Communications Workers Of America, Local 9509, Afl-Cio (Pacific Bell)

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 196 (N.L.R.B. 1989)

196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
'Communications Workers of America, Local 9509,
AFL-CIO (Pacific Bell) and Frances Cochran.
Case 21-CB-10002
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On July 28, 1988, Administrative Law Judge
Clifford H. Anderson issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief and the Respondent filed an answer-
ing brief.
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
conclusions as modified and to adopt the recom-
mended Order.
The judge dismissed the complaint that alleged
that the Respondent had violated Section
8(b)(1)(A) and (2) of the Act by informing the
Charging Party, employee Frances Cochran, that it
would seek her discharge and by requesting the
Employer, Pacific Bell, to discharge her for her
failure to pay certain moneys to the Respondent at
a time when Cochran allegedly was under no obli-
gation to tender those sums as a condition of em-
ployment . We agree with the judge 's dismissal of
the complaint, but we do so for the following rea-
sons.
We first agree with the judge 's findings and rea-
soning in section III,B ,1 of his decision that Coch-
ran (1) was covered by the union-security clause
requiring employees who joined the bargaining unit
to tender certain fees and dues to the Respondent
and that (2) she was also covered by the grandfa-
ther agreement that exempted certain employees
from this financial obligation but which listed three
conditions under which this exemption would ter-
minate . We next agree with the judge 's finding in
section III ,B,I of his decision that, under the terms
of the grandfather agreement , Cochran lost her ex-
emption when she initiated a "permanent transfer"
in April 1985, and that she thereafter was subject
to the union -security clause.1
' The General Counsel excepts to the judge 's finding that the grandfa-
ther agreement met the requirement that union -security provisions be ex-
pressed in clear and unmistakable language. The General Counsel con-
tends that the phrase "permanent transfer" noted in the grandfather
agreement is ambiguous because it is not clear whether it applies to em-
ployees who , as Cochran did, exercise their right to "retreat" back to
their original position within 6 months of their transfer . The record, how-
ever, shows that the phrase "permanent transfer" was clearly meant to
We next note that the Respondent in July 1987
sought Cochran's discharge for her failure to
tender periodic membership dues or their equiva-
lent. Under Philadelphia Sheraton ,2 a union seeking
to enforce a union-security clause against an em-
ployee has a fiduciary duty to deal fairly with that
employee . This requires that before a union may
seek the discharge of an employee for the failure to
tender owed dues and fees, it must at a minimum
give the employee reasonable notice of the delin-
quency, including a statement of the precise
amount and months for which dues are owed and
of the method used to compute this amount, tell
the employee when to make the required payments,
and explain to the employee that failure to pay will
result in discharge .3 We find that the Respondent
met its fiduciary duty to Cochran in this case by its
July 1987 notification to her that is fully detailed in
section III,A,3, of the judge's decision. The Re-
spondent contacted Cochran and attempted to
secure voluntary compliance promptly on discov-
ery of the fee arrearage. Accordingly, we affirm
the judge 's dismissal of the complaint.4
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
distinguish transfers to permanent positions from transfers to temporary
or occasional jobs , and that it has no connection with the provisions per-
mitting employees to "retreat." As Cochran transferred to a permanent
position , her transfer was clearly "permanent ," and it was even so desig-
nated on the form the Employer used to transfer her. Accordingly, we
reject the General Counsel's argument
2 Hotel Employees Local 568 (Philadelphia Sheraton), 136 NLRB 888
( 1962), enfd . 320 F.2d 254 (3d Cit . 1963).
a Western Publishing Co., 263 NLRB 1110, 1111-1112 (1982), and cases
cited there.
4 Because we find that the Respondent met its fiduciary obligations to
Cochran before it sought her discharge, we need not pass on , and specifi-
cally decline to rely on , the judge 's discussion in sec III ,B,2 of whether
Cochran should have inquired into the interpretation and application of
the union-security clause and the grandfather agreement.
Robert R . Petering, Esq., for the General Counsel.
David Borgen, Esq., of Burlingame , California, and
Donald Hon, Esq., of San Diego , California, for the
Respondent.
Frances Cochran , of San Diego , California, pro se.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON , Administrative Law Judge. I
heard this case in trial on February 26, 1988, in San
Diego, California , pursuant to a complaint and notice of
hearing issued on October 19, 1987, by the Regional Di-
rector for Region 21 of the National Labor Relations
Board based, on a charge filed by Frances Cochran, an
individual , on August 26, 1987, and an amended charge
295 NLRB No. 27
COMMUNICATIONS WORKERS LOCAL 9509 (PACIFIC BELL) 197
filed on October 13, 1987, against Communications
Workers of America, Local 9509, AFL-CIO (Respond-
ent or the Union).
The complaint alleges and Respondent admits that Re-
spondent 's agents at various times informed Ms. Cochran
that it would request her employer , the Pacific Bell
Company (the Employer), to discharge her for failure to
tender dues and initiation fees to Respondent . The com-
plaint further alleges and Respondent admits that at vari-
ous times its agents contacted agents of the Employer
seeking the discharge of Ms . Cochran as a result of her
failure to tender those sums . The complaint finally al-
leges, and Respondent denies, that the above acts oc-
curred at a time when Ms . Cochran was under no obliga-
tion to tender dues or initiation fees as a condition of em-
ployment thereby constituting violation of Section
8(b)(1)(A) and (2) of the National Labor Relations Act
(Act).
All' parties were given full opportunity to participate
at the hearing, to introduce relevant evidence , to call, ex-
amine, and cross-examine witnesses , to argue orally, and
to file posthearing briefs.
On the entire record , including briefs from the General
Counsel and Respondent , and based upon my observa-
tion of the witnesses and their demeanor , I make the fol-
lowing'
FINDINGS OF FACT
I. JURISDICTION
The Employer is a California corporation engaged in
the operation of a telephone and telegraph system in the
State of California. In the normal course and conduct of
its business operations , the Employer annually enjoys
gross revenues in excess of $1 million and purchases and
receives goods and supplies valued in excess of $50,000
directly from suppliers located outside the State of Cali-
fornia . The Employer is, and has been at all times materi-
al, an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.2
II. LABOR' ORGANIZATION
Respondent is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Evidence
1. Background
At relevant times Respondent has represented certain
employees of the Employer who have been covered
' As a result of the pleadings , stipulations of counsel , and the unchal-
lenged testimony of various witnesses at the hearing , the parties substan-
tially reduced the factual matters in dispute. Where not otherwise noted,
my findings herein are based on the pleadings , stipulations, and/or uncon-
tested documentary and testimonial evidence.
2 The Employer was formerly part of the unified national telephone
system which has since been restructured. The restructuring is not rele-
vant to the instant case.
under a series of collective-bargaining agreements. The
relevant contractual union -security language is not under
challenge and , in essence , requires employees who join
the bargaining unit to tender initiation fees and periodic
dues to Respondent.
On May 31, 1983, Respondent and the Employer ex-
panded the existing . bargaining unit to include for the
first time the Employer's nonsupervisory marketing em-
ployees located in its business services staff offices.3 The
then-existing contract was also applied to the employees
including the union-security clause . In so doing , howev-
er, the parties, in a separate written agreement (the
grandfather clause), modified the contract's union-securi-
ty clause insofar as it was to apply to the accreted bar-
gaining unit employees as follows:
The Union and the Company agree that certain
previously non-represented employees named in our
list to be furnished to the Union as soon as possible,
who will be included in said bargaining unit, will be
exempt from the obligation to tender to -the Union
amounts equal to the periodic dues under the provi-
sions of Article 17 of the Contract . This exemption
will terminate for an employee under the following
conditions:
1. As the result of an employee-initiated perma-
nent transfer, an employee changes title or work lo-
cation; or
2. The employee becomes a member of the
Union; or
3. The employee voluntarily elects to tender to
the Union an amount equal to the periodic dues.
The Union and the Company further agree that
any new employees added to the Business Service
Centers and Business Services Staff or employees
who permanently replace any of the above-men-
tioned exempt employees will be obligated to tender
the Union amounts equal to the periodic dues under
the provisions of Article 17.
The collective-bargaining agreement; including both
the union-ssecurity and the "grandfather agreement"
quoted above, had been renewed and extended without
hiatus through the time of the hearing.
2. Cochran's employment history
Frances Cochran was initially hired by the Employer
in August 1978 as a service representative at the Em-
ployer's business office on "B" Street in San Diego, Cali-
fornia, and continued in that capacity until April 1985.
Ms. Cochran 's position was one of those accreted into
tli'e unit represented by Respondent in 1983 . According-
ly, Cochran began receiving the wages and, benefits set
forth in the contract and became subject to the union-se-
curity clause as modified by the grandfather clause.
At the time the accretion and grandfather clause were
consummated, the Employer and Respondent made vari-
ous efforts to inform the accreted employees of the de-
tails and consequences of the agreements . Credible testi-
0 While the accretion was apparently challenged at the time of its oc-
currence , the General Counsel does not contest its propriety here.
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mony was received that both the Employer and Re-
spondent's agents addressed employees concerning the
accretion, the grandfather clause and its application. An
employee working in the same area as Cochran credibly
testified that she was specifically informed that grandfa-
thered employees would lose their grandfather status if
they transferred out of the work group . Cochran testi-
fied , however, that though she received information re-
specting the terms and consequences of the accretion, in-
cluding the fact that new employees and employees
transferring into her office would not be exempt from
the union-security clause, she was never told that she
would lose her "grandfather" status by transferring out
of the newly accreted group.
In April 1985 Cochran initiated a transfer procedure
applicable to bargaining unit employees . Cochran in
effect sought to transfer to a full -time position in a sepa-
rate office and under a different district manager. The
Employer's personnel practices applicable to such a
transfer allow an employee who receives such a transfer
to seek to "retreat" within 6 months of acceptance of the
position . A retreat is, in essence, a return to the former
position . In August 1985 after receiving her voluntary
transfer in April 1985 , Cochran timely initiated the "re-
treat" process and, in September 1985, returned to her
office and former duties,4 remaining there to the time of
the hearing.
3. The Union's actions respecting Cochran
During Cochran 's initial stint in the business office as a
"grandfathered" employee Respondent made no efforts
to apply the union-security clause to her nor did she ever
join or tender moneys to Respondent . Following her
transfer in April 1985 to a position which was not
exempt from the union -security obligations of the con-
tract, the Union made no attempt to obtain dues or initi-
ation fees from her nor did she volunteer to make such
payments . After Cochran's return to her original posi-
tion , through the exercise of her "retreat" in August 1985
through June 1987, the Union still made no effort to
induce Ms. Cochran to tender dues or initiation fees and
Cochran did not initiate such payments.5
In June 1987 an employee in Cochran 's work group,
Kurt Hauser, who was working as a member of Re-
spondent's audit committee , noticed Cochran 's name on
the Employer's computerized list of grandfathered em-
ployees. Knowing that Cochran had transferred to her
position from a nongrandfathered office, Hauser reported
the matter to Respondent 's secretary-treasurer, Robert
Sarsfield, who in turn initiated an investigation of the
* Transfers of the type involving Cochran are covered in some detail
by the collective -bargaining agreement at Sec . 304.06 et seq. An employ-
ee seeking to "retreat" to his or her former position is not entitled to
return immediately but, rather , will be transferred if and only when a va-
cancy in the previous position occurs
e The Union 's inaction was based on simple ignorance of her status.
Following her return to her original position , the Employer's records
continued to list her on computer prepared nonmembership lists, thus, in
effect , labeling her as a grandfathered employee exempt from union secu-
rity. While there was some dispute on brief as to whether or not the
Union should have been able to discern Cochran 's status as a returning
grandfathered employee from other records available to it and that its
failure to do so was negligent , I find it unnecessary to decide the ques-
tion. See further discussion , infra.
union-security status of Cochran . The matter was ulti-
mately referred to Respondent 's vice president, Carol
Stegall, who commenced Respondent 's standard proce-
dures in such matters . Thus, Stegall contacted Joan Jor-
genson , the Employer 's personnel agent in the district
business office responsible for union -security questions,
and asked that she issue a payroll deduction. authoriza-
tion to Cochran to allow her to authorize the checkoff of
union-security payments to Respondent.
A few days later Stegall learned that Cochran was ap-
parently unwilling to sign such a form . Stegall thereafter
spoke with Cochran by telephone on July 2, 1987. In
that call Cochran took the position that she remained a
grandfathered employee not subject to the contract's
union-security clause . Stegall told Cochran that she had
lost her grandfather status at the time she transferred of-
fices . Cochran reasserted that she had not lost her grand-
father status . Stegall explained that the Union 's delay in
contacting her was based upon mistaken interpretation of
payroll records . Cochran 's position , as testified to by Ste-
gall, was "basically that nobody had ever told her that
she'd lose her grandfather status and that she felt she was
still grandfathered."
Following their conversation Stegall sent Cochran a
letter with the following text:
Please be advised that Article 3 .06 of the Pacific
Bell contract specifically states, in part , employees
"shall as a condition of employment pay or tender
to the Union amounts equal to the periodic dues."
This means payment is mandatory.
Union dues or dues equivalence are deducted the
first payroll period of the month . The dues rate is
equal to two (2) hours of your basic rate of pay.
You have the option of making payments by payroll
deduction or by direct payments to the Local.
Should you decide to make payments , payments are
due by the first of the month and are in arrears by
the last day of the month . Notification to the Union
of your choice to make direct payment or the
return of your payroll deduction card to your Dis-
trict Office is necessary by July 15, 1987 otherwise
we must implement the contract, which means to
notify the Company to terminate your employment.
We have the right to collect back dues to May
1985 totaling $662.72. We definitely want to correct
this error immediately.
If you have any questions about the Union, pay-
ment of dues , or representation do not hesitate to
call the Union office on 619-695-1509.
Receiving no word from Cochran, on July 16, 1987, Ste-
gall sent a standard notice to Cochran and to the Union's
district office certifying that Cochran had failed to pay
or tender periodic membership dues for the period May
1985 to the date of the letter for an amount totaling
$662.72.
Cochran apparently received this letter on July 20,
1987, and wrote to Respondent 's area director that same
day. In her letter to the director , Cochran recites her his-
tory of employment and notes in part:
COMMUNICATIONS WORKERS LOCAL 9509 (PACIFIC BELL)
What instigated this whole affair was that I tem-
porarily transferred to the resident side of the house
from May 19 1985 to August 1985 with the under-
standing that I was still a grandfathered service rep-
resentative with retreat rights up to six months.
At no time was I informed that this move was
contingent on becoming associated with the Union
and paying union dues nor that my "grandfather"
status was in jeopardy.
... the union has no authority over me and
never has. I resent the fact , that they lied by saying
I stopped paying and now are trying to barge into
my life because as to what they believe was a com-
puter error.
On July 23, 1987, Respondent's International transmit-
ted the July 16 notice to Respondent and asked the Em-
ployer "in accordance with the attached , please process
the termination of Frances Cochran for nonpayment of
dues." The Employer received the request for dismissal
on July 27, 1987, and , consistent with its normal practice
in such matters , initiated a series of contacts with Coch-
ran. Thus, in a memorandum to Cochran 's district man-
ager, the Employer 's Industrial Relations Department in-
structed the district manager:
Please contact the employee promptly . Inform the
employee we must have satisfactory evidence
within ten days that the delinquency has been
cleared if she wishes to continue employment with
us. Please notify our office by telephone [phone
number omitted ] of the result of the contact with
the employee.
On August 26, 1987 , the district manager was sent a
"three-day letter" by the Industrial Relations Depart-
ment informing her that Cochran must supply evidence
of satisfaction of the delinquency within 3 days.6
Faced with these circumstances , Cochran entered into
an agreement with Respondent under which periodic
payments would be made on her union-security arrears.
Cochran filed the instant charge on August 26 , 1987, and
signed the agreement with the Union on September 1,
1987 . The payment schedule in the agreement has appar-
ently been followed. Cochran remained in the Employ-
er's employ at the time of the hearing.
B. Analysis and Conclusions
This case presents essentially two separate questions.
First, is Respondent entitled, under the unusual circum-
stances set forth above, to apply the union -security
clause to Cochran prospectively, i.e., after notifying her
of her obligations? Second , is Respondent entitled to seek
dues from Cochran retroactive to 1985? These two issues
require the threshold resolution of the applicability of the
union-security clause, as modified by the grandfather
clause, to "retreating" employees.
1. Does the union-security clause apply to Cochran?
The application of the union clause-security to Coch-
ran in the instant case involves several questions . First, is
6 That 3 -day deadline was subsequently extended
199
the general question : does an employee who initiates a
permanent transfer but thereafter utilizes the employer's
"retreat" provisions to return to the original position lose
his or her grandfathered status? The General Counsel
argues that the retreat provisions , which are exercisable
within a 6-month period after an employee initiated per-
manent transfer has occurred , protects a grandfathered
employee if a retreat right is exercised . Respondent
strongly contests this interpretation , arguing the clause
operated as of any transfer and never considered "re-
treats" as relevant .' I reject the General Counsel 's notion
that somehow the retreat provisions create an exception
to the clear meaning of the grandfather agreement that a
grandfather exemption would be immediately lost by any
employee who transfers or changes title or work loca-
tions . In making this finding I am mindful of the Board's
doctrine, as set forth in the General Counsel 's cited case,
Jack Watkins, G.M.C., 203 NLRB 632, 635 (1973). In
that case Judge Rasbury, with Board approval , stated:
Moreover , the Board has for many years had a
policy that the union- security provisions relied
upon in justification for discharge must be expressed
in clear and unmistakable language . [Footnote omit-
ted.] . . . In view of the extreme consequences that
can legally be imposed upon the nonconforming
employee, it is not asking too much to require the
parties to a labor agreement to express the essentials
of union-security • provisions in unmistakable lan-
guage . [Footnote omitted.]
I find that the grandfather agreement clearly meets
this rigorous Board standard . Accordingly , I find that
the grandfather status of an employee under the union-
security clause is lost when a permanent employee trans-
fer is initiated irrespective of whether or not a subse-
quent retreat occurs . Therefore , I find Cochran was sub-
ject to the union-security clause at all times after her
1985 transfer.
2. Respondent 's right to apply the union -security
clause to Cochran from July 1987
I have found the union-security clause applies to
grandfathered employees who have initiated permanent
employee transfers even though they have subsequently
retreated to their former position . Therefore, Cochran
was subject to the clause . The General Counsel argues
further, however, that for the Union to properly obligate
Cochran , it must have informed Cochran fully and un-
mistakably of the fact that she would lose her grandfa-
ther status before she undertook her transfer . Thus, the
General Counsel 's view is that, because Cochran was not
aware that she was abandoning her grandfather status by
transferring positions in May 1985, the Union may not
thereafter use her transfer against her to deprive her of
her.grandfather status . Thus, the General Counsel argues
T The Employer 's staff manager of labor relations, Eugene Hutchings,
and one of the Employer 's negotiatiors of the grandfather agreement,
specifically agreed with the Union 's interpretation of the clause and as-
serted this interpretation was the intention of the parties from the incep-
tion . I credit this unchallenged testimony.
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that even if the union-security clause applies to
transfer/retreat employees , it cannot apply to Cochran
on the facts present herein.
As will be discussed in greater detail infra, I do not
find that Cochran's alleged ignorance of the conse-
quences of a permanently initiated transfer may be used
on this record to deny Respondent the right to apply its
union-security clause to Cochran after notifying her of
her obligations . It is clear that, at the time the grandfa-
thered employees were accreted into the bargaining unit,
both management and union agents discussed with em-
ployees their inclusion under the contract and the exist-
ence and consequences of the grandfather clause. Coch-
ran, while she admitted of an incomplete recollection, re-
called that the grandfathered clause was discussed in
meetings at the worksite and that she was told that new
employees and employees transferring into the business
office would be covered by the union-security clause. As
Judge Rogesin stated in Teamsters Local 630 (Ralph's
Grocery), 209 NLRB 117 , 125 (1974), even if a union has
not fully fulfilled its duty to notify an employee of the
specific obligations and application of a union-security
clause, where an employee has knowledge of the exist-
ence of a union-security clause , there is a duty on the
part of the employee to inquire further respecting the in-
terpretation and application of its terms.8
In this case the language of the grandfather clause
clearly applied to transfers and Cochran should have
known that by transferring she would lose her grandfa-
ther status. Accordingly, I do not find that Cochran's ap-
parent ignorance of the consequences of her transfer ex-
empts her from coverage by the union-security clause
when she returned to her previously grandfathered posi-
tion. Thus, I find that Cochran's lack of sufficient infor-
mation regarding her status under the grandfather clause
in exercising her "retreat" rights in connection with a
permanently initiated employee transfer is not a valid de-
fense to Cochran 's union-security obligations following
her notification by the Union of that obligation in July
1987 . It follows, therefore , that Respondent was entitled
to apply the union-security clause to her after notifying
her of her obligations.
3. Was Respondent entitled to seek back payments
from Cochran?
a. The standard to apply
The Union in July 1987 sought and subsequently ob-
tained , under the threat of causing the Employer to ter-
minate Cochran, back dues and initiation fee equivalent
8 An Employer-prepared document was received into evidence over
the strenuous objection of Respondent which contained an entry that an
employer agent had telephoned the union office and been informed by an
unidentified individual that an employee under Cochran 's circumstances
would not lose her grandfather status . There is no evidence that Cochran
was ever informed that this was the union's view nor is there any evi-
dence identifying who, if anyone , at the union office made such a repre-
sentation. Respondent objected to receipt into evidence of this document
as a business . record, arguing it was lacking in trustworthiness . I agree
with Respondent that the document is not sufficient to establish any facts
relevant to my findings herein . I reaffirm my ruling at the hearing, how-
ever, that the document was receivable into the record for consideration
with all other evidence in resolving the issues in dispute.
payments from 1985. The General Counsel argues that,
even if a union is at all times entitled to collect dues and
fees, it may not sit on its hands for an unreasonable
period and then require an employee to make up all back
payments . This, argues the General Counsel , is what Re-
spondent did in the instant case.
The General Counsel relies heavily on the Board's de-
cision in Machinists Lodge 946 (Aerojet-General), 186
NLRB 561 (1970). The Board in that case held an em-
ployee who failed to make required payments under a
union-security clause for more than 7 years could not be
discharged at a union 's request without proper notice
and an opportunity to come into compliance with the
union-security clause . The Board stated at 562:
When [the applicable employee] continued to work
for years . . . without any attempt by Respondent
to enforce against him a union security provision,
he could well have assumed that Respondent was
not interested in him as a member and that he could
work freely as a non-member . We hold that the
Union was required "at a minimum" to tell [the ap-
plicable employee] that under the new contract it
would no longer countenance his non-membership
and failure to pay dues . The Union's failure to meet
this duty is not excused by its assertion that it had
no hostile intent . [Footnote omitted.]
Respondent correctly points out that the Aerojet case
turned on the question of a union 's obligation to notify
employees of union-security obligations and that any
broader holding is but dictum . The Union also cites two
later cases, Teamsters Local 630 (Ralph's Grocery), supra,
and John J. Roche & Co., 231 NLRB 1082 (1977), in
which labor organizations, after providing reasonable
notice to employees of dues obligations and arrearages,
were entitled to seek back dues under a union -security
clause for periods of time substantially before the notifi-
cation of the employees that they had a union -security
obligation.
I agree with Respondents counsel 's argument on brief
that the Aerojet-General case is obiter dictum insofar as it
goes beyond the narrow holding that employees must be
notified of their union-security obligations and arrearages
and must be provided an opportunity to fulfill their obli-
gations before discharge is sought . The fact that the Aer-
ojet language relied on by the General Counsel is dictum
and the further fact that Respondent has been able to
cite cases in which the Board has allowed unions to seek
arrearages for substantial periods prior to notification of
an employee of his obligations under a union-security
clause does not render the Aerojet-General doctrine inap-
plicable. This is so because the essence of a "minimum
standard" language in Aerojet is but a restatement of an
equitable or estoppel analysis which flows inevitably
from the very nature of a union 's fiduciary obligation to
employees in the application of a union -security clause.
In this sense the minimum standard involved in Aerojet
derives from a long line of Board cases viewing union se-
curity as a fiduciary matter. Thus it is not the Aerojet
dictum but the more general holding that a union holds a
fiduciary obligation to union-security obligors which
COMMUNICATIONS WORKERS LOCAL 9509 (PACIFIC BELL) 201
controls this case. This equitable doctrine requires the
facts of each case to be considered to determine the equi-
ties of applying a valid union-security clause in a manner
producing substantial arrearages.
b. The factors to consider
In the instant case, although Cochran was aware in
1985 of her unit accretion and the existence of a contrac-
tual union-security clause with a grandfather provision,
there is no evidence that during the course of the events
in question herein , she actively sought to evade a per-
ceived union -security obligation . Thus , beyond the mere
fact of her not contacting the Union , there is no evi-
dence of fraud or deceit by Cochran or that she attempt-
ed to conceal her employment status from the Union. I
find that Cochran had a sincere view, during all the
events in controversy herein, she was not in fact covered
by the union-security clause . As was discussed supra, I
have also found that Cochran had been sufficiently noti-
fied of the existence of the union -security clause and the
grandfather provisions so that she had a duty to inquire
regarding the applicability of the exemption provisions of
the grandfather clause to her transfer in 1985 . I find that
while Ms . Cochran was sincere in her belief that the
union-security clause did not apply to her, that she was
not necessarily reasonable in this belief: ( 1) because of
the clarity of the grandfather clause exemption rule
which states that those who enjoyed grandfather status
lost that status when they undertook an employee initiat-
ed permanent transfer , and (2) because of her failure to
inquire regarding her status either at the time of her
transfer or during the period thereafter when she was in
an office she knew, or should have known, was covered
by the union-security clause.
An additional factor to be considered in this equitable
analysis is the cause of the Union 's substantial delay in
seeking union-security payments from Ms . Cochran. On
the facts of this case I find that the system of reporting
between the Employer and Respondent concerning
union-security matters was not designed for the unusual
situation confronted regarding Cochran in 1985. There
was simply a failure of reporting and interpretation of
records. As a result, the Union's ignorance of Cochran's
status was not as a result of negligence or misdealing.
When large numbers of personnel are handled by auto-
mated processes, the occasional miscategorizing of odd
or unique situations is not unusual. I find such a circum-
stance pertained to Cochran's status vis-a-vis the union-
security reporting and interpreting procedures of the
Employer and the Union.
The reasonableness of a union 's efforts to satisfy ar-
rearages is also a factor to be considered in an equitable
analysis . Apparently Respondent was originally willing
to accept from Cochran a simple acknowledgement of
her union-security obligation coupled with the com-
mencement of prospective dues payments. When Ms.
Cochran was unavailing and asserted her immunity from
union-security obligations , Respondent proceeded, as was
its standard practice , with attempts to obtain all arrear-
ages and notified the Employer that unless those obliga-
tions were completely satisfied, Cochran should be termi-
nated. The settlement reached by Cochran and the
Union contained a payment schedule which allowed re-
duction of her arrearages over time , i.e., a payment plan
was accepted.
Finally, in considering the equitable doctrine as ap-
plied to union-security cases , it is useful to consider the
Board 's analysis of the congressional policy underlying
Section 8(b)(2) in this area . The Board has emphasized
that Section 8(b)(2) and its related Section 8(a)(3)(B) was
,.not to protect free riders against excessive union de-
mands, but rather to ensure that employees who were
willing to pay their financial obligations were not dis-
charged for improper reasons." Teamsters Local 630
(Ralph's Grocery), 209 NLRB 117, 125 fn. 19 (1974),
quoting Seafarers (Tomlinson Fleet), 149 NLRB- 1114,
1118-1121 (1964).
c. Balancing the equities
Balancing all these factors, I am convinced that it is
not improper for Respondent to apply the union-security
clause to Cochran retroactively to 1985. I make this find-
ing because of the absence of negligence by Respondent
in failing to notify Cochran sooner and because of the
clarity of the grandfather clause provisions as they ap-
plied to her . Cochran had no reasonable grounds to be-
lieve she could remain "grandfathered" after her transfer
to her new job or after her "retreat" to her original posi-
tion. The Union acted reasonably in my view when it
provided Ms. Cochran a payment schedule even though
it had earlier offered a compromise which waived all
back dues. I find, therefore, that the Union could proper-
ly seek all back dues to 1985.
Conclusion
I have found that the union-security clause applied to
Cochran at all times after her initial transfer in 1985, not-
withstanding her subsequent retreat . I have further found
that the Union was entitled under the circumstances of
this case to hold to Ms . Cochran to her dues obligations
after notifying her of that obligation in July 1987. Final-
ly, I have found that the Union was entitled , as discussed
above, to seek from Cochran union -security arrearages to
1985 notwithstanding the equitable arguments - made by
the General Counsel . Having made those findings it is
clear that Respondent was further entitled to assert to
both the Employer and to Cochran that a failure to pay.
her union -security arrearages would result in a request
for her discharge. The subsequent request for discharge
under these circumstances as well as the entry - into the
settlement regarding union -security arrearages were also
not improper . It follows, therefore , that Respondent has
at no time violated Section 8(b)(2) or Section (1)(A) of
the Act. The complaint , therefore, • will be dismissed in
its entirety.
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent at no time violated the National Labor
Relations Act as alleged in the complaint.
On these foregoing findings of fact and conclusions of
law and the entire record in this case, I issue the follow-
ing recommended9
ORDER
The complaint is dismissed in its entirety.
9 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.