
I We have treated the Respondent's document entitled "Request for
Review" as exceptions to the judge's decision We'deny, as lacking in
ment, the General Counsel's motion to strike the Respondent's excep-
tions
2 In adopting the judge's conclusion that the Respondent violated Sec
8(b)(2) and (1)(A) of the Act, we agree with his finding that International
Union Representative Pearce was acting as an agent of the Respondent
when he requested that the Employer terminate employee Donahue for
nonpayment of dues See Carpenters Local 1016 (Bertram Construction),
272 NLRB 539, 542 (1984), General'Motors Corp., 237 NLRB,1509, 1518
(1978), Carpenters Local 64 (Western Dry Wall), 204 NLRB 590 (1973)
We note that Pearce's action was taken in response to the Respondent's 1
May 1986 memorandum to Pearce titled "Local Request to District for
Termination of Employment" and that Pearce attached a copy of the I
May memorandum to his request that the Employer discharge Donahue
Theodore R. Scott, for the General Counsel.
Donald A. Hon, for the Respondent.
DECISION
STATEMENT OF THE CASE
JERROLD H . SHAPIRO, Administrative Law Judge.
This proceeding in which a hearing was held on Decem-
ber 5, 1986 , is based on an unfair labor practice charge
filed August 28, 1986 , by Joseph M. Donahue (Donahue)
against Communications Workers of America, Local
11509, AFL-CIO (Respondent), and on a complaint
issued September 16, 1986 , by the General Counsel of
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I
find that Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
During all times material, Pacific Bell and Respondent
have been parties to a collective-bargaining contract that
contains, inter alia, a valid union-security clause. The
Charging Party, Donahue, has been employed since 1981
by Pacific Bell in the bargaining unit covered by the
contract. He is not a member of Respondent, but under
the contractual union-security clause is obligated to pay
Respondent the equivalent of monthly dues as a condi-
tion of employment.
Although Donahue's monthly dues payment is due by
the 26th of the month, he usually does not make his
monthly payment until the month following the one in
which payment was due. Respondent does not treat him
as being delinquent in his payments so long as he makes
his monthly payment no later than the 25th of the fol-
lowing month. Donahue paid his dues for January 19861
I All dates hereinafter, unless stated otherwise, refer to the year 1986
283 NLRB No. 163
1144 DECISIONS OF THE NATIONAL LABOR - RELATIONS BOARD
on February 12 and for February on March 21. He did
not, however, tender his payment for March until May 2
at which time he paid his March and April dues.
On- May 1 Respondent 's president , Douglass Wood-
bury, transmitted a memorandum , signed by Woodbury,
to Reid Pearce, a staff. representative of Respondent's
International Union , which in substance "certified" that
Donahue , had failed to pay or tender his equivalent of
membership dues for the months of March and April and
as, a result owed $61.10-$30 . 55 per month-and request-
ed the termination of Donahue 's employment with , Pacif-
ic Bell in accordance with the union -security provisions
of the current collective-bargaining contract between
Respondent and Pacific Bell. The memorandum also
noted that "a copy of this certification has been mailed
to [Donahue]." No evidence was presented that in fact a
copy of the memorandum was mailed or otherwise trans-
mitted to Donahue by Respondent . Donahue credibly
testified he did not receive a copy of this memorandum
from Respondent.
On May 2 Respondent's International union staff rep-
resentative , Pearce, transmitted to Pacific Bell's labor re-
lations department a copy of Respondent President
Woodbury 's above-described May 1 memorandum' and
with it Pearce also transmitted a covering memorandum
that requested that Pacific Bell terminate Donahue for
nonpayment of dues in accordance with Woodbury's
May 1 memorandum.
On a date not specified in the record , Respondent's
International Staff Representative Pearce received a
memorandum from Respondent President Woodbury ad-
vising Pearce that on May 2 Donahue had satisfied his
dues delinquency. Although Pacific Bell did not dis-
charge Donahue, as requested by Pearce 's May 2 memo-
randum , there is no evidence Respondent Union ever no-
tified Pacific Bell or Donahue that the May 2 request
that Pacific Bell discharge Donahue for dues delinquen-
cy was rescinded . In fact there is no evidence that the
request was rescinded.
About May 6 Donahue 's supervisor notified him Pacif-
ic Bell 's labor relations department had received a writ-
ten request for his termination from Respondent because
he was delinquent in his dues payments . Donahue replied
that the request was "out of line" because he had paid
his dues and asked for a copy of the request . A few days
later Donahue 's supervisor gave him a copy of Respond-
ent President Woodbury 's above-described May 1 memo-
randum to Staff Representative Pearce.
Donahue credibly testified , without contradiction, that
prior to requesting that Pacific Bell terminate him for
nonpayment of dues, Respondent , had not given him an
opportunity to satisfy his financial obligation by inform-
ing him of his obligation, or the months that the obliga-
tion was owed , or explained the method used - in comput-
ing the amount owed, and had not given , him notice he
would be terminated unless , he paid the amount owed.
B. Discussion
A labor organization seeking to enforce a union-securi-
ty provision against an employee has a "fiduciary" duty
to "deal fairly" with the employee affected. "At a mini-
mum, this duty requires, that the union inform the em-
ployee of his obligations in order that the employee may
take whatever action is necessary to protect his job
tenure." NLRB v. Hotel & Restaurant Employees Local
568 (Philadelphia Sheraton), 320 F .2d 254 , 258 (3d Cir.
1963); Accord : H. C. Macaulay Foundry v. NLRB, 533
F.2d 1198 , 1201 (9th Cir. 1977). In Teamsters Local 122
(Busch & Co.), 203 NLRB 1041 , 1042 (1973), the Board
specifically defined the union 's duty as including "a
statement of the precise amount and months for which
dues were owed , as well as an explanation of the method
used in computing such amount," plus "an adequate op-
portunity to make payment." In addition, the -union must
specify when such payments are to be made and make it
clear to the employee that discharge will result from fail-
ure to pay. Western Publishing Co., 263 NLRB 1110, 1,112
(1982).
In the instant case when Respondent through its agent
Pearce on May 2 requested Pacific Bell to comply with
the contractual union -security provision . and terminate
Donahue for nonpayment of dues, Respondent , as I have
found supra , had not given Donahue a statement of the
precise amount and months for which dues were owed,
or'an explanation of the method used in computing his
liability, nor had Respondent made it clear to Donahue
that discharge would result from a failure too pay his
dues. In other words , when Respondent on May 2 re-
quested Pacific Bell, to comply with the contractual
union-security clause and terminate Donahue for nonpay-
ment of dues, it had not contacted Donahue and, fur-
nished him with any of the information the Board has
found necessary to a union's fiduciary duty to deal fairly
with an employee in enforcing a contractual union-secu-
rity clause. In view of this, I find Respondent violated
Section 8(b)(2) and (1)(A) of the Act, when on May 2 it
requested Pacific Bell to terminate Donahue.
In concluding that Respondent violated Section 8(b)(2)
and (1)(A) of the Act by attempting to cause,Pacific Bell
to discharge Donahue for failure to tender periodic dues
without adequately advising him of his obligations, I
have considered and rejected Respondent 's contention
that the matter is moot and for this reason the complaint
should be dismissed or no remedy imposed : In this
regard , I note there is no evidence Respondent rescinded
its May 2 request that Pacific Bell terminate Donahue's
employment for nonpayment of dues, nor that it ever in-
formed Donahue that the request was rescinded., More-
over , Respondent's failure to meet its "minimum" obliga-
tion in enforcing the union-security agreement, does not
appear to be an isolated occurrence . Thus, in 1984- Re-
spondent requested Donahue's discharge for dues delin-
quency. Thereafter , in response to Donahue's unfair
labor practice charge, Respondent rescinded this request
and entered into a Board settlement that provided that
Respondent would notify Donahue in a timely manner of
his union-security obligations before requesting his termi-
nation (Tr. 16-17 , 119-20). In view of all these circum-
stances and considering the seriousness of Respondent's
misconduct , I have rejected Respondent 's argument that
Respondent 's misconduct has become moot.
COMMUNICATIONS WORKERS LOCAL 11509 (PACIFIC BELL) 1145
CONCLUSIONS OF LAW
1. Pacific Bell, the Employer, is now, and has been at
all times material , an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Communications Workers of America, Local 11509,
AFL-CIO is, and at all times material has been , a labor
organization within the meaning of Section 2(5) of the
Act. -
3. By attempting to cause Pacific Bell to discharge
Joseph M. Donahue -for failure to tender periodic dues
without adequately advising him of his obligations, Re-
spondent has engaged in unfair labor, practices within the
meaning of Section 8(b)(2) and (1)(A) of the Act,
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Communications Workers of Amer-
ica, Local 11509, AFL-CIO, San Diego, California, its
officers, representatives, and agents, shall
1. Cease and desist from
(a) Attempting to cause Pacific Bell to discharge or to
otherwise discriminate against Joseph M. Donahue, or
any other employee, for failure to tender periodic dues
without adequately advising him of his obligations, in
violation of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise ' of the rights guaranteed
them by Section 7 of the Act.
2, Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify Pacific Bell, in writing, and advise Joseph
M. Donahue, in writing, that it rescinds its May 2, ,1986
request that the employee be discharged or not allowed
to work and that it has no objection to his continued em-
ployment with unimpaired rights and privileges.
(b) Post at its business office copies of the attached
notice marked "Appendix."3 Copies of the notice, on
2 If no exceptions are filed as provided by Sec '102.46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board .and all objections to them shall be deemed waived for all pur-
poses.
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
forms provided by the Regional Director for Region 21,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
members are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(c) Forward a sufficient number of signed copies of
the notice to the Regional Director for Region 21 for
posting by the Employer at its place of business in San
Diego, California, in places where notices to employees
are customarily posted, if the Employer is willing to do
so.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT attempt to cause Pacific Bell to dis-
charge or to otherwise discriminate against Joseph M.
Donahue, or any other employee, for failure to tender
periodic dues without adequately advising him or her of
their obligations, in violation of Section 8(a)(3) of the
National Labor Relations Act.
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 notify, in writing, Pacific Bell and Joseph
M. Donahue that we rescind our May 2, 1986 request
that he be discharged or not allowed to work and that
we have no objection to his continued employment with
unimpaired rights and privileges.
COMMUNICATIONS WORKERS OF AMERICA,
LOCAL 11509, AFL-CIO