Petition for Writ of Certiorari — North Bay Development Disabilities Services, Inc. v. National Labor Relations Board
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JOSEPH F. BPANIOL, JR.
CLERK
No. 8 o.. enen,
IN THE
Supreme Court of the United States
OCTOBER TERM, 1990
NORTH BAY DEVELOPMENT DISABILITIES
SERVICES, INC., D/B/A NORTH BAY
REGIONAL CENTER,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
MICHAEL E. AVAKIAN*
CENTER ON NATIONAL
LABOR POLICY, INC.
5211 Port Royal Road, Suite 103
North Springfield, VA 22151
(703) 321-9180
Attorney for Petitioner
*Counsel of Record
ot.
QUESTIONS PRESENTED
1. Whether the amount of the agency fee to be paid by
non-union workers under union security agreements
negotiated under § 8(a)(3) of the Act, is a mandatory
subject of bargaining under this Court’s decision in
Communications Workers of America v. Beck, for which
information must be provided in the bargaining process.
2. Whether the court of appeals correctly concluded that
the union did not violate § 8(b)(3) of the Act by
refusing to furnish information to the employer
concerning the agency shop fee it had agreed to furnish
in negotiations, and required under express contractual
language, when that information is essential for the em-
ployer to participate effectively in contract negotiations
and arbitration conducted under the agreement to set
the agency fee.!
INorth Bay Development Disabilities Services, Inc., is a non-profit corpora-
tion. It has no parent companies or subsidiaries.
+ *
TABLE OF CONTENTS
Page
CHEST IOS PIRES e Ee) on 6 oe cer dwe cee tinenes i
py 8 Es gee oy) eee ii
py EF De @ lis) 6 yy _ Serer ara iv
CP TY eae Wk 6 wo cca wsrpnsnnweseees 1
ls ls ee ke ee ee 2
pe yore: 2 os By ey re re i 2
STATEMENT OF THE CASE 2... wccccccccccccceces 3
—_ 8 PT ee eee TeRLETer eae s 3
B. Summary of the Opinions Below ................ 6
REASONS FOR GRANTING THE WRIT ...........-. 8
The Writ Should Be Granted to
Settle the Conflict between the
Circuit Court's Conclusion Here
That the Amount of the Agency
Fee Is Not Subsumed As Part of the
Mandatory Bargaining Subject of
Union Dues and Agency Fees Under
Section 8(a)(3) of the Act and This
Court's Conclusion in Beck That the
Statute Prohibits "Collection" of
Agency Fees in Amounts in Excess
of Germane Bargaining Unit
CN oar ek chee cis cesesenccseesancens 8
ee eee oe on
ee ee
- iii -
A. By Negotiating An Agency Fee
Check-Off Under the Auspices
of Section 8(a)(3) of the Act,
the Union Voluntarily Implicates
the Employer in its Statutory
Bargaining Obligation and Takes
the Employer Into A Limited
Relationship the Union Might
Otherwise Have Had Only With
EE 9
B. The Duty of the Union to Supply
Information to the Employer is
Coextensive With the Duties Set
Out in Section 8(d) of the Act
or Established By Contract ................ 19
EE IE ar a 26
APPENDIX:
1. Decision of the United States Court
of Appeals for the District of
SE |
2. Decision and Order of the National
Labor Relations Board ..................... 8a
3. Decision of the Administrative
EGE ee 10a
4. Order of the National Labor
En ee eg 26a
5. Order Denying Request for Stay
and Motion for Reconsideration
of the National Labor Relations
SEE SE eee 27a
-iv-
TABLE OF AUTHORITIES
CASES
ASARCO, Inc., Tennessee Mines Division v. NLR’
805 F.2d 194 (6th Cir. 1986) ............
Breininger v. Sheet Metal Wokers Internationai,
me ERS aa
Chemical & Alkali Workers v. Pittsburgh
Plate Glass Co.,
EE EER
Communications Workers of America v. Beck,
We GRU PU CRUD 6 occ cca c ccc cecenss
Detroit Edison Co. v. NLRB,
440 U.S. 301, 99 S. Ct. 1123,
~ Sm © FT), ee
Ferens v. John Deere Co.,
ee
Fibreboard Corp. v. NLRB,
SUP MN TI oo ks akdsdse cease es
First National Maint. Corp. v. NLRB,
ee eee
Ford Motor Co. v. NLRB,
441 U.S. 488 (1979) .. 0.0... e cece ee eee vo
H.K. Porter v. NLRB,
I, in ccccnnacdsneaccnssd
-V-
TABLE OF AUTHORITIES - CONTINUED
Humphrey v. Moore,
dade sbi nn sadhana ocees 6eane
Jordon v. City of Bucyrus, Ohio,
739 F. Supp. 1124 (N.D. Ohio 1990) .............
Local 13, Detroit Newspaper Printing & Graphic
Communications Union v. NLRB,
oe te ok a
Mitchell v. Los Angeles Unified
School District, 739 F. Supp.
a
NLRB v. Acme Indus. Co..,
EN on ob n6'n obs can ncnéa¥terncnc
NLRB v. American Nat'l Ins. Co..,
ee sk cc ccaeeckecesccucne
NLRB v. Borg-Warner Corp.,
aa on nd oases a eae duckie
NLRB v. General Motors,
ed caw kabaedban ween n
NLRB v. Insurance Agents' Union,
ee Ne a8 ink vic ok boc cases cucun
Oil, Chemical & Atomic Workers v. NLRB.
TAG Wie Ss Ge BD viv nese nvccscasacs
Seay v. McDonnell Douglas Corp.,
S27 F.2e Sow Come CR. TOF) nw. wee cncnccn
-Vi-
TABLE OF AUTHORITIES - CONTINUED
Page
Scofield v. NLRB, ,
394 U.S. 423 (1969) 0... cee cece ween ee eens 10, 12
Shearson v. McMahon,
482 U.S. at 268 (1986) .. 0... ccc cece ee eee 23
Teamsters, Local No. 391 v. Terry,
190 S. Cr. USSD CTBBG) 2. rc cecccccccccecscsecvnns 12
U.O.P. Norplex, Division of Universal
Oil Product Co. v. NLRB,
445 F.2d 155 (7th Cir. 1971) .... 2... eee eee eee eee 10
STATUTES
National Labor Relations Act,
y Bis og )h () Rene passim
I os chase cnssthendsanhen 12
No. 90-
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1990
NORTH EBAY DEVELOPMENT DISABILITIES
SERVICES, INC., D/B/A NORTH BAY
REGIONAL CENTER, Petitioner,
Vv.
NATIONAL LABOR RELATIONS BOARD, Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DiSTRICT OF COLUMBIA CIRCUIT
North Bay Developmental Disabilities Services, Inc., d/b/a/
North Bay Regional Center (“North Bay”), the charging party
before the National Labor Relations Board (“Board”), respectful-
ly prays that a writ of certiorari issue to review the decision and
order of the United States Court of Appeals for the District of
Columbia Circuit which enforced the Board’s decision in the
above-styled case.
OPINIONS BELOW
The opinion of the Court of Appeals is reported at 905 F.2d
476 (D.C. Cir. 1990). The decision of the National Labor
Relations Board is reported at 287 N.L.R.B. No. 1223, 127
L.R.R.M. (BNA) 1184 (1988). Both decisions are reprinted in
ets
the attached appendix at pages la and 8a, respectively. Two
unreported orders of the Board are reprinted at pages 26a and
27a. The decision of the administrative law judge is reprir J at
page 10a.
JURISDICTION
The judgment of the Court of Appeals was entered June
15, 1990. An application for extension of time to file this -tition
for writ of certiorari was granted by Chief Justice WV iam H.
Rehnquist on August 30, 1990, to and including Octot 5, 1990.
(No. A-163). This Court has jurisdiction to review’ = .dgment
of the District of Columbia Circuit under 28 U.S.C 254(1).
STATUTES INVOLVED
Section 8(a) of the National Labor Relations Act, 29 U.S.C.
§ 158(a), provides in relevant part:
(a) It shall be an unfair labor practice for an employer--
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment to
encourage or discourage membership in any labor
organization: Provided, That nothing in this subchapter,
or in any other statute of the United States, shall
preclude an employer from making an agreement with
a labor organization...to require as a condition of
employment membership therein on or after the thirti-
eth day following the beginning of such employment,
whichever is the later....
Section 8(b) of the National Labor Relations Act, 29 U.S.C.
§ 158(b), provides in relevant part:
lsa”references in this Petition are to the accompanying appendix. “J.A."ref-
erences are to the separately printed Joint Appendix filed in the court below.
wn aey,
«%-
(b) It shall be an unfair labor practice for a labor organiza-
tion or its agents-
(3) to refuse to bargain collectively with an employer,
provided it is the representative of his employees
subject to the provisions of section 159(a) of this title...
Section 8(d) of the National Labor Relations Act, 29 U.S.C.
§ 158(d), provides:
For the purposes of this section, to bargain collectively
is the performance of the mutual obligation of the
employer and the representative of the employees to
meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions
of employment, or the negotiation of an agreement, or
any question arising thereunder, and the execution of a
written contract incorporating any agreement reached if
requested by either party, but such obligation does not
compel either party to agree to a proposal or require
the making of a concession.
STATEMENT OF THE CASE
A. Statement of Facts
North Bay is a non-profit California corporation which
provides and obtains services for developmentally disabled
persons. Its principal offices are in Napa, Solano and Sonoma
Counties, California. 11a. It employs approximately one-hundred
office, professional, and social workers. These workers are
represented by the Social Services Union, Local 535, Service
Employees International Union, AFL-CIO, (“Local 535” or
“union”).
The collective-bargaining agreement relative to this proceed-
ing was entered into on October 6, 1986, and was effective
through September 30, 1988. i2a. Article VI, Subsection A of
the agreement provided that the employees covered by the
-4-
agreement would be subject to an agency shop, and that those
persons not becoming members of the union would be required
to pay a service fee in an amount not to “exceed that amount
outlined or required by pertinent case law” and the parties agreed
to meet to set the amount to be paid:
Agency Shop. Each employee covered by this Agree-
ment who is hired after Septembez 12, 1986 shall, as a
condition of continued employment, within thirty (30)
days of first employment at the Center, cither 1)
become and remain a member in good standing of the
Union, or, 2) commence and continue to make pay-
ment(s) 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 relevant U.S. Supreme Court
Decisions on the subject. Such discussion 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).
12-13a (emphasis added).
On November 29, 1987, the employer’s bargaining represen-
tative wrote the business agent for Local 535, and suggested that
the non-union agency fee payers be compelled to contribute only
20% of full union dues per the agreement. 14a; J.A. 183. He
also requested that if the “above suggested language or percent-
age amount is unacceptable,” that the union provide the employ-
er with disclosure of revenues and expenditures through which
SOE nh Hw nee
os
“we will jointly be able to identify the correct percentage, if
twenty percent proves incorrect.” 14a; J.A. 184.
In order to prepare for negotiations and to “bargain effec-
tively,” J.A. 45, North Bay requested the following information
from the union to the extent “available in a CPA-audited format
and grouped by category of expenditure [if] that format would be
preferable,” or in whatever form the union chose to supply, J.A.
60:
1. A detailed breakdown of all revenues and expenditures
of Local 535 for the most recent period and the previous
three years.
2. A detailed breakdown of all revenues and expenditures
of the Service Employees Internationai Union for the most
recent three fiscal years, and
3. Any other documents which you feel to be relevant to
the process of defining the appropriate amount for the
Agency fee to be paid by nonmembers in the NBRC unit.
15a; J.A. 184.
In a letter to North Bay dated January 8, 1987, the union
explained that it was their position that,
we are in full compliance with relevant U.S. Supreme
Court decisions....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....Regarding your
request for financial data (made in your letter of
November 29, 1986), we will reiterate that NBRC
management does not have a right to such data and we
decline to provide such.
15a; J.A. 186.
- 2
Since Article VI, Section A, of the collective bargaining
agreement required that the parties “meet and confer” to
“develop language to be included in this agreement” and
“resolution shall be attained by December 31, 1986 or the issue
shall be submitted to an arbitrator,” North Bay invoked the
arbitration clause of the agreement. J.A. 46, 187.
The arbitrator subsequently ruled that the agency fee should
be set at 100% of union dues.
B. Summary of the Opinions Below
On January 21, 1987 and February 12, 1987, petitioner North
Bay, filed unfair labor practice charges with the National Labor
Relations Board, Region 20, alleging that Local 535 had commit-
ted an unfair labor practice during the course of their collective
bargaining agreement by refusing to negotiate with and supply
information to North Bay as required by the agreement, and also
for refusing to supply information to North Bay in preparation
for binding arbitration. J.A. 20.
The General Counsel of the Board issued a Complaint
against the union on March 5, 1987, alleging violation of the duty
to supply information necessary and relevant to negotiation and
arbitration of the parties’ collective bargaining agreement. J.A.
23.
2The General Counse!’s Complaint alleged:
“8(b). The information requested by North Bay, as described above in
subparagraph 8(a), is necessary for and relevant to matters encompassed
within the duty to bargain and related arbitration matters.
9. Since on or about December 12, 1986, respondent has failed and
refused, and is failing and refusing to furnish North Bay the information
requested by it as described in paragraph 8.
10. By the conduct described above in paragraph 9, Respondent has
failed and refused, anc is failing and refusing to bargain collectively with an
ear arctan OO ERE ON A TE oY sli tet Fee eM
2
A hearing on the Complaint was held before an Administra-
tive Law Judge (“ALJ”). On July 24, 1987, the ALJ determined
that none of the charges alleged in the complaint had merit and
that information sought by North Bay was unrelated to a
mandatory subject of bargaining. He therefore concluded that
Local 535 had not violated section 8(b)(3) of the Act.
The Board, ruling on the exceptions to the ALJ’s Decision
filed by North Bay, summarily ag-eed with but only a single
conclusion of the ALJ, 9a,
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 bargain concerning mandatory subjects, we agree
that the Respondent had no duty to provide information
requested here. We therefore find it unnecessary to
pass on the additional reasons set forth by the judge for
his conclusion.
The Board therefore declared that Local 535 had not failed
to negotiate with the North Bay over the matter of agency shop
fees.
On a petition for review of the Board’s Decision and Order,
the court of appeals determined that the Board’s analysis was
defensible” under its authority to construe the Act,
3a, concluding that the amount of the agency fee was akin to an
internal union matter that is “shielded from Board regulation by
§ 8(b)(1)(A)” and therefore the amount of the fee is not a
mandatory subject of bargaining to which an employer need not
be cautious to conclude, despite a potential for liability under
employer, and Respondent thereby has been engaging in unfair labor
practices within the meaning of Section 8(b)(3) of the Act.”
-8-
§ 8(a)(3) for exacting too much dues under Communications
Workers of America v. Beck, 487 U.S. 735 (1988). 6a. Further-
more, the court of appeals concluded that the parties’ contrac’ :al
obligation did not implicate a trend of industrial practice u +r
which the matter had turned or could turn into a manc— sy
subject of bargaining. 7a.
REASONS FOR GRANTING THE WRIT
THE WRIT SHOULD BE GRANTED TO SETTLE THE
CONFLICT BETWEEN THE CIRCUIT COURT’S CONCLU-
SION HERE THAT THE AMOUNT OF THE AGENCY FEE IS
NOT SUBSUMED AS PART OF THE MANDATORY BAR-
GAINING SUBJECT OF UNION DUES AND AGENCY FEES
UNDER SECTION 8(a)(3) OF THE ACT AND THIS COURT'S
CONCLUSION IN BECK THAT THE STATUTE PROHIBITS
“COLLECTION” OF AGENCY FEES IN AMOUNTS IN
EXCESS OF GERMANE BARGAINING UNIT EXPENSES
The decision below conflicts with the decision issued by this
Court concerning the limitations on union dues placed by
Congress in the National Labor Relations Act (“NLRA”). In
Communications Workers of America v. Beck, 487 U.S. 735, 108
S. Ct. 2641 (1988), the Court concluded that the union’s collec-
tion of agency fees for purposes unrelated to collective bargaining
expenses was a violation of section 8(a)(3) of the Act and was
also a violation of the union’s duty of fair representation. The
decision below artificially assigns § 8(a)(3) liability to the union
only, in agency fee cases, by disregarding the fact that $ 8(a)(3)
is an employer unfair labor practice that should equally apply to
employers “as permitting the collection and use of only those fees
germane to collective bargaining.” Beck, 108 S. Ct. at 2652 n.8
(emphasis added). The court below also reads out of the statute
the Beck conclusion that “[i]t simply does not follow from this
that Congress left unions free to exact dues equivalents from
nonmembers in any amount they please, no matter how unrelated
thos: fees may be to collective bargaining.” 108 S. Ct. at 2655
(emphasis added).
Ae
Unless review is granted in this case, this issue will never be
presented again to the Board through an unfair labor practice
complaint filed by the Board’s General Counsel. Neither will
there be the opportunity for this Court to reconsider this
question. Writing out of § 8(a)(3) the employer’s responsibility
to consider the amount of dues to be “exacted” from its workers,
leaves employer’s entirely unprotected from hybrid breach of con-
tract/duty of fair representation lawsuits by these workers. For
these reasons, the decision below poses a grave threat to
employers who seek to comply with the law and protect them-
selves from potential liability in these burgeoning number of
agency fee lawsuits.
I. BY NEGOTIATING AN AGENCY FEE AND
CHECK-OFF UNDER THE AUSPICES OF SEC-
TION 8(a)(3) OF THE ACT, THE UNION VOL-
UNTARILY IMPLICATES THE EMPLOYER IN
ITS STATUTORY BARGAINING OBLIGATION
AND TAKES THE EMPLOYER INTO A LIMIT-
RELATIONSHIP THE UNION MIGHT
OTHERWISE HAVE HAD ONLY WITH THE
EMPLOYEES
The court of appeal’s acceptance of the Board’s limited
showing that the amount of an agency fee involves solely a union-
employee relationship, which is outside the mandatory subject of
bargaining, sidesteps the entire issue in this case, viz., that North
Bay has made a relevant request for information. However, to
the extent that the Board and the court below do address the
subject of agency fees, their cases support other propositions
clearly not transferable to the matters here pertaining, and ignore
‘ North Bay’s argument that the law is otherwise as stated by this
Court in Communications Workers of America v. Beck, 487 U.S.
735, 108 S. Ct. 2641 (1988); NLRB v. General Motors, 373 U.S.
- 10-
734 (1963),° and the explicit language by the Ninth Circuit in
Seay v. McDonnell Douglas Corp., 427 F.2d 996 (9th Cir. 1970),
that collection of only germane expenses is an implied term of
every agency fee contract negotiated by employers and labor
organizations.
The fault with the court of appeal’s analysis stems from the
cases referred to by the court which suggest that an employer
cannot insist in contract negotiations, in certain instances
involving formal union members, that the union bargain concern-
ing its members’ rights, which arise contractually between the
union and the member: NLRB v. Borg-Wamer Corp., 356 U.S.
342, 349 (1958)(employer unlawfully insisted that the contract be
submitted to employee vote, but “would be enforceable if agreed
to by the unions”); U.O.P. Norplex, Div. of Universal Oil Prod. Co.
v. NLRB, 445 F.2d 155 (7th Cir. 1971)(employer may not insist
to impasse on union’s withdrawal of fines imposed on members
who crossed picket line). These cases are inapposite, because the
proper comparison in these cases must be between the union and
nonmembers.*
31n NLRB v. General Motors, 373 U.S. at 742, the Court explained that “[iJt
is permissible to condition employment upon membership, but membership,
insofar as it has significance to employment rights, may in turn be conditioned
Only upon payment of fees and dues. ‘Membership’ as a condition of employment
is whittled down to its financial core.”
“In U.O.P. Norplex, the Seventit Circuit explained the effect of the Court’s
decision in Scofield v. NLRB, 394 U.S. 423 (1969). In Scofield, the union rule
established fines for exceeding a union production ceiling. Although nominally
an internal union rule, the Court found it “was intended to have an impact
beyond the confines of the union organization,” 394 U.S. at 431, and therefore
might become a mandatory subject of bargaining. “If all union rules were non-
mandatory bargaining items, the union could avoid its obligation to bargain by
merely incorporating into a union rule the area concerning which it does not wish
to bargain.” 445 F.2d at 159 n.i0. Of course, the union security provision
bargained by the union and Petitioner North Bay is not an internal union rule
independently binding upon non-union employees, for the provision does not
stand as contractual right of obligation entered into between the union and these
2 ey eres bed ds
~
The decision in NLRB v. American Nat'l Ins. Co., 343 U.S.
395 (1952), demonstrates that the court of appeals’ rigid under-
standing of collective bargaining in this circumstance is wrong. In
that case, this Court established that the Board cannot sit in
judgment of specifically agreed to terms of a contract or compel
one party to concede a point or one party to accept a bargaining
proposal only as the Board might deem fit. The Board and the
court below appear to suggest that collective bargaining as to the
amount of agency fees is unlawful, in much the same way as the
Board tried to deny to the employer the ability to obtain a
management functions clause in American Nat'l Ins. Co., even
under circumstances where: “[bjargaining for more flexible
sens Gait diacadiamedeaaecaabamacin meen
though the result may be contrary to eernee olan
ing practice in the industry.” 343 U.S. at asd
Court ruled that the “Congress provided expressly that the Board
should not pass upon the desirability of the substantive terms of
labor agreements.” 343 U.S. at 408-09. If the parties agree to
flexible treatment of such matters, “the extent of union and
management participation in the administration of such matters
is itself a condition of employment to be settled by bargaining.” Jd.
at 409 (emphasis added).
The court below, then, fundamentally misconstrues the
setting in which a matter may become a term or condition of
employment, especially when the employer and union have
themselves bargained over a specific matter.” The right to
nonmember empioyees. To so limit the proviso to § 8(b)(1)(A), as the court of
appeals did, 4a, completely writes Beck out of the statute, effectively reinstating
* the Board’s losing position in Beck, as the prevailing rule of law. See also, note
22, page 23, infra.
5To the extent the court below also implies that the issue of the amount of
dues is an internal union matter, 5a, the Board made no distinction between dues
which the union might assess on individual union members via their membership
agreements and the payment of an agency fee for nonmembers which might only
be established by the independent contract with the employer and could not be
independently obtained by a union”s private siate court suii against the
222.
bargain for any such payment of dues to unions from the
employer’s funds, out of employee wages, is permitted only in
conformity with § 302(c)(4), 29 U.S.C. § 186(c)(4), which states:
It shall be unlawful for any employer...to pay...any
money or other thing of value- (1) to any representative
of any of his employees who are employed in an indus-
try affecting commerce
(c) Exceptions. The provisions of this section shall not
be applicable...(4) with respect to money deducted from
the wages of employees in payment of membership dues
in a labor organization
Clearly, the statute itself shows that dues payments come
from the wages of the workers and “wages” are specifically a
covered topic in § 8(d)’s statutory requirement for bargaining.°
The amount of the agency fee also plainly involves a “question
nonmembers otherwise because there would be a lack of privity. See Scofield,
394 US. at 426 0.3.
Sin Teamsters, Local No. 391 v. Terry, 110 S. Ct. 1339 (1990), the Court
ruled shat a union’s violation of the duty of fair representation was subject to a
jury trial. In so concluding, it ruled that damages (backpay) for a union’s breach
of its duty “is not money wrongfully held by the Union, but wages and benefits
they would have received from McLean had the Union processed the employees’
grievances properly.” 110 S. Ct. at 1348. Similarly, the union’s assertion to
North Bay that it should deduct 100% of union dues from nonmembers,
implicates § 8(d) towards nonmembers for “wages and benefits they would have
received from [North Bay]” and the duty of fair represeniation: “A union must
discharge its duty both ix bargaining with the employer and in its enforcement of
the resulting collective bargaining agreement. Terry, 110 S. Ct. at 1344 (emphasis
added). The statute is thus “implicated.” 7a.
~ i
arising thereunder” of a term and condition of employment under
§ 8(d).’
Of course, a union security provision cannot compel an
employee to sign up for the check-off, but it can compel the
worker to choose otherwise to pay the union directly. Metal
Workers’ Alliance, Inc., 172 N.L.R.B. 815, 817 (1968). But, the
matter of union security is, as the court of appeals admits, a
mandatory subject of bargaining. 45a. Once found to be
bargainable, then the entire matter is open to negotiation.
Furthermore, this Court in General Motors, 373 U.S. at 743,
stated that a union “proposal for requiring the payment of dues
and fees” was “a proposal for an agreement within the proviso to
§ 8(a)(3)” and therefore within the employer’s duty to bargain.
Id. at 745.
The court of appeals’ further discussion of Communication
Workers v. Beck, Sa, will have a devastating effect on the interpre-
tation of § 8(a)(3) and is not convincing as a statement of federal
labor policy for several reasons. First, the court of appeals
contends that holding the amount of fees to be collected from
non-union employees as a mandatory subject of bargaining is not
compelled because the suit in Beck resolved a dispute between
the union and objecting employees. Second, it contends Beck
“has no bearing on this case” as the Court gave no indication that
an employer has a role in addressing the agency fee because to
do so might present the employer an opportunity to affect the
union’s representational expenditures.
The court of appeals has simply refused to acknowledge that
the holding of this Court in Beck and the express language used
’ therein, is that not only is the duty of fair representation violated
7 ‘The topic of agency fees is plainly an “aspect”of a mandatory subject and
“relevant”to a mandatory subject. Local 13, 598 F.2d at 270. North Bay's
interest is also “rooted in...data requested in order to properly administer and
police a collective bargaining agreement.” Oi, Chem. & Atomic Workers v.
NLRB, 711 F.2d 348, 358 (D.C. Cir. 1983).
Js
when a union “exacts” money in excess of germane collective
bargaining expenses, 108 S. Ct. at 2656, but the statute, Ҥ 8(a)(3
)...authoriz[es] the collection of only those fees necessary to
finance collective bargaining.” 108 S. Ct. at 2655, 2657. Since
Section 8(a)(3) is an employer violation of te Act, Petitioner
Ape + et rer ca, Aare sre. tpn tte
with the union to violate the Act. Petitioner properly raised this
issue at the bargaining table with the union, and informed the
union that it would not permit itself to be used as a conduit for
violating the law by the union (since the union had no rebate
procedure). The union agreed “to make and develop lan-
guage . . . concerning the amount of Agency fee,” 13a, thereby
waiving any concern that doing so would impair union representa-
tion. 3
In fact, the activities for which compulsory unionism is
permitted to defray expenses again are those found in § 8 (d) of
the NLRA. The Beck Court repeatedly emphasized the requisite
nexus between collective bargaining and the costs chargeable
under the statute:
The statutory question presented in this case, then, is
whether [§ 8 (a)(3)] includes the obligation to support
union activities beyond those germane to collective
bargaining, contract administration, and grievance
adjustment. We think it does not.®
SReck, 108 S. Ct. at 2648 (emphasis added. ).
rents eo
aie
We conclude that § 8(a)(3) . . . authorizes the exaction
of only those fees and dues necessary to ‘performing the
duties of an exclusive representative of the employees
in dealing with the employer on labor-management
issues.
Beck also makes clear that the Court determined the validity
of the language of collective bargaining agreements, and was not
merely issuing some proclamation of abstract rights: “We granted
certiorari to resolve the important question concerning the
validity of such agreements.”"" And the Court made clear that
provisions which exceed the Beck limitations cannot be negotiat-
ed:
Although we have never before delineated the precise
limits § 8(a)(3) places on the negotiation and enforce-
ment of (compulsory unionism] agreements, the ques-
tion the parties proffer is not a new one.!!
Obviously [Commenting on Teamsters Local 959, 167
N.L.R.B. 1042, 1045 (1967)], once the Board deter-
mined that the dues were not used for collective bar-
gaining purposes, the conclusion that they were not
dues within the meaning of § 8(a)(3) followed automat-
ically.
The Court also emphasized repeatedly that fees which
exceed those permitted by Beck cannot be collected:
Beck, 108 S. Ct. at 2657.
10 peck, 108 S. Ct. at 2646.
11 peck, 108 S. Ct. at 2648 (emphasis added).
12 peck, 108 S. Ct. at 2652.
- 16 -
[P]etitioners contend that § 8(a)(3) cannot plausibly be
read to prohibit the collection of fees in excess of those
et ee eee We
find this argument unpersuasive. .
It simply does not follow . . . that Congress left unions
free to exact dues equivalents from nonmembers in any
amount they please, no matter how unrelated those fees
may be to collective bargaining activities. '*
Congress understood § 8 (a)(3) to afford nonmembers
adequate protection by authorizing the collection of
only those fees necessary to finance collective bargain-
ing activities: because the amount of such fees would
be fixed by their underlying purpose. !°
[T]he rationale underlying § 8 (a)(3) [is]: prohibiting the
collection of fees that are not germane to represe-
ntational activities [i.c., collective bargaining, contract
administration and grievance adjustment].'°
Moreover, the collective bargaining agreement at issue in the
instant case, Article VI, Subsection A, limited payment of service
fees to the union in amounts which “shall not exceed that amount
as Outlined or required by the pertinent case law.” 134; J.A. 151.
Consequently, North Bay was bound both by contract to “de-
duct...service fees...from the salaries of unit members,” J.A. 152
(Article VI, D, 1), and by longstanding law of the Ninth Circuit
13Reck, 108 S. Ct. at 2653 (emphasis added).
14Reck, 108 S. Ct. at 2655.
1514. (emphasis added).
16Reck, 108 S. Ct. 2656 (The Court had so defined “representational
activities,”at 2645.)
-17-
not to collect more agency shop fees than authorized under that
Circuit’s NLRA caselaw.
Finally, allowing the parties to voluntarily determine an
will always remain free not to agree with the employer to jointly
establish a fee. Petitioner here is not at all attempting to “assert”
the rights of its employees, but attempting to ensure that it does
not violate § 8(a)(3) in implementing a union security clause
concerning non-union workers, a reality occurring ever more
Cf. Jordon v. City of Bucyrus, Ohio, 739 F. Supp.
1124 (N.D. Ohio 1990); Mitchell v. Los Angeles Unified School
Dist., 739 F. Supp. 511 (C.D. Ca. 1990)(employer shared with the
union the duty to ensure fair procedures utilized); Price v.
International Union, UAW, 487 U.S. 1229 (1988), vacating 795
F.2d 1128 (2d Cir. 1986), aff'g 621 F. Supp. 1243 (D. Conn.
1985), on remand, 722 F. Supp. 933 (D. Conn. 1989), appeai
docketed No. 90-7652 (2d Cir. July 23, 1990) (issue of employer
liability presented).!®
As an employer, North Bay is attempting to solely protect its
own interests under the law and has not asserted that it is
17-Mhe court below completely failed to appty Ninth Circuit precedent in Seay
v. McDonnell Douglas Corp., 427 F.2d 996 (9th Cir. 1970), that has for twenty
years limited the reach of the union dues obligation of a non-union worker
arising in union security clauses in collective bargaining agreements in California,
as “an implied term of the contract,”to “authorized” purposes, as dispositive here.
See Ferens v. John Deere Co., 110 S. Ct. 1274, 1280 (1990)(applying the law of
the transferor forum to new forum when there is a change of venue). The
» defendants in Seay were both the employer and the union.
18an employer has several legitimate collective bargaining and business
concerns to which union security may affect its economic interests, including, an
uncoercive workplace for prospective professional employees and current
employees. J.A. 140. The present record leaves the worker with three options,
pay the full equivalent of union dues, quit, or refuse to pay the full dues
equivalence and be fired. The latter two options deprive the employer of the
services and investment made in that employee.
« 26
representing employee interests, especially where the employees
interpretation of the instant union security clause made by the
Board. 28a. See Karen Leslie Fuller v. NLRB, No. 89-1269 (D.C.
Cir. 1989). Clearly, a hybrid breach of contract/duty of fair
representation claim by individual employees looms over an
employer who fails to enforce the terms of a contract.
The instant case is therefore about the union’s duty to
produce information relevant to provisions of a contract it has
signed. The case is not about what employees armed with that
information would do in the exercise of their rights under the
Act.
For these reasons, the short form Board decision enforced
by the court of appeals has far reaching implications for: (a) the
duty of parties to provide information relevant to the enforce-
ment of a written collective bargaining contract;! 9 (b) the
proper scope of an agency shop clause under § 8(a)(3) of the
Act, where the interests of nonmember employees may be
antagonistic to the union that is their § 9(a) statutory representa-
tive; (c) the authority of the ALJ to ignore precedent of the
applicable Circuit; and the ability of the NLRB to pursue cases
in the Circuit Court in the face of subsequent adverse Supreme
Court decisions. Each of these interests present a significant
issue which affects employers nationwide.
19 tt is, of course, impossible to know whether without the language agreed
upon there would be any contract at all or any “union security” clause at all. The
result of the Board’s decision and the panel’s decision has effected a forbidden
rewriting of the parties contract where no illegality in the employer’s uemand
justifying a rewrite has been shown. H.K Porter v. NLRB, 397 U.S. 99 (1970).
-19-
Il. THE DUTY OF THE UNION TO SUPPLY IN-
FORMATION TO THE EMPLOYER IS COEX-
TENSIVE WITH THE DUTIES SET OUT IN
SECTION 8(d) OF THE ACT OR ESTABLISHED
BY CONTRACT
The court of appeal’s limited response to the central
argument of Petitioner that the union’s refusal to supply it with
information pursuant to the express terms of the collective-
bargaining agreement and for purposes of negotiation and later
arbitration, was to conclude that this “does not become mandato-
ry solely by reason of the parties’ agreement to bargain over it or
to submit it to arbitration.” 6a. The Court suggests that a
nonmandatory subject of bargaining cannot be converted into a
mandatory subject and neither may an agreement to arbitrate
“confer{] an independent right to information regarding that
subject.” 6a.
It is abundantly clear that a union is likewise required to
respond to an employer’s request for information necessary to
address relevant “issues about which the parties are obligated to
bargain.” This case represents a tremendous step backward for
collective bargaining nationwide. In NLRB v. Insurance Agents’
Union, 361 U.S. 470, 477 (1960), this Court stated that “ §
8(b)(3), [is] the counterpart of § 8(a)(5).” Consequently, in
Local 13, Detroit Newspaper Printing & Graphic Communications
Union v. NLR, 598 F.2d 267, 270 (D.C. Cir. 1979), the court
below affirmed that the union’s duty to provide information is
akin to the employer’s duty to supply information. That duty not
only encompasses information necessary to perform its bargaining
obligation under the Act, but also to “negotiate effectively.”
Westinghouse Elec. Corp., 239 N.L.R.B. 106, 107 (1978)(“The fact
that the information is of probable or potential relevance is
sufficient to give rise to an obligation...to provide it.”). The duty
also corresponds to the civil discovery standard and is a “liberal
one,” Local 13,. at 271. “[A]ny less rule in labor disputes would
hamper the bargaining process.” Jd. at 272.
- 20 -
The court of appeals, however, affirms a surprising new
exception to this rule of production, that the amount of the
agency fee is a non-mandatory subject of bargaining because of
its view that agency fees do not affect the relationship between
employer and employce, but only between employee and union.
Being designated a nonmandatory subject of bargaining, the court
accepts the Board’s contention that the union in this case could
lawfully refuse to supply sufficient information, to set an egency
fee, to Petitioner North Bay. 6a.
In discerning whether or not a matter fits within the meaning
of “terms and conditions of employment,” this Court always has
looked to the statute’s plain meaning and also whether it will
serve the interests of the Act. Fibreboard Corp. v. NLRB, 379
U.S. 204, 210 (1964)(“contracting out” found to be an expansion
of previously held interpretations of § 8(d), but “is well within the
literal meaning of the phrase ‘terms and conditions of employ-
ment.’ oe As Petitioner now shows, the issue involved here
serves both purposes.
The court of appeals fundamentally confuses the analysis
when it attempts to disprove that the payment of fees to the
union by the employer, from the wages of an employee, are not
an aspect of bargaining. At best, the court only can suggest
general principles that agency fees encompass only employee and
union concerns. Because North Bay’s request for information
was grounded in express contractual language, the court’s
complete surrender of discretion to the Board in the circumstanc-
es of this case, undermines its entire argument. 6a.
201n First Nat'l Maint. Corp. v. NLRB, 452 U.S. 666, 679 n.18 (1981), the
Court noted that “[t}he subjects over which mandatory bargaining has been
required have changed over time.” If that statement is true, then “the conditions
of employment” language in § 8(d) does not immutably fix a set of subjects or
“establish a limitation against which proposed topics must be measured.”
Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 178
(1971). The Court may take judicial notice that historically, the list of mandatory
subjects has grown larger, not smaller.
= =
In Ford Motor Co. v. NLRB, 441 U.S. 488 (1979), the Court
was confronted with the question “whether prices for in-plant
cafeteria and vending food and beverages are ‘terms and condi-
tions of employment’ subject to mandatory collective bargaining
under §§ 8(a)(5) and 8(d) of the National Labor Relations Act.”
441 US. at 490. The Court ruled that Ford was obligated to
bargain about the price of the food services “and other aspects
of this service” as “conditions of employment” over which “one
need not strain to consider” as such. Jd. at 498.
The Court reasoned that “[ijncluding within § 8(d) the prices
of in-plant food and beverages” would serve the ends of the
NLRA, because “local agreements between Ford and the Union
have contained detailed provisions about nonprice aspects of in-
plant food services for several years.” 441 U.S. at 500. The
Court reached this conclusion noting that the subject was “plainly
germane to the ‘working environment’,” quoting Fibreboard, 379
U.S. 203, 222 (Stewart, J., concurring), and disregarding that the
employer was not in the business of selling food. 441 U.S. at 498.
Ford Motor Co. argued, in much the same manner as the
court and the Board have done here, that the matter of food
pricing was not a mandatory subject of bargaining and does not
affect the empicyment relationship. This Court explained that,
“[hjere, however, the matter of in-plant food prices and services
is an aspect of the relationship between Ford and its own
employees.” Jd. And in the instant case, the payment of fees by
non-union workers, out of wages which would otherwise be paid
to them by their employer, similarly is an “aspect” of the employ-
ment relationship North Bay hs with its workers, inasmuch as it
only occurs because of an agreement with the employees’
certified representative and North Bay (not involving the
employees directly).?!
21tn Breininger v. Sheet Metal Workers Int'l 110 S. Ct. 424, 437 (1990), the
Court ruled that the breath of the union’s duty of fair representation is
coextensive with representative status: “Only because of its status as a Board-
certified bargaining representative and by virtue of the power granted to it by the
2.
The determinative aspect of the case, then, was the fact that
Ford Motor Company had bargained over the provision of food
services in its prior collective-bargaining agreements and had a
corresponding duty to provide relevant information to the union
concerning that topic:
The National Labor Relations Board’s order at issue
here directed petitioner to bargaining with respondent
Union “with respect to food services and changes in
food prices in [petitioner’s in-plant] vending machines
and cafeteria...” Ford Motor Co. (Chicago Stamping
Plant), 230 N.L.R.B. 716, 719 (1977), enf’d, 571 F.2d
993 (CA7 1978). The duty to bargain over nonprice
aspects of in-plant food services is thus also at issue
here. The Board’s order also obligated petitioner to
supply respondent Union with the information neces-
sary for bargaining. 230 N.L.R.B., at 719. It seems
agreed that if food prices and service are mandatory
bargaining subjects, the order to furnish information
should stand. Detroit Edison Co. v. NLRB, 440 US.
301, 303, 99 S.Ct. 1123, 1125, 59 L.Ed.2d 333 (1979).
Ford Motor Co., 441 U.S. at 490 n.1 (emphasis added).
The court of appeals failed to recognize that the duty to
bargain is not tied to a strait jacket interpretation. Although
overlooking this Court’s conclusion that the collective bargaining
agreements are critically important in determining the mandatory
nature of the subject bargained for, the court of appeals did
collective-bargaining agreement..comes the responsibility to exercise it in a
nonarbitrary and nondiscriminatory fashion..The key is that the union is
administering a provision of the contract, something that we have always heid is
subject to the duty of fair representation. ‘The undoubted broad authority of the
union as exclusive bargaining agent in the negotiation and administration of a
collective bargaining contract is accompanied by a responsibility of equal scope,
the responsibility and duty of fair representation.’ (quoting Humphrey v. Moore,
375 US. 335, 342 (1964)(emphasis in original).
ee
recognize that the decision in Ford Motor Co. demonstrates that
agreements to negotiate over certain topics may be instructive in
concluding that a new “trend of industrial practice” may exist. 7a.
However, the court below refused to acknowledge that both the
Statute and the state of the law creates the duty to supply
information. Shearson v. McMahon, 482 U.S. 268, 107 S. Ct.
2332, 2359 (1987) (Stevens, J. concurring) (“But after a statute
has been construed by this Court...it acquires a meaning that
should be as clear as if the judicial gioss had been drafted by the
Congress itself.”).72
Because Petitioner North Bay and the union had an express
agreement to negotiate over the agency shop fee and to termi-
nate any dispute in arbitration, the matter should have become
a mandatory subject of bargaining between these two parties, and
the Board, as in Ford Motor Co., should have ordered the union
to supply the requested information and bargain over the amount
(“price”) of the proposed agency fee. Here, the court of appeals
“failed to give the ‘plain language of the standard [of § 8(d)] its
ordinary meaning.” 441 US. at 497, (citing to, Pittsburgh Plate
Glass Co., 404 U.S. at 166).
*2The Board’s reasoning turns up as a manifestation of its former decision
in Detroit Mailers Union No. 40, 192 N.L.R.B. 951 (1971), which this Court in
Beck, 108 S. Ct. at 2652 n.7, had proved to be wrong.
23-The instant case is therefore completely distinguishable from Pittsburgh
Plate Glass, 404 U.S. 157 (1971), where the employer changed the health
benefits of retired workers and where this Court determined in that context that
retired workers were not “employees” within the meaning of the Act. Therefore,
, the unilateral modification of the contract by the employer in Pittsburgh Plate
Glass was not a violation of the duty to bargain under § 8(d) because matters
concerning retirees were permissive subjects. The case is inapposite because the
agency fees at issue in the instant case concern present workers and union
security is admitted by the Board and the court of appeals to be a mandatory
subject of bargaining, 4a, in which the amount of the fee is the most vital
“aspect”of that subject. “No third-party interest is directly implicated, and the
standard of Pittsburgh Plate Glass has no application.” Ford Motor Co., 441 U.S.
at 501.
-24-
Furthermore, this Court has taken an emphatic role in
supporting document requests in the context of collective
bargaining and in preparation for arbitration. Thus, in Detroit
Edison Co. v. NLRB, 440 U.S. 301, 303 (1979), the Court
determined that under § 8(a)(5), the duty to bargain “includes a
duty to provide relevant information needed by a labor union for
the proper performance of its duties as the employees’ bargaining
representative.” In NLRB v. Acme Indus. Co., 385 U.S. 32
(1967), the Court was confronted with the issue whether the
Board’s jurisdiction had to await the outcome of arbitration
proceedings. The Board found the documents to be relevant and
this Court concluded that “this liberal discovery-type standard”
aided the arbitration process. Id. at 437.4
Arbitration can function properly only if the grievance
procedures leading to it can sift out unmeritorious
claims. For if all claims originally initiated as grievances
had to be processed through to arbitration, the system
As the Court will aiso note, one such employee of Petitioner, Karen Leslic
Fuller, attempted to intervene before the Board in this case, 28a, filed her own
petition for review involving the instant matter, Case No. 89-1269 (D.C. Cir.),
and attempted unsuccessfully to file a brief amicus curiae below. Clearly, the
union’s refusal to negotiate with Petitioner North Bay is creating numerous
ongoing disputes in the bargaining unit. “[I]t follows, that more, not less,
collective bargaining is the remedy.” Ford Motor Co., 441 U.S. at 502.
2A The Board has also recognized in numerous cases that if the information
sought by a party has a reasonable or probable relevance to a contract breach,
it must be produced. Realty Maintenance, Inc., 265 N.L.R.B. 1352 (1982), enf’d,
723 F.2d 746, 747 (9th Cir. 1984)(liberal discovery-type standard applies even to
“matters beyond the more traditional request for data"); Washington Gas Light
Co., 273 N.L.R.B. No. 20 (1984)(confidential records must be submitted where
never claimed prior to request); ASARCO, Inc., Tennessee Mines Div. v. NLRB,
805 F.2d 194 (6th Cir. 1986)(matter disclosable to union enforced based upon
collective bargaining agreement); Nielson Lithographing Co., 279 N.L.R.B. No.
118 (1986)(employer violated the Act by refusing to provide union with
information concerning a unilateral change in working conditions).
~ S
would be woefully overburdened. Yet, that is precisely
what the respondent’s restrictive view would require. It
would force the union to take a grievance all the way
through to arbitration without providing the opportunity
to evaluate the merits of the claim.
Acme, 385 U.S. at 438.
Under these circumstances, if the Board will no longer
enforce production of document requests involving extant
bargaining subjects and obligations, then a new wrench has been
thrown into collective bargaining that will cause uncertainty to
develop in other areas involving the duty to bargain over “wages,
hours, and other terms and conditions of employment.” Consis-
tent with Acme, the Board should have enforced North Bay’s
request for information in furtherance of the arbitration process.
-.
CONCLUSION
As demonstrated above, this case presents a solid record
upon which this Court may decide the twin important ques ‘ions
presented. Due to the manner in which issues arise a>< are
form. ated by the Board, the questions under § 8(a)(3) 1d §
8(d) oifered here will never again be presented to aco: for
review, because the Board’s General Counsel will be pre: ided
from doing so.
WHEREFORE, Petitioner respectfully requests that the
Court issue a writ of certiorari to the District of Columbia Circuit
to review these important questions central to the administration
of the National Labor Relations Act.
Respectfully submitted,
MICHAEL E. AVAKIAN*
CENTER ON NATIONAL
LABOR POLICY, INC.
5211 Port Royal Road, Suite 103
North Springfield, VA 22151
(703) 321-9180
Attorney for Petitioner
October 5, 1990 *Counsel of Record
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UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 89-1467
Argued May 15, 1990 Decided June 15, 1990
NORTH BAY DEVELOPMENT DISABILITIES
SERVICES, INC. D/B/A NORTH BAY
REGIONAL CENTER, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
Petition for Review of an Order of the
National Labor Relations Board
Michael E. Avakian for petitioner.
Margaret G. Bezou, Attorney, National Labor Relations
Board, with whom Robert E. Allen, Associate General Counsel,
Aiieen A. Armstrong, Deputy Associate General Counsel, and
Peter Winkler, Attorney, NLRB, were on the brief for respondent.
Before Ruth B. Ginsburg, D. H. Ginsburg, and Sentelle,
Circuit Judges. Opinion for the Court filed by Circuit Judge D.
H. Ginsburg.
D. H. GINSBURG, Circuit Judge: The National Labor
Relations Board held that a union does not commit an unfair
labor practice when it declines an employer's demand for
information about the union's finances in the course of bargaining
over the amount of the agency fee that non-union employees will
have to pay to the union. The Board held that the amount of an
agency fee is not a mandatory subject of bargaining and does not
become so by virtue of a union and an employer's agreement to
negotiate over it, and that therefore, a union's refusal to provide
information relevant to that issue does not implicate the NLRA.
Social Servs. Union, Local 535, 2837 NLRB No. 129 (1988). We
find that there is sufficient support for the Board's decision, and
accordingly, deny the employer's petition for review.
I. FACTS
The Social Services Union, Local 535, and the Employer,
petitioner North Bay Development Disabilities Services, Inc.,
entered into a collective bargaining agreement (CBA) containing
an agency shop clause that required each employee either to join
the Union or to pay it an agency fee not in excess of that allowed
by “the pertinent case law." The CBA also required the partics
to negotiate over “the amount of Agency fee to be paid” and
provided that if agreement were not reached by a specified date
(long since passed) “the issue shall be submitted to an arbitrator."
In the ensuing negotiations, the Employer proposed that the
agency fee be set at 20% of the periodic dues paid by Union
members. The Employer aiso requested that, in the event that
the Union did not agree to the 20% figure, it provide the
Employer with “a detailed breakdown of all revenues and
expenditures” of both the Local and the International for the
current and the prior three years. The Emplov<r maintained that
this information was necessary in order for it and the Union
jointly to determine what percentage of the members’ dues are
spent on representation, and thus the maximum that non-
members could be charged for the Union's services.
When the Union refused to supply the information, the
Employer invoked the arbitration clause of the CBA The
Employer has since adhered to its demand for the information on
the ground that it is necessary to the presentation of its case
before the arbitrator. The Employer also filed an unfair labor
practice charge with the Board, alleging that the Union's refusal
to provide the requested information constituted a refusal to
bargain in good faith, in violation of § 8(b)(3), 29 U.S.C. §
158(b)(3). The Regional Director of the NLRB issued a
complaint, an ALJ ruled that the Union had not violated §
8(b)(3), and the Board (insofar as is relevant here) “affirm{ed]
the judge's rulings, findings, and conclusions and. . . adopt{ed]
the recommended Order." In so doing, the Board explained
that the amount of agency fees [sic] 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 bargain concerning mandatory subjects, [the
Union] had no duty to provide information requested
here.
287 NLRB at 129 n.1.
The Employer petitions for review. It argues that the Board
erred insofar as it held that the amount of an agency fee is not
a mandatory subject of bargaining, and that even if the amount
of such a fee is only a permissive subject of bargaining, the
Employer is entitled to the information it requested if it is
relevant "to bargaining, to the contract or to the parties’ pending
arbitration."
Il. ANALYSIS
Whether a matter is within the realm of “terms and condi-
tions of employment," NLRA § 8(d), 29 U.S.C. § 158(d), and is
therefore a mandatory subject of bargaining, “is a matter concern-
ing which the Board has special expertise." Our review is
concomitantly narrow. We will uphold the Board's decision as
long as it is “reasonably defensible." Ford Motor Co. v. NLRB, 441
U.S. 488, 495-97 (1979); see Chevron U.S.A. Inc. v. NRDC, 467
U.S. 837, 842-45 (1984) (“if the statute is silent or ambiguous
with respect to the specific issue, the question for the court is
whether the agency's answer is based on a permissible construc-
tion of the statute"). We will disturb thé Board's determination
only if its factual findings are not supported by substantial
evidence or it has “acted arbitrarily or otherwise erred in applying
established law to the facts at issue." United Food & Commercial
Workers Int'l Union, Local 150-A v. NLRB, 880 F.2d 1422,
1428-29 (D.C. Cir. 1989).
Here we find no basis for overturnin: the Board's conclusion
that the amount of an agency fee is not a mandatory subject of
bargaining. The Board reasonably construed the obligation to
bargain in light of the limitation found in the proviso to $
8(b)(1)(A), which protects "the right of a labor organization to
prescribe its own rules with respect to the acquisition or retention
of membership therein." That proviso has previously led the
Board to the position that “the fees [that a union] imposes are
subject to the scrutiny of the Board only in limited situations,"
Metal Workers’ Alliance, Inc., 172 NLRB 815, 816 (1968). The
ALJ aptly described such situations as those in which the union's
"enforcement [of a fee requirement] affects employment status,"
and this is not a case of that character.
The line between the internal affairs of a union, shielded
from Board regulation by § 8(b)(1)(A), and the "terms and
conditions of employment,” as to which the Board enforces the
obligation to bargain, is not always clear. U.O.P. Norplex, Div. of
Universal Oil Prods. Co. v. NLRB, 445 F.2d 155, 157 (7th Cir.
1971) (withdrawal of fines union imposed upon non-strikers not
a mandatory subject because it "primarily involves] the relations
between the employee and his union, although [it is] of some
interest to the employer"). It is clear enough, however, that the
‘amount of an agency fee concerns primarily the relationship
between the union and the non-member employees; it is not "an
aspect of the relationship between the employer and employees,”
which strongly suggests that it is not a mandatory subject of
bargaining between a union and an employer. Allied Chem. &
Alkali Workers, Local Union No. 1 v. Pittsburgh Plate Glass Co.,
404 U.S. 157, 178 (1971) (citing NLRB v. Wooster Div. of Borg-
Wamer Corp., 356 U.S. 342 (1958)). It is for this reason that the
mandatory character of the more general issue of union security
(i.e., whether employees will have either to join the union or to
pay an agency fee), see NLRB v. General Motors Corp., 373 U.S.
734, 743-45 (1963), does not compel the conclusion that the
amount of the agency fee is also a mandatory subject.
Contrary to the Employer's argument, the Supreme Court's
decision in Communications Workers v. Beck, 487 U.S. 735
(1988), does not compel the Board to a different result. The
Court there held that, under the NLRA, a worker who chooses
not to join a union cannot be required to pay to the union more
than is necessary "to support union activities. . - germane to
collective bargaining, contract administration, and grievance
adjustment." Id. at 745. The Court's decision has no direct
bearing on this case, however, because it arose from a dispute
between an employee and a union over the amount of the agency
fee, and did not raise the issue of whether that amount is a
subject of mandatory bargaining between a union and an
employer. The inference that we draw from Beck, moreover,
supports the Board's position: because an agency fee must be
based upon a union's representational expenses, it does not make
sense to force a union to bargain with an employer over the
amount of the fee, lest the resulting figure reflect the parties’
relative bargaining strengths rather than the amount chargeable
by some objective standard - presumably one based, like a public
utility rate-making decision, upon experience in the recent past.
See, e.g., Price v. International Union, UAW, 722 F. Supp. 933,
937-42 (D. Conn. 1989) (upholding union's method of calculating
chargeable fees based upon major categories of expenditures in
its financial statements, which "closely track{[ed] guidelines
established in a recent internal NLRB memorandum (Memoran-
dum GC 88-14, Guidelines Concerning CWA v. Beck, NLRB
Office of the General Counsel, Nov. 15, 1988")). Indeed, the
practical effect of such enforced bargaining could well be to
require a union to negotiate with an employer the amount that
it will devote to representation of employees in the future, i.c.,
during the term of the contract, which is surely an internal union
matter of nc proper concern to the employer.
The Employer in this case voices the concern that it might
be charged with an unfair labor practice if it withholds an exces-
sive fee from an employee's paycheck, or fires an employee who
does not authorize such withholding. This apprehension is at
best premature and appears also to be unfounded. If an emp!.y-
ee were to object to the amount of the fee to be withheld - a
feature notably absent from this case - and were to refuse to
authorize the deduction, it appears that, unless the Employer had
reason to believe that the fee was unlawful, it would commit no
unfair labor practice if, as required by the CBA, it dismissed the
employ ¢ at the Union's request. See H.C. Macaulay Foundry
Co. v. iWLRB, 553 F.2d 1198, 1201-02 (9th Cir. 1977); see also
Helmsley-Spear, Inc., 275 NLRB 262, 262 n.1, 268 (1985).
The Board has not had occasion, since the decision in Beck,
to address the means by which an employee may properly
challenge the level of an agency fee. (The non-union employees
in Beck successfully sued their union in federal court, asserting
that use of their agency fees for purposes other than representa-
tion violated the union's duty of fair representation.) It is surely
within the Board's discretion, however, to conclude that the
appropriate mechanism is not for an employer, in bargaining with
a union, to appoint itself the representative of some hypothetical
non-union employees who may object to the amount of the
agency fee set by the union.
Our conclusion that the Board reasonably determined that
the amount of a union's agency fee is not a mandatory subject of
bargaining dooms the whole of petitioner's claim. The duty to
bargain imposed by the Act is limited to the mandatory subjects
captured by the statutory litany of “wages, hours, and other terms
and conditions of employment” in § 8(d). See Borg-Warner, 356
U.S. at 349. As the Board held, a subject that is not mandatory
does not become mang@gfory solely by reason of the parties’
agreement to bargain over it or to submit it to arbitration. See
Chemical Workers, 404 U.S. at 187 ("By once bargaining and
agreeing On a permissive subject, the parties, naturally, do not
make the subject a mandatory topic of future bargaining.”).
7a
Of course, an agreement to negotiate about a subject, par-
ticularly if it is part of a "trend of industrial practice," may be
"relevant in construing the phrase ‘terms and conditions of
employment,” Ford Motor, 441 U.S. at 499-500; even such a
trend is not decisive, however, and here we have no indication
that more than a single such agreement exists. Although couris
do, on occasion, refer to parties’ contractual obligations when
considering whether one party has committed an unfair labor
practice by refusing to bargain or to submit an issue to arbitra-
tion, petitioner points to no such case involving a non-mandatory
subject. Thus, it is of no moment whether the Union violated the
CBA by failing, as alleged, to provide information relevant to
negotiation or arbitration of the agency fee issue (a contract
question upon which we, like the Board, express no opinion); the
Union's refusal to provide the requested information simply does
not implicate the statute. Chemical Workers, 404 U.S. at 176
n.17.
Ill. CONCLUSION
The Board was reasonable in interpreting the NLRA not to
make the amount of the agency fee that a Union charges non-
members a mandatory subject of bargaining. And since a non-
mandatory subject does not become mandatory by virtue of the
parties’ agreement to negotiate or to arbitrate the issue, the
Union did not commit an unfair labor practice by refusing to
supply information relevant to that subject. The petition for
review is therefore
Denied.
287 NLRB No. 129 SJB
D--5017
Napa, Solano, and
Sonoma Counties, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SOCIAL SERVICES UNION, LOCAL 535,
SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL -- CIO
and Case 20--CB--7122
NORTH BAY DEVELOPMENT DISABILITIES
SERVICES, INC., d/b/a NORTH BAY
REGIONAL CENTER
DECISION AND ORDER
On 24 July 1987 Administrative Law Judge William 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 delegated 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! and to adopt the
recommended Order.
ORDER
The recommended Order of the administrative law judge is
adopted and the complaint is dismissed.
Dated, Washington, D.C. 19 February 1988
James M. Stephens, Chairman
Wilford W. Johansen, Member
Marshall B. Babson, Member
NATIONAL LABOR RELATIONS
BOARD
lin adopting the judge's dismissal of the complaint, we agree with his
»conclusion that the amount of agency fees is a nonmandator” subject of bargain-
ing 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 bargain concerning manda-
tory subjects, we agree that the Respondent had no duty to provide information
requested here. We therefore find it unnecessary to pass on the additional
reasons set forth by the judge for his conclusion.
10a
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS } /ARD
DIVISiUs Ur JUDGES
BRANCH OFFICE
SAN FRANCISCO, CALIFOR: [A
SOCIAL SERVICES UNION, LOCAL 535,
SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL -- CIO
and Case 20--CB--7122
NORTH BAY DEVELOPMENT DISABILITIES
SERVICES, INC., d/b/a NORTH onal
REGIONAL CENTER
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 Labor Relations Board, herein called the Board, issued
a complaint and notice of hearing, based upon an unfair labor
‘practice charge filed on 21 January 1987, alleging a violation of
‘ Section 8(b) (3) of the National Labor Relations Act, as amend-
ed, 29 U.S.C. Sec. 151, et seq., herein called the Act. 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. Based upon the entire record, upon
the oral arguments and brief filed on behalf of the General
Counsel, and upon my observatien of the demeanor of the
witness, I make the following findings of fact and conclusions of
law.
lla
I. Jurisdiction
At all times material, North Bay Development Disabilities
Services, Inc., d/b/a North Bay Regional Center, herein called the
Employer, has been a non-profit California corporation, with
offices and places of business in Napa, Solano and Sonoma
Counties in the State of California, and has been engaged in
providing and obtaining services for developmentally disabled
persons. In the course and conduct of those business operations
during calendar year 1986, the Employer received funds in excess
of $ imillion from the State of California which, in turn, is
directly engaged in interstate commerce. Therefore, I conclude,
as admitted in the answer, that at all times material, the Employ-
er has been an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
II. The Labor Organization Invoived
At all times material, Social Services Union, Local 535,
Service Employees International Union, AFL-CIO, herein called
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 information that is
requested to implement the terms of a collective-bargaining
contract. But in his brief, Counsel for the General Counsel
concedes that the contractual subject 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 whd choose not to become
members of Respondent, even though they desire to continue
working for the Employer in the bargaining unit represented by
Respondent.
12a
As discussed more fully post, to violate the Act a refusal to
supply information must, inter alia, pertain to a bargaining subject
categorized as a mandatory one. Parties’ agreements concerning
subjects that are not mandatory cannot be enforced by the Board
under the Act. Amounts of agency fees, like amounts of periodic
dues and initiation fees established by labor organizations, are not
mandatory subjects of bargaining. Therefore, I conclude 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 executed
a collective-bargaining contract, covering a unit of professional
and full- and part-time employees,! 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, whichever is earlier." For purposes of this proceed-
ing, the significant portion of that contract is Article VI, Subsec-
tion A, which reads:
Agency Shop. Each employee covered by this Agree-
ment who is hired after September 12, 1986 shall, as a
condition of continued employment, within thirty (30)
' days of first employment at the Center, either 1)
lThe unit description, which the parties agree is appropriate, is: All
professional employees of the Employer, including physicians, psychologists, nurse
specialists, nutritionist and occupational therapist, all full-time and regular part-
time employees of the Employer, including Clients Rights Specialist, Community
Resource Consultants, Senior and nonsenior Client Program Coordinators, Fiscal
Assistants, Office Assistants, Assessment Counselors, Revenue Coordinator and
CDER/Vendor Coordinator; excluding all other employees, confidential employe-
es, managerial employees, accountant, temporary employees, guards and
supervisors as defined by the Act.
Pee +
13a
become and remain a member in good standing of the
Union, or 2) commence and continue to make pay-
ment(s) 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 td be bound by the relevant 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 bargaining
history that led to agreement on this provision.“ However, it is
clear that the Employer was concerned with confining the agency
fee to no more than an amount needed by Respondent for
purposes of collective bargaining, contract administration and
grievance adjustment. That approach is not a novel one. Under
the Railway Labor Act and in the public employment sector, it is
possible for nonmembers to preclude expenditure of monies
’ ~The Employer's negotiator agreed that, during negotiations, Respondent 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 negotiator 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."
lda
derived from their agency fees for items that are not, “necessary
or reasonably incurred for the purpose of performing the duties
ot an exclusive representative of the employees in dealing with
the employer on labor-management issues." Ellis v. Brotherhood
of Ry. Clerks, 466 U.S. 435, 448 (1984). See also, Machinists v.
Street, 367 U.S. 740 (1961) and Abood v. Detroit Bd. 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. Communica-
tions Workers of America v. Beck, No. 86-637, __ U.S. __, 107 S.
Ct. 2480 (June 1, 1987). However, the Employer's negotiator
testified that regardless of the conclusion ultimately reached by
the Court, negotiation of the agency fee amount was not contin-
gent exclusively upon its decision in that or other cases: "I still
would see an obligation on behalf of the parties to meet and
develop language to be included in the agreement, that's the main
thing.” Nevertheless, he did contemplate that whatever agency
fee amount was negotiated would be pegged to Respondent's
bargaining-representative type expenditures. Thus, in a letter
dated 29 November 1986, he proposed that the agency fee be set
in an amount equal to twenty percent of Respondent's periodic
dues, explaining:
Admittedly, the above percentage (20%) is just an
estimate of the appropriate proportion of membership
dues which is alloted by Local 535 for direct represen-
tational purposes. I am confident that through a full
disclosure of your revenues and expenditures, we will
jointly be able to identify the correct percentage, if
twenty percent proves incorrect.
That same letter contained the request for information that
has led to the complaint:
1Sa
If the above suggested language or percentage amount
is unacceptable, we request the following data be
provided as soon as possible:
1. A detailed breakdown of all revenues and expendi-
tures of Local 535 for the most recent period and the
previous three years,
2. A detailed breakdown of all revenues and expendi-
tures of the Service Employees International Union for
the most recent three fiscal years, and
3. Any other documents which you feel to be relevant
to the process of defining the appropriate amount of
the Agency fee to be paid by non-members in the
NBRC unit.
Respondent has flatly refused to provide that information.
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
Management 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.
‘
In the event that the Supreme Court decides on
the issue of agency *sops under the Act, we will of
course comply witli) @y relevant requirements outlined
16a
therein. We should note, however, that the decisic is
reached by the Court in the public sector do not req: ¢
that the Union provide such tinancial imiormation to 2
employer. The issue of what is an appropriate ser ¢
fee (in the public sector) is an issue of discus. na
between the Union and the individual employees 10
choose to pay service fees in lieu of dues. As we'r> ure
you're aware, the Court has outlined a procec —_ by
which employees can contest the service fee .ount
established by the Union. This is not, thereivie, 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 Arbitration Association.
Renewing the theme of an agency fee amount pegged to Respon-
dent's expenditures for “direct representational purposes," the
letter requested “a panel of arbitrators" who would be “experi-
enced with Hudson, et al- type cases .
C. Analysis
As a general proposition, parties to collective bargaining
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." (Citation omitted.) NLRB v. Acme Industrial Co., 385
U.S. 432, 435-436 (1976). Similarly, the obligation imposed upon
the bargaining representative, "parallels [the] employer's duty to
3Chicago Teachers Union, Local No. 1 v. Hudson, _ US. _, 106 S. Ct.
1°66 (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 Bd. of Education, supra.
17a
bargain collectively" with the result that the bargaining represen-
tative is, “likewise obliged to furn.sh the employer with relevant
information." (Citations omitted.) Local 13 Detroit Newspaper 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 production. 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 tr a subject that is nonmandatory -- one that
does not involve “wages, hours, and other terms and conditions
of employment" within the meaning of Section 8(d) of the Act,
NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342,
348-349 (1958) -- then neither employers nor labor organizations
are obliged under the Act to furnish "information requested for
bargaining on [that] subject." American Stores Packing Company,
A Division of Acme Markets, inc., 277 NLRB No. 190, slip op. at
9 (January 14, 1986).* For "the duty to furnish. . . informa-
tion stems from the underlying statutory duty imposed on employ-
ers and unions to bargain in good faith with respect to mandatory
subjects of bargaining. Cowles Communications, Inc., 172 NLRB
1909, 1909 (1968).
Parties do not have the power ¢o alter this result merely by
reaching agreement on the terms of a nonmandatory 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 deter-
mined that the Board should not have general jurisdiction over
all alleged violations of collective bargaining agreements. . . .”
(Footnote omitted.) NLRB v. C & C Plywood Corp., 385 U.S. 421,
‘
4 accord: UOP Inc., 272 NLRB 999, 1069, 1070 (1985); Local 777,
Democratic U. Organizing Com. v. NLRB, 603 F.2d 862, 888, fn. 69 (D.C. Cir.
1978); NLRB v. Gibraltar Industries, Inc., 653 F.2d 1091, 1097 (6th Cir. 1981).
18a
427 (1967). “By once bargaining and agreeing to a permissive
subject, the parties, naturally, do not make the subject a manda-
tory topic of future bargaining.” Allied Chemical & Alkali Workers
of America, Local Union No. 1 v. Pittsburgh Plate Glass, Chemical
Division, 404 U.S. 1257, 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 & Heating Co., 254 NLRB 1399, 1399 (1981).°
Inasmuch as a statutory bargaining obligation cannot be
created merely because Respondent and the Employer have
agreed to bargain about a nonmandatory subject,® the threshold
issue in this case is whether or not 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. But that does not open the door to bargaining about
all components and aspects of union security. One policy
explicitly incorporated into the Act by Congress is avoidance of
"outside interference in union-decision making.” (Citations
omitted.) NLRB v. Financial Institution Employees of America,
Local 1182, __ U.S. _, __, 106 S.Ct. 1007, 1014 (1986). Thus,
Of course, the fact that such agree.nents cannot be enforced by the Board
under the Act does not leave parties free to change, nor to disregard altogether,
their contractual commitments concerning nonmandatory bargaining subjects.
"The remedy for a unilateral mid-term modification to a permissive term lies in
an action for breach of contract, . . . not in an unfair labor practice proceeding.”
Ibid., 404 US. at 188.
6-4] permissive subject of bargaining (does not] become mandatory [merely
because] it [is] presented together with a mandatory subject,” Borden, Inc.,
Chemical Division Thermoplastic Products, 279 NLRB No. 59, slip op. JD at 6-7
(April 22, 1986), and there has been no independent showing that the amount
of the agency fee is "so intertwined with and inseparable from the mandatory
terms and conditions for [Respondent's and the Employer's} contract .. . .," Sea
Bay Manor Home for Adults, 253 NLRB 739, 740 (1980), enfd. 685 F.2d 425
(2nd Cir. 1982), that it has taken on the characteristics of a mandatory subject.
19a
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 affairs of labor organizations are not "an aspect
of the relationship between the employer and the employees,"
Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass, supra,
but rather, by statutory definition, are encompassed by the
relationship between labor organizations and employees. It
follows that subjects embraced by the internal affairs proviso are
not mandatory ones. "Mandatory subjects of bargaining concern
relations between the employer and the employees, not between
the union and the employees." 1 C. Morris, The Developing
Labor Law 858 (2hd ed. 1983).
One subject specifically regarded by Congress as an internal
affair of labor organizations is that of the amounts of fees estab-
lished and assessed on employees. Congress ultimately rejected
a House-passed "proposal that would have regulated union
procedures for. . . assessing dues. . . ., NLRB v. Financial
Inst. Employees, supra, 106 S.Ct. at 1015, fn. 11, because, "Senate
conferees. . . felt that it was unwise to authorize {the Board]
to undertake such elaborate policing of the internal affairs of
unions.” 93 Cong. Rec. 6601 (1947), 2 Legis. Hist. 1540.
Consistent with that Congressional 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 scrutiny of the Board only in limited situations.” Metal
Workers’ Alliance, Inc., 172 NLRB 815, 815-816 (1968). Conse-
quently, as a basic proposition, fees imposed by labor organiza-
tions are part of their internal relations with employees 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 proviso would not
shield Board scrutiny of fees imposed by labor organizations.
Basically, labor organizations’ internal regulations are subject to
Board scrutiny whenever their enforcement affects employment
status. NLRB v. Allis-Chalmers Manufacturing Co., 388 U.S. 175
195 (1967). But in the area of fees assessed by labor organiza-
tions, that scrutiny is restricted to situations where amounts
imposed are not truly "periodic dues and initiation fees" or are
not “uniformly required,” within the meaning of the second
proviso to Section 8(a)(3) of the Act, or, in addition, are
“excessive or discriminatory” within the meaning of Section 8 (b)
(5) of the Act. Ibid.; Ferro Stamping and Manufacturing Co., 93
NLRB 1459, 1464 (1951); Bay Counties District Council of Car-
penters (Assoc. Home Bidrs. of the Greater East Bay), 145 NLRB
1775, 1776 (1964).
It follows that if a labor organization proposes a union
security clause that contravenes one of those proscriptions, then
the obvious illegality, and its implications for the continued
employment of noncomplying employees, might weil 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 bargaining 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 upon the
above-described Railway 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 while the
Supreme Court has granted certiorari in Beck, it has not yet
decided to similarly restrict expenditures of agency fees collected
from nonmembers employed by employers subject to the Act.
Nor in any other case has the Court imposed restrictions on
expenditures of agency fees collected pursuant to union security
clauses governed by the Act. Neither has the Board done so. To
21a
the contrary, it stated in Detroit Mailers Union No. 40 (Detroit
Newspaper Publishers), 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 distinc-
tion here between dues which may be allocated for
collective-bargaining purposes and those earmarked 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 specifically
endorsed the argument that it is not an unfair labor practice for
labor organizations to spend nonmembers’ agency fees for
purposes other than collective bargaining, contract administration
and grievance adjustment.’
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 employ-
ment sector, that would not necessarily elevate that aspect of
agency fees to mandatory bargaining status. To the contrary,
several factors warrant the conclusion that it should remain a
nonmandatory one, excluded from the bargaining process.
¢
71 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 Section 10
of the Act. The general purposes of any system of jurisprudence would hardly
be promoted if administrative agencies were free ‘> advance one side of a
proposition to the highest tribunal while preserving the option to simultaneously
reach the contrary result in its own proceedings. In practice, the Supreme Court
has relied upon propositions of statutory interpretation and policy expressed to
it by the Board and its representatives, both in briefs, see, ¢.g., Retail Clerks
International Association, Local 1625 v. Schermerhorn, 373 U.S. 756, 755-756
(1963), and in oral argument. See, ¢.g., NLRB v. Gissel Packing Co., 395 U.S.
575, 594 (1969).
First, in reaching the results that it did in Street and in
Abood, the court never adopted a per se restriction. Unde: the
Railway Labor Act and in ihe public empioyment sect’ he
restriction on agency fee expenditures arises only forn —m-
bers who dissent from, or who object to, expenditure of th ces
for purposes other than collective bargaining, contract adr — .stra-
tion and grievance adjustment. Railway Clerks v. Allen, 3/3 U.S.
113, 118 (1963); Ellis v. Brotherhood of Ry. Clerks, supra, 446
U.S. at 445. "Any remedies. . . would properly be granted
only to employees who have made known to the union officials
that they do not desire their funds to be used for political causes
to which they object." Machinists v. Street, supra, 367 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
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 bargain-
ing would deprive individual employees of their right to make
that choice. "[D]issent is not to be presumed - it must affirma-
tively 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 U.S. 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 champion 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 U.S. 921, and a role which the Act does not contem-
plate being played by employers.
Third, to introduce this subject into the bargaining process
would yield multiple results in an area that necessitates uniformi-
ty. Good-faith difference can exist concerning whether particu-
i
lar expenditures do or do not serve the purposes of coilective
bargaining, contract administration and grievance adjustment.
That is amply illustrated, for example, by the disagreement over
convention expenditures that occurred in Ellis v. Brotherhood of
Ry. 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 inconceivable that the same expenditures may be included as
a bargaining-related expense in some negotiated agency fees
while 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 take of the bargaining
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 the dollars and cents amounts of agency fees,
that are to be applied to collective bargaining, contract adminis-
tration and grievance adjustment purposes. Of necessity, those
proportions or amounts would be based upon expenditures made
by labor organizations 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 three-year terms. See, General
Cable Corporation, 139 NLRB 1123 (1962). But, like other
institutions, expenditures of labor organizations 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 tailored to actual expenditures, particularly «s contracts
wend toward their termination dates. It would hardly minimize
the impact of labor instability upon interstate commerce to insist
on periodic reopening of contracts to correct the problem,
seeking to readjust agency fee amounts ih 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 expenditures.
In sum, the bargaining process is too broad and cumbersome
a vehicle to ensure that nonmembers’ agency fee amounts do not
exceed the purposes of collective bargaining, contract administra-
tion and grievance adjustment, 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 hearing
concern was voiced regarding the potential backpay liability of an
employer who discharged a nonmember for failing to satisfy that
portion of a contractually required agency fee exceeding the
amount devoted to collective 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 coniined
to situations where the employer has “reasonable grounds for
believing” that the request is not a lawful one. See, e.g., Valley
Cabinet & Mfg., Inc., 253 NLRB 98, 99 (1980), enfd. sub nom.
691 F.2d 509 (9th Cir. 1982), and cases cited therein. 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 “reasonable grounds for believing" that the nonmember had
voiced the required objection to paying an amount exceeding
representation costs and, further, that the nonmember's discharge
was being sought for failure to pay that excess amount.
Therefore, I conclude that a preponderence of the evidence
fails to establish that Social Services Union, Local 535, Service
Employees International Union, AFL-CIO has refused to provide
any information needed to implement an agreement concerning
a mandatory subject of bargaining and, accordingly, it has not
violated the Act in any manner alleged in the complaint.
Based upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDER®
I HEREBY ORDER that the complaint be, and it hereby is,
dismissed in its entirety.
Dated: July 24, 1987
/s/
William J. Pannier III
Administrative Law Judge
4
Sif this Order is enforced by a Judgment of a United States Court of Ap-
peals, the words in the notice reading "POSTED BY ORDER OF THE NA-
TIONAL LABOR RELATIONS BOARD" shall read "POSTED PURSUANT
TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS
BOARD."
Napa, Solano, and
Sonoma Counties, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SOCIAL SERVICES UNION, LOCAL 535,
SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL -- CIO
and Case 20-CB-7122
NORTH BAY DEVELOPMENT DISABILITIES
SERVICES, INC., d/o/a NORTH BAY
REGIONAL CENTER
ORDER CORRECTING
On June 22, 1988, the National Labor Relations Board
issued an Order Denying Request for Stay and Motion for
Reconsideration in the above-entitled proceeding in which there
is an inadvertent omission.
IT IS ORDERED that said Order is corrected by adding the
following to footnote 2.
"Accordingly, the motion to intervene is denied."
Dated, Washington, D.C., June 23, 1988.
By direction of the Board:
Joseph E. Moore
Deputy Executive Secretary
Napa, Solano, and
Sonoma Counties, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SOCIAL SERVICES UNION, LOCAL 535,
SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL -- CIO
and Case 20-CB-7122
NORTH BAY DEVELOPMENT DISABILITIES
SERVICES, INC., d/o/a NORTH BAY
REGIONAL CENTER
ORDER DENYING REQUEST FOR STAY AND
MOTION FOR RECONSIDERATION
On February 19, 1988, the National Labor Relations Board
issued a Decision and Order in the above-entitled proceeding.!
On March 22, 1988, the Charging Party filed a Request for Stay
and Motion for Reconsideration of the Decision and Order. In
its motion the Charging Party contends that the Board erred in
concluding that the Respondent did not violate Section 8(b)(3)
of the Act by its failure to provide the Charging Party informa-
tion requested in the course of bargaining concerning the amount
of agency fees.
The Board, having duly considered the matter,
IT IS ORDERED that the Charging Party's Request for Stay
and Motion for Reconsideration of the Decision and Order is
‘
1987 NLRB No. 129
denied as containing nothing not previously considered + the
Board and as lacking in merit.”
Dated, Washington, D.C., June 22, 1988.
By direction of the Board:
Joseph E. Moore
Deputy Executive Secretary
2On May 24, 1988, Karen Leslie Fuller, an employee of the Charging Party,
filed with the Board a Motion to Intervene asserting that she is a “necessary
party” in this proceeding under the Federal Rules of Civil Procedure. We note
"that the Federal Rules of Civil Procedure do not govern administrative
proceedings. See MJ. Santulli Mail Services, Inc., 281 NLRB No. 170 (Oct. 17,
1986), and cases cited therein; also see Sec. 10(b). Moreover, under the Act, as
amended, it has been held that the only necessary parties are the General
Counsel and the respondent(s). See Prestige Bedding Company, Inc., 212 NLRB
690, 698 (1974). Intervention by other parties is at the discretion of the Board.
See the Board's Rules and Regulations, 102.29; Oughton v. NLRB, 118 F.2d 486,
495-6 (3rd Cir. 1941) and, generally, National Licorice Co v. NLRB, 309 U.S.
350 (1940). Finally, we note that the unfair labor practice at issue in this
proceeding concerns the duty of the Respondent Union, as a part of its overall
duty to bargain collectively, to provide certain information requested by the
Charging Party Emplover. Such rights and obligations clearly attach only to the
parties to a collective bargaining relationship.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.