Service Employees Local 535 (North Bay Center)

National Labor Relations Board - Board Decisions

Feb 19, 1988

287 N.L.R.B. 1223 (N.L.R.B. 1988)

SERVICE EMPLOYEES LOCAL 535 (NORTH BAY CENTER) 1223
Social Services Union , Local 535, Service Employees
International Union , AFL-CIO and North Bay
Development Disabilities Services , Inc., d/b/a
North Bay Regional Center . Case 20-CB-7122
Based on the entire record, on the oral arguments and
brief filed on behalf of the General Counsel, and on my
observation of the demeanor of the witness, I make the
following
19 February 1988
DECISION AND ORDER
.BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On 24 July 1987 Administrative Law Judge Wil-
liam J. Pannier III issued the attached decision.
The Charging Party filed exceptions, to which it
has appended the General Counsel's brief to the
administrative law judge, and the Respondent filed
a brief in opposition.
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 i and to adopt the recommended
Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' In adopting the judge's dismissal of the complaint, we agree with his
conclusion that the amount of agency fees is a nonmandatory subject of
bargaining and that it is not transformed into a mandatory subject by
virtue of the parties' agreement to bargain concerning it Inasmuch as the
duty to provide information is coextensive with the statutory duty to bar-
gain concerning mandatory subjects, we agree that the Respondent had
no duty to provide information requested here We therefore find it un-
necessary to pass on the additional reasons set forth by the judge for his
conclusion
Boren Chertovk, for the General Counsel
Stewart Weiberg (Van Bourg, Weinberg, Roger & Rosen-
feld), of San Francisco, California, for the Respondent
Darrell Eugene Bell, Esq. (Becker & Bell), of Placerville,
California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge I
heard this case in San Francisco, California, on 6 May
1987. On 5 March 1987 the Regional Director for
Region 20 of the National Relations Board (the Board)
issued a complaint and notice of hearing, based on an
unfair labor practice charge filed on 21 January 1987, al-
leging a violation of Section 8(b)(3) of the National
Labor Relations Act (the Act) 29 U.S.C. § 151 et seq
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine the
lone witness called to testify, and to file briefs
FINDINGS OF FACT
I. JURISDICTION
At all times material , North Bay Development Disabil-
ities Services , Inc., d/b/a North Bay Regional Center
(the Employer) has been a nonprofit California corpora-
tion, with offices and places of business in Napa , Solaro,
and Sonoma Counties in the State of California , and has
been engaged in providing and obtaining services for de-
velopmentally disabled persons In the course and con-
duct of those business operations during calendar year
1986, the Employer received funds in excess of $1 mil-
lion from the State of California that , in turn , is directly
engaged in interstate commerce Therefore , I conclude,
as admitted in the answer , that all times material, the
Employer has been an employer engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the
Act
ii THE LABOR ORGANIZATION INVOLVED
At all times material, Social Services Union, Local
535, Service Employees International Union, AFL-CIO
(Respondent ) has been a labor organization within the
meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICE
A. Issue
As presented in the complaint, this case involves no
more than an issue concerning the duty to supply infor-
mation that is requested to implement the terms of a col-
lective-bargaining contract But in his brief, counsel for
the General Counsel concedes that the contractual sub-
ject underlying the request is "the parties' agreement to
determine the amount of the agency fee," that is, the
amount that must be paid, in lieu of periodic dues and
initiation fees, by employees who choose not to become
members of Respondent, even though they desire to con-
tinue working for the Employer in the bargaining unit
represented by Respondent
As discussed more fully post, to violate the Act a re-
fusal to supply information must, inter alia, pertain to a
bargaining subject categorized as a mandatory one Par-
ties' agreements concerning subjects that are not manda-
tory cannot be enforced by the Board under the Act
Amounts of agency fees, like amounts of _ieriodic dues
and initiation fees established by labor organizations, are
not mandatory subjects of bargaining Therefore, I con-
clude that Respondent did not violate the Act when it
refused to provide information to implement "the parties'
agreement to determine the amount of the agency fee"
for the union-security provision of their contract
B Facts
On 6 October 1986,Respondent and the Employer exe-
cuted a collective-bargaining contract covering a unit of
287 NLRB No. 129
1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
professional and full- and part-time employees, i effective
"until terminated in its entirety at midnight of September
30, 1988, or until expiration of the Employer's principal
operating agreement with the State of California, which-
ever is earlier " For purposes of this proceeding, the sig-
nificant portion of that contract is article VI, subsection
A, which reads:
Agency Shop Each employee covered by this
Agreement who is hired after Septemebr 12, 1986
shall, as a condition of continued employment,
within thirty (30) days of first employment at the
Center, either (1) become and remain a member in
good standing of the Union, or (2) commence and
continue to make payments of an amount equal to
the Union's periodic dues and initiation fees to the
Union as a service fee for Union representation,
except such amount shall not exceed that amount as
outlined or required by the pertinent case law.
The parties agree to meet and develop language
to be included in this agreement concerning the
amount of Agency fee to be paid in lieu of Union
dues by persons in the unit who do not belong to
the Union The parties agree to be bound by the rel-
evant U S Supreme Court Decisions on the subject
Such discussions shall be held during the months of
November and December, 1986 and resolution shall
be attained by December 31, 1986 or the issue shall
be submitted to an arbitrator from a panel supplied
by the American Arbitration Association (AAA).
Minimal evidence was adduced concerning the bar-
gaining history that led to agreement on this provision.2
However, it is clear that the Employer was concerned
with confining the agency fee to more than an amount
needed by Respondent for purposes of collective bar-
gaining, contract administration, and grievance adjust-
ment That approach is not a novel one. Under the Rail-
way Labor Act and in the public employment sector, it
is possible for nonmembers to preclude expenditure for
moneys derived from their agency fees for items that are
not "necessary or reasonably incurred for the purpose of
performing the duties of an exclusive representative of
the employees in dealing with the employer on labor-
management issues " Ellis v. Railway Clerks, 466 U S
435, 448 (1984). See also Machinists v. Street, 367 U S.
740 (1961); and Abood v. Detroit Board of Education, 431
U S. 209 (1977)
No similar restriction exists for nonmembers employed
by employers subject to the Act. But the Supreme Court
recently granted certiorari in a case presenting that issue.
Communications Workers v. Beck, 107 S Ct. 2480 (1987).
However, the Employer's negotiator testified that re-
gardless of the conclusion ultimately reached by the
Court, negotiation of the agency fee amount was not
contingent exclusively on its decision in that or other
cases: "I still would see an obligation on behalf of the
parties to meet and to develop language to be included
in the agreement, that's the main thing." Nevertheless, he
did contemplate that whatever agency fee and amount
was negotiated would be pegged to Respondent's bar-
gaining-representative type expenditures. Thus, in a letter
dated 29 November 1986, he proposed that the agency
fee be set in an amount equal to 20 percent of Respond-
ent's periodic dues, explaining:
Admittedly, the above percentage (20%) is just an
estimate of the appropriate proportion of member-
ship dues which is alloted by Local 535 for direct
representational purposes . I am confident that
through a full disclosure of your revenues and ex-
penditures, we will jointly be able to identify the
correct percentage, if twenty percent proves incor-
rect
That same letter contained the request for information
that has led to the complaint-
If the above suggested langauge or percentage
amount is unacceptable, we request the following
data be provided as soon as possible-
1 A detailed breakdown of all revenues and ex-
penditures of Local 535 for the most recent period
and the previous three years.
2 A detailed breakdown of all revenues and ex-
penditures of the Service Employees International
Union for the most recent three fiscal years, and
3. Any other documents which you feel to be rel-
evant to the process of defining the appropriate
amount of the Agency fee to be paid by non-mem-
bers in the NBRC unit.
' The unit description , which the parties agree is appropriate, is
All professional employees of the employer, including physicans,
psychologists , nurse specialists , nutritionist and occupational thera-
pist, and full -time and regualr part-time employees of the Employer,
including Clients Rights Specialists, Community Resource Consult-
ants , Senior and nonsemor Client Program Coordinators, Fiscal As-
sistants , Office Assistants, Assessment Counselors, Revenue Coordi-
nator and CDER/Vendor Coordinator, excluding all other employ-
ees, confidential employees , managerial employees , accountant, tem-
porary employees, guards and supervisors as defined by the Act
2 The Employer' s negotiator agreed that, during negotiations, Re-
spondent had sought "a total Union shop" and the Employer had wanted
"an open shop " He further testified that " I don't really recall which one,
uh, first uh , raised the issue of uh , the elements that are currently in our
Article 6 , but there were some intermediate positions and I believe this
was a counter position offered by the Union," and that Respondent's ne-
gotiator had "suggested that we use in this particular case the Triple A
because they would have people who would have been given special
training in this area "
Respondent has flatly refused to provide that informa-
tion In his letter dated 8 January 1987, Respondent's
senior field representative stated:
We are currently in full compliance with relevant
U.S. Supreme Court decisions on this subject We
note that the U S Supreme Court has not reached
any relevant decisions on this subject which would
bind either of the parties to a collective agreement
covered by the Labor Mangement Relations Act, as
amended. Where the Court has considered similar
issues the employers and the employees were not
covered by the Act but rather were covered by
other legislation, e g., local public sector laws.
These decisions are neither relevant nor binding on
the parties here.
SERVICE EMPLOYEES LOCAL 535 (NORTH BAY CENTER) 1225
In the event that the Supreme Court decides on
the issue of agency shops under the Act, we will of
course comply with any relevant requirements out-
lined therein. We should note, however, that the de-
cisions reached by the Court in the public sector do
not require that the Union provide such financial in-
formation to an employer. The issue of what is an
appropriate service fee (in the public sector) is an
issue of discussion between the Union and the indi-
vidual employees who choose to pay service fees in
lieu of dues As we're sure you're aware, the Court
has outlined a procedure by which employees can
contest the service fee amount established by the
Union. This is not, therefore, an issue of appropriate
discussion between the Union and the Agency
The final link in the chain of this scenario was forged
on 19 January 1987 when the Employer's negotiator sent
a letter to the Regional Director of the American Arbi-
tration Association. Renewing the theme of an agency
fee amount pegged to Respondent's expenditures for
"direct representational purposes," the letter requested
"a panel of arbitrators" who would be "experienced with
Hudson, et al.-type cases."3
C. Analysis
As a general proposition, parties to collective bargain-
ing must disclose information, when requested, that
would enable other parties to meaningfully participate in
the bargaining process. "There can be no question of the
general obligation of an employer to provide information
that is needed by the bargaining representative for the
proper performance of its duties." NLRB v. Acme Indus-
trial Co, 385 U.S 432, 435-436 (1976). Similarly, the ob-
ligation imposed on the bargaining representative "paral-
lels [the] employer's duty to bargain collectively" with
the result that the bargaining representative is "likewise
obliged to furnish the employer with relevant informa-
tion " Detroit Newspaper Local 13 v. NLRB, 598 F 2d
267, 270-271 (D.C. Cir. 1979).
However, to say simply that information is needed for
bargaining, or to implement contractual provisions, does
not necessarily establish that the Act compels its produc-
tion . The obligation to provide information is not open-
ended and without limitation One such limitation arises
from the type of bargaining subject to which the request
for information pertains. When the request pertains to a
subject that is nonmandatory-one that does not involve
"wages, hours, and other terms and conditions of em-
ployment" within the meaning of Section 8(d) of the
Act NLRB v Borg-Warner Corp, 356 U S. 342, 348-349
(1958)-then neither employers nor labor organizations
are obliged under the Act to furnish "information re-
quested for bargianing on [that] subject." American Stores
3 Chicago Teachers Local I v Hudson, 106 S Ct 1066 (1986), posing the
question of whether the procedures adopted by the petitioner, in that
case, adequately protected the basic right enunciated in Abood V Detroit
Board of Education, supra
Packing Co, 277 NLRB 1656 (1986).4 For the "duty to
furnish . information stems from the underlying stat-
utory duty imposed on employers and unions to bargain
in good faith with respect to mandatory subjects of bar-
gaining " Cowles Communications, 172 NLRB 1909,
(1968).
Parties do not have the power to alter this result
merely by reaching agreement on the terms of a nonman-
datory subject. To permit them to do so would be to
allow them to, in effect, rewrite Section 8(d) of the Act
to expand its definition of the subjects that Congress
made mandatory Yet, "Congress determined that the
Board should not have general jurisdiction over all al-
leged violations of collective bargaining agreement"
NLRB v. C & C Plywood Corp, 385 US. 421, 427
(1967). "By once bargaining and agreeing to a permissive
subject, the parties, naturally, do not make the subject a
mandatory topic of future bargaining" Allied Chemical
Workers Local I v. Pittsburgh Plate Glass Co, 404 US
157, 187 (1971). As a result, it is not "an unfair labor
practice for [a party] unilaterally to make a change in a
permissive, nonmandatory subject of bargaining." Finger
Lakes Plumbing Co, 524 NLRB 1399 (198 1).5
Inasmuch as a statutory bargaining obligation cannot
be created merely because Respondent and the Employer
have agreed to bargain about a nonmandatory subject 6
the threshold issue in this case is whether the amount of
an agency fee is a mandatory subject of bargaining. Of
course, union security generally is a mandatory subject.
See, e g, NLRB v. Andrew Jergens Co., 175 F.2d 130, 133
(9th Cir. 1949), cert. denied 338 U S. 827 (1949). But that
does not open the door to bargaining about all compo-
nents and aspects of union security One policy explicitly
incorporated into the Act by Congress is avoidance of
"outside interference in union-decision making." NLRB
v. Financial Institution Employees Local 1182, 471 U S.
1098 (1986) Thus, the proviso to Section 8(b)(1)(A) of
the Act protects "the right of a labor organization to
prescribe its own rules with respect to the acquisition or
retention of membership therein " As a result, internal af-
fairs of labor organizations are not "an aspect of the rela-
tionship between the 'employer and the employees,"
Allied Chemical Workers v. Pittsburgh Plate Glass, supra,
but rather, by statutory definition are encompassed by
the relationship between labor organizations and employ-
ees. It follows that subjects embraced by the internal af-
° Accord UOP Inc, 272 NLRB 999, 1069, 1070 (1984), Seafarers Local
777 v NLRB, 603 F 2d 862, 888 fn 69 (D C Cir 1978), NLRB v Gibral-
tar Industries, 653 F 2d 1091, 1097 (6th Cir 1981)
5 Of course, the fact that such agreements cannot be enforced by the
Board under the Act does not leave parties free to change, not to disre-
gard altogether, their contractual commitments concerning nonmanda-
tory bargaining subjects "The remedy for a unilateral mid-term modifica-
tion to a permissive term lies in an action for breach of contract not
in an unfair-labor-practice proceeding " Ibid , 404 U S at 188
6 "[A] permissive subject of bargaining [does not] become mandatory
[merely because] it [is] presented together with a mandatory subject,"
Borden, Inc, 279 NLRB 396, 399 (1986), and there has been no independ-
ent showing that the amount of the agency fee is "so intertwined with
and inseparable from the mandatory terms and conditions for [Respond-
ent's and the Employer's] contract," Sea Bay Manor Home for Adults, 253
NLRB 739, 740 (1980), enfd 685 F 3d 425 (2d Cir 1982), that it has
taken on the characteristics of a mandatory subject
1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fairs proviso are not mandatory ones "Mandatory sub-
jects of bargaining concern relations between the em-
ployer and the employees, not between the union and the
employees " 1 C. Morris, The Developing Labor Law 858
(3d ed 1983)
One subject specifically regarded by Congress as and
internal affair of labor organizatiops is that of the amount
of fees established and assessed on employees. Congress
ultimately rejected a House-passed "proposal that would
have regulated union procedures for assessing dues,"
NLRB v. Financial Institution Employees, supra, fn. 11,
because, "Senate conferees . felt that it was unwise to
authorize [the Board] to undertake such elaborate polic-
ing of the internal affairs of unions." 93 Cong.Rec. 6601
(1947), 2 Leg. Hist 1540 Consistent with that Congres-
sional determination, the Board has held that because of
the internal affairs proviso to Section 8(b)(1)(A) of the
Act, fees imposed by labor organizations "are subject to
the scrutiny of the Board only in limited situations "
Metal Workers' Alliance, 172 NLRB 815-816 (1968) Con-
sequently, as a basic proposition, fees imposed by labor
organizations are part of their internal relations with em-
ployees and, concomitantly, are neither an aspect of the
employer-employee relationship nor a mandatory subject
of bargaining
As the Board pointed out in Metal Workers' Alliance,
there are limited situations where the internal affairs pro-
viso would not shield Board scrutiny of fees imposed by
labor organizations. Basically, labor organizations' inter-
nal regulations are subject to Board scrutiny whenever
their enforcement affects employment status NLRB v.
Allis-Chalmers Mfg. Co., 388 U.S. 175, 195 (1967) But in
the area of fees assessed by labor organizations, that
scrutiny is restricted to situations where amounts im-
posed are not truly "periodic dues and initiation fees" or
are not "uniformly required," within the meanning of the
second proviso to Section 8(a)(3) of the Act or, in addi-
tion, are "excessive or discriminatory" within the mean-
ing of Section 8(b)(5) of the Act. Ibid, Ferro Stamping
Co, 93 NLRB 1459, 1464 (1951), Carpenters District
Council (Associated Builders), 145 NLRB 1775, 1776
(1964)
It follows that if a labor organization proposes a
union-security clause that contravenes one of those pro-
scriptions, then the obvious illegality, and its implications
for the continued employment of noncomplying employ-
ees, might well entitle, indeed oblige, the employer to
bargain about it to the extent of seeking to remove the
illegal feature(s) However, there is no contention here
that Respondent has made any agency fee proposal that
violates Section 8(a)(3)'s second proviso nor that violates
the "excessive or discriminatory" prohibition of Section
8(b)(5) of the Act.
It might be argued-and such an argument is implied
in the Employer's presentation at the hearing-that bar-
gaining is mandated to ensure that amounts of agency
fees do not exceed the costs of collective bargaining,
contract administration, and grievance adjustment Such
an argument is predicated on the above-described Rail-
way Labor Act and public sector employment restriction
on expenditure of agency fees, seeking to extend it to
union-security clauses negotiated under the Act But al-
though the Supreme Court has granted certiorari in
Beck, it has not yet decided to similarly restrict expendi-
tures of agency fees collected from nonmembers em-
ployed by employers subject to the Act Nor in any
other case has the Court imposed restrictions on expendi-
tures of agency fees collected pursuant to union-security
clauses governed by the Act. Neither has the Board
done so. To the contrary, it stated in Typographical Union
(Detroit Newspaper), 192 NLRB 951, 952 (1971)•
Neither on its face nor in the congressional purpose
behind [the second proviso to Section 8(a)(3) of the
Act] can any warrant be found for making any dis-
tinction here between dues which may be allocated
for collective-bargaining purposes and those ear-
marked for institutional expenses of the union
More specifically, in the brief for the United States as
amicus curiae filed in Beck, a majority of the Board spe-
cifically endorsed the argument that it is not an unfair
labor practice for labor organizations to spend non-
members' agency fees for purposes other than collective
bargaining, contract administration, and grievance adjust-
ment.7
Even were the Court to adopt Respondents' arguments
in Beck, and to restrict amounts of agency fees in the
fashion existing under the Railway Labor Act and in the
public employment sector, that would not necessarily
elevate that aspect of agency fees to mandatory bargain-
ing status To the contrary, several factors warrant the
conclusion that it should remain a nonmandatory one,
exlcuded from the bargaining process
First, in reaching the results that it did in Street and in
Abood, the court never adopted a per se restriction.
Under the Railway Labor Act and in the public employ-
ment sector, the restriction on agency fee expenditures
arises only for nonmembers who dissent from, or who
object to, expenditure of their fees for purposes other
than collective bargaining, contract administration, and
grievance adjustment Railway Clerks v. Allen, 373 U.S.
113, 118 (1963), Ellis v. Railway Clerks, supra, 466 U S. at
445. "Any remedies . would properly be granted only
to employees who have made known to the union offi-
cials that they do not desire their funds to be used for
political causes to which they object." Machinists v.
Street, supra, 357 U S at 774 Consequently, the right to
veto other expenditures is not a unitwide one, but rather
one that rests with each employee on an individual basis
Within each bargaining unit some employes may choose
to exercise their veto and some may not choose to do so.
To subject the matter to the all or nothing result of bar-
gaining would deprive individual employees of their
7 I am as bound by this position as I would be if the Board's view had
been expressed in a decision resulting from a proceeding conducted under
Sec 10 of the Act The general purposes of any system of jurisprudence
would hardly be promoted if administrative agencies were free to ad-
vance one side of a proposition to the highest tribunal although preserv-
ing the option to simultaneously reach the contrary result in its own pro-
ceedings In practice, the Supreme Court has relied on propositions of
statutory interpretation and policy expressed to it by the Board and its
representatives, both in briefs, see, e g , Retail Clerks Local 1265 v Scher-
merhorn, 373 US 746, 755-756 (1963), and in oral argument See, e g ,
NLRB v Gissel Packing Co, 395 U S 575, 594 (1969)
SERVICE EMPLOYEES LOCAL 535 (NORTH BAY CENTER) 1227
right to make that choice. "[D]issent is not to be pre-
sumed-it must affimatively be made known to the union
by the dissenting employee." Id
Concomitantly, to allow such a choice to be made as
part of the bargaining process would, in effect, create a
representative function for employers. Yet, industrial
peace is not fostered by permitting employers to advance
employee rights. Brooks v. NLRB, 348 US 96, 103
(1954) Moreover, as there has been no showing that
even a single bargaining unit nonmember has requested
the Employer to negotiate a reduction in the agency fee,
the Employer is attempting to "act[] as vicarious champi-
on of its employees[,] a role no one has asked it to
assume," NLRB v. Tahoe Nugget, Inc., 584 F 2d 293, 301
(9th Cir. 1978), cert. denied 442 US 921 (1979), and a
role that the Act does not contemplate being played by
the employers
Third, to introduce this subject into the bargaining
process would yield multiple results in an area that ne-
cessitates uniformity. Good-faith difference can exist con-
cerning whether particular expenditures do or do not
serve the the purposes of collective bargaining, contract
administration, and grievance adjustment. That is amply
illustrated, for example, by the disagreement over con-
vention expenditures that occurred in Ellis v. Railway
Clerks, supra, 466 U S at 448-449, 458-460 The relative
strengths of parties to negotiations will determine, at
least to some extent, their ability to extract concessions.
As a result, it is not conceivable that the same expendi-
tures may be included as a bargaining-related expense in
some negotiated agency fees although simultaneously
being excluded from calculation of agency fees in other
contracts. Yet, the Court's decisions in this area do not
contemplate a roving standard. Identical expenditures
must be treated uniformly. The give and tkae of the bar-
gaining process is simply not susceptible to achieving the
singularity of approach that is needed.
Finally, as a practical matter, it would be futile to
submit to bargaining determinations regarding the proper
proportions of members' dues, or dollars and cents
amounts of agency fees, that are to be applied to collec-
tive bargaining, contract administration, and grievance
adjustment purposes. Of necessity, those proportions or
amounts would be based on expenditures made by labor
orgnaizations during periods prior to the effective dates
of contracts The negotiated proportions or amounts
would then be locked into contracts which, as a matter
of Federal labor policy, are encouraged to last for 3-year
terms. See General Cable Corp., 139 NLRB 1123 (1962).
But, like other institutions , expenditures of labor organ-
ziations will vary over time. As a result, nonmembers
likely will be obliged to pay, and labor organizations
obliged to accept, agency fee amounts only remotely tai-
lored to actual expenditures, particularly as contracts
wend toward their termination dates. It would hardly
minimize the impact of labor instability on interstate
commerce to insist on periodic reopening of contracts to
correct the problem, seeking to readjust agency fee
amounts in light of more recent actual expenditures At
the same time, it hardly protects the rights of employees
to compel them to continue observing agency fee
amounts governed by the dead hand of stale expendi-
tures.
In sum , the bargaining process is too broad and cum-
bersome a vehicle to ensure that nonmembers' agency
fee amounts do not exceed the purposes of collective
bargaining, contract administration, and grievance adjust-
ment , even assuming that the Supreme Court grants to
employees of employers subject to the Act the same veto
on agency fees that applies under the Railway Labor Act
and in the public employment sector During the hear-
ing, concern was voiced regarding the potential backpay
liability of an employer who discharged a nonmember
for failing to satisfy that portion of a contractually re-
quired agency fee exceeding the amount devoted to col-
lective bargaining , contract administration, and grievance
adjustment. However, that concern arises any time that
an employee's discharge is sought for noncompliance
with union-security requirements. Yet, employer liability
is confined to situations where the employer has "reason-
able grounds for believing" that the request is not a
lawful one See, e.g., Valley Cabinet & Mfg., 253 NLRB
98, 99 (1980), enfd. mem. 691 F.2d 509 (9th Cir 1982),
and cases cited herein. Here, assuming the applicability
of Street and Abood, an employer confronted with a
demand to discharge a nonmember for nonpayment of an
agency fee would not violate the Act unless it had "rea-
sonable grounds for believing" that the nonmember had
voiced the required objection to paying an amount ex-
ceeding representation costs and, further, that the non-
member's discharge was being sought for failure to pay
that excess amount.
Therefore, I conclude that a preponderance of the evi-
dence fails to establish that Social Services Union, Local
535, Service Employees International Union, AFL-CIO
has refused to provide any information needed to imple-
ment an agreement concerning a mandatory subject of
bargaining and, accordingly, it has not violated the Act
in any manner alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed8
ORDER
The complaint is dismissed in its entirety.
6 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