Unpublished Disposition, 841 F.2d 1128 (9th Cir. 1988)

MEMORANDUM^* 

BACKGROUND

This appeal consists of two cases arising out of NLRB adjudications against the Communications Workers of America, Local 11509 (the "Union"). The cases, which we consolidate, involve unrelated actions taken by the Union against two employees who were not union members at the time of the incidents.

In one case, the Union instituted disciplinary proceedings against Sharon Jones for crossing a picket line. In response, Jones filed an unfair labor practice charge against the Union for proceeding against a non-member. The Board affirmed the ALJ's finding that the Union had violated 29 U.S.C. § 158(b) (1) (A) (1982) and entered an order requiring the Union to cease the unlawful conduct and to take certain remedial action towards Jones. The Union petitions for review of that order, and the NLRB cross-applies for enforcement.

In the other case, the Union issued a request for termination of Joseph Donahue's employment when his dues payments became delinquent. Donahue filed an unfair labor practice charge against the Union for failing to give him notice of his delinquency and for failing to allow him an opportunity to pay the amounts owed. The NLRB affirmed the ALJ's conclusion that the Union had violated 29 U.S.C. § 158(b) (2) and (b) (1) (A) (1982), and it issued an order which required, in part, that the Union desist from the unlawful conduct and rescind in writing the request for discharge. The Union petitions for review of the order, and the NLRB cross-applies for enforcement.

The appeals are timely, and we have jurisdiction pursuant to 29 U.S.C. § 160(e) and (f) (1982). We affirm the NLRB's decisions and orders and grant enforcement.

DISCUSSION

In this case, the Union first contends that the NLRB was estopped from proceeding against it because, on past occasions, the NLRB has dropped similar charges against the Union once the Union terminated its unfair labor practice. This argument has no merit. The conduct of the NLRB toward the Union in previous instances has no bearing on its authority in this case. "We cannot by incorporating the judicial concept of estoppel ... render the [NLRB] powerless to prevent an obvious frustration of the [NLRA's] purposes." Wallace Corp. v. NLRB, 323 U.S. 248, 253 (1944), reh'g denied, 324 U.S. 885 (1945).

The Union next argues that this case is moot in light of the Union's dismissal of charges against Jones. This, too, is meritless. First, the dismissal does not, in and of itself, render the case moot because the dismissal did not fully remedy the Union's wrongdoing. The Union has not demonstrated compliance with the affirmative provisions of the Board's order; specifically, there is no evidence that it has dismissed the charges against Jones or that it has expunged from its records any reference to those charges. Nor is there any indication that the Union posted appropriate notice of the dismissal of charges. Until such notice is posted, the incident might well have the effect of coercing non-members to submit to union rules, in hindrance of their statutory right to forgo union membership.

Moreover, case law is settled that the mere cessation of the unfair labor practice, or compliance with an NLRB order, does not necessarily render a case moot. NLRB v. Int'l Union of Elevator Constructors, Local No. 8, 465 F.2d 974, 976 (9th Cir. 1972). Rather, " [a]n enforcement action is mooted only when a party can establish that 'there is no reasonable expectation that the wrong will be repeated.' " Id. (citations omitted). The Union has failed to make this showing. We conclude that neither this appeal nor the NLRB's administrative proceedings are rendered moot, or defeated by principles of estoppel.

We affirm the NLRB's finding that the Union violated section 8(b) (1) (A) of the Act. Although the Union asserts that it held a good faith belief that Jones was a union member, it fails to cite any case law indicating that such a belief constitutes a defense to this charge. Even if good faith belief were a defense, the argument is unconvincing here, as the evidence available to the Union was too meager to support any sound inference that Jones was, indeed, a union member. Moreover, the asserted defense is completely undermined by the fact that, the day after Jones received notice of the charges against her, she notified the Union's executive vice-president, Stegall, that she was not a union member. At that point it was unreasonable for the Union to continue to assume that Jones was a union member, without further substantiating evidence.

In this case, the Union's first defense is that Donahue received notice of his dues delinquency. This notice, it claims, consisted of a copy of the discharge request memorandum sent by the Union to its parent, National. Whether Donahue actually received this copy is disputed. However, even if he received it, the form memorandum could not have satisfied the Union's fiduciary obligations to Donahue. Adequate notice must afford the employee an opportunity to pay the delinquent dues, and it must also notify him that his failure to pay will result in discharge. See NLRB v. Distillery, Rectifying, Wine and Allied Workers Int'l Union, 642 F.2d 185, 186 (6th Cir. 1981); Western Publishing Co., 263 NLRB 1110 (1982). Donahue was not given the opportunity to avoid termination by satisfying his delinquency; instead, the memorandum requested termination. Thus, the memorandum, if actually sent to Donahue, hardly sufficed as legal notice.

The Union next argues that this case is moot because, subsequent to its receipt of Donahue's payment, the Union advised National's representative, Pearce, that Donahue had satisfied his delinquency. This action, however, did not fully cure its earlier wrongdoing. The Union took no steps to rescind the discharge request. It did not contact Donahue's employer, and it failed to direct Pearce, who was acting as its agent, to notify the employer that it no longer sought Donahue's termination. Moreover, the fact that Donahue was never discharged is irrelevant; the unfair labor practice in this case is not that the Union succeeded in causing Donahue's discharge, but that it attempted to cause his discharge without affording him notice and opportunity to pay his dues. See 29 U.S.C. § 158(b) (2).

Finally, the Union asserts that National is a necessary party to the action. We disagree. We view the relationship between the Union and National, in the context of this action, as an agency one. The evidence indicates that it was the Union's practice to contact National when dues were delinquent and request National to seek termination of employment. Pearce was clothed with the apparent authority to contact the employer and request termination. Thus, the Union is responsible for Pearce's relaying the Union's request for termination, as well as his subsequent failure to rescind the request upon Donahue's payment of dues. See Laborers and HOD Carriers Local No. 341 v. NLRB, 564 F.2d 834, 839 (9th Cir. 1977) (applying common law principles of apparent authority to hold Union responsible for individual's actions); NLRB v. Local Union No. 3, 467 F.2d 1158, 1159 (2d Cir. 1972). Because Pearce was acting on behalf of the Union, there is no basis for asserting that National is a necessary party to this action.

In conclusion, we find that this action is not moot and that all proper parties are before the court. We affirm the NLRB's finding that the Union violated 29 U.S.C. § 158(b) (1) (A) and (b) (2) and, in so doing, reject petitioner's other contentions.

The Decisions and Orders of the NLRB in both actions are affirmed and enforced.