Food and Commercial Workers Local 4 (Safeway, Inc.)

National Labor Relations Board - Board Decisions

Oct 31, 2008

353 N.L.R.B. 469 (N.L.R.B. 2008)

FOOD & COMMERCIAL WORKERS LOCAL 4 (SAFEWAY, INC.)
353 NLRB No. 47
469
United Food and Commercial Workers Union, Local
4, affiliated with United Food and Commercial
Workers Union (Safeway, Inc.) and Pamela Bar-
rett. Case 19–CB–9660
October 31, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On May 20, 2008, Administrative Law Judge James
M. Kennedy issued the attached bench decision. The
General Counsel filed exceptions and a supporting brief,
and the Respondent filed cross-exceptions, a supporting
brief, and an answering brief to the General Counsel’s
exceptions.
This case involves the application of extant precedent
concerning employees who object to paying dues for
nonrepresentational activities pursuant to the Supreme
Court’s decision in Communications Workers of America
v. Beck, 487 U.S. 735 (1988) (Beck), and the sufficiency
of the financial information a union must provide to
these objectors to satisfy its duty of fair representation
under the Board’s decisions in California Saw & Knife
Works, 320 NLRB 224 (1995), enfd. 133 F.3d 1012 (7th
Cir. 1998), cert. denied sub nom. Strang v. NLRB, 525
U.S. 813 (1998) (California Saw), and Television Artists
AFTRA (KGW Radio), 327 NLRB 474 (1999), reconsid-
eration denied 327 NLRB 802 (1999), petition for review
dismissed 1999 WL 325508 (D.C. Cir. 1999) (KGW Ra-
dio). The judge found that the Respondent satisfied its
duty of fair representation by providing the Charging
Party, a Beck objector, with sufficiently verified financial
information and dismissed the complaint.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to adopt the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.2 Specifically, we reverse the
judge’s finding and conclude that the Respondent vio-
lated its duty of fair representation and therefore Section
8(b)(1)(A) by failing to provide the Charging Party with
sufficiently verified financial information.

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 We shall substitute a new Order and notice consistent with this de-
cision.
Background
The Respondent represents a unit of retail employees
at the Safeway store in Whitefish, Montana. The em-
ployees are covered by a collective-bargaining agree-
ment, which contains a union-security clause. Charging
Party Pamela Barrett began working at the Whitefish
store on April 4, 2007.3 On May 4, the Respondent noti-
fied Barrett of her rights to join or be a financial core
member of the Union and, in the latter case, to object to
paying union dues for nonrepresentational activities.
Subsequently, Barrett notified the Respondent that she
did not want to be a union member and that she wanted
to pay only the “agency fee.” She also requested a “veri-
fied financial disclosure of union expenditures.” On
May 11, the Respondent acknowledged Barrett’s request
for nonmember status and informed her that her dues
would be $31.50 per month, which represented 95 per-
cent of the current member dues rate. As support for this
reduction, the Respondent provided Barrett with a 1-page
financial statement, listing its chargeable and noncharge-
able expenses for the year ending December 31, 2006,
and stating its chargeable expense rate for representa-
tional activities to be 95 percent of its total expenses.
The Respondent also provided Barrett with the Interna-
tional Union’s 2005 audited financial statement, which
stated the International’s chargeable expense rate to be
85 percent. The Respondent reiterated this information
in a May 16 letter.
In her May 29 response, Barrett asserted that she “was
not provided with any information that explains or justi-
fies the calculation of this high agency fee.” She re-
quested that the Respondent provide her with her “proce-
dural rights,” including a verified financial disclosure
explaining the basis for the calculation of the “agency
fee.” On June 15, the Respondent responded to Barrett,
stating that it was a small local union and thus it did not
have many nonchargeable expenses. The Respondent
directed Barrett to the expenditure information it pro-
vided on May 11 and reasserted that her nonmember
dues would be $31.50 per month.
On December 14, apparently in an attempt to settle this
case, the Respondent sent Barrett a reimbursement check
for the difference between the dues she paid from May to
December based on the Respondent’s 95-percent charge-
able expense rate, and the amount she would have paid if
her dues had been calculated using the International Un-
ion’s 85-percent chargeable expense rate.4 In addition,

3 Unless otherwise noted, all dates are 2007.
4 The December 14 correspondence also stated that, effective Janu-
ary 2008, Barrett’s dues would be “calculated at 95% of the then cur-
rent dues rate.” However, both Barrett’s testimony at the hearing and
the General Counsel’s closing argument to the judge, indicate that,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD470
the Respondent acknowledged that when it provided its
statement of chargeable expenses on May 11, it did not
include a report showing that the figures in the statement
were reviewed by an accountant. The Respondent thus
provided the “Independent Accountant’s Report,” dated
February 19, which stated that an accountant reviewed
the expenditure statement, but that the information in-
cluded in the statement was based solely on the represen-
tations of the Respondent’s management. The report
further stated that it was “substantially less in scope than
an audit” and that the accountant expressed no opinion
regarding the financial statement as a whole.
Judge’s Decision
The complaint alleges that the Respondent violated
Section 8(b)(1)(A) of the Act by failing to provide Bar-
rett with an adequate explanation of the discrepancy be-
tween the International Union’s total amount for charge-
able expenses (85 percent) and the Respondent’s total
amount for chargeable expenses (95 percent). At the
hearing, however, much of the parties’ testimony and
arguments focused on whether the expenditure informa-
tion the Respondent provided to Barrett on May 11, cate-
gorizing its expenses and forming the basis for the 95-
percent chargeable expense rate, was sufficiently verified
pursuant to California Saw and KGW Radio, discussed
below.5 The judge thus did not pass on the complaint
allegation and instead addressed the unalleged issue of
whether the information provided to Barrett was suffi-
ciently verified. The judge found that the May 11 ex-
penditure information satisfied the Board’s verification
requirements. He noted that although the “Independent
Accountant’s Report” was based only on materials pro-
vided by the Respondent, the report adequately broke
down the Respondent’s expenses into chargeable and
nonchargeable categories. He thus found that the Re-
spondent did not violate its duty of fair representation
and dismissed the complaint.
Analysis
In Beck, the Supreme Court limited the dues and fees a
union can collect from objecting nonmember employees
under a contractual union-security clause to amounts
expended on activities germane to the union’s role as
collective-bargaining representative. In California Saw,
the Board held that a union breaches its duty of fair rep-
resentation if it fails to inform unit employees of their
Beck rights. Supra, 320 NLRB at 233. The Board also

beginning January 2008, Barrett’s dues were calculated using the Inter-
national’s chargeable expense rate, which, at that time, was 85 percent.
5 It is undisputed that the International Union’s financial statement
provided to Barrett on May 11 was sufficiently verified under Califor-
nia Saw and KGW Radio.
held that once an employee objects to paying dues for
nonrepresentational activities and seeks a reduction in
fees for such activities, the employee must be apprised of
the percentage of the reduction, the basis for the calcula-
tion, and the right to challenge the union’s figures. Id.
To ascertain whether the information given objectors
satisfies the union’s duty of fair representation, the Board
assesses whether the information is sufficient to enable
the objector to determine whether to challenge the dues-
reduction calculations. Id. at 239. In KGW Radio, the
Board required that such expenditure information be au-
dited “within the generally accepted meaning of the term,
in which the auditor independently verifies that the ex-
penditures claimed were actually made rather than ac-
cepts the representations of the union.”6 See KGW Ra-
dio, supra, 327 NLRB at 477. Alternatively, the Board
stated that dues reduction information provided by a lo-
cal union to a charging party can be based on a “local
presumption,” which permits a local union to presume
that its allocation of chargeable and nonchargeable ex-
penses is the same as that of its international affiliate.7
Id. at 477 fn. 15.
We initially conclude that the judge properly addressed
the unalleged issue of whether the Respondent provided
sufficiently verified expenditure information to Barrett
on May 11. Under well-established precedent, the Board
may find and remedy a violation in the absence of a spe-
cific complaint allegation if the issue is closely con-
nected to the subject matter of the complaint and has
been fully litigated. See, e.g., Pergament United Sales,
296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir.
1990). The complaint allegation involves the Respon-
dent’s failure to explain a perceived discrepancy in the
expenditure information it provided to Barrett. The unal-
leged issue addressed by the judge is closely connected
to this allegation. Specifically, whether there was a dis-
crepancy in the information the Respondent provided to
Barrett is subsumed by the more basic question of
whether the Respondent provided her sufficiently veri-
fied information, consistent with California Saw and
KGW Radio. In addition, the parties litigated this fun-
damental issue at the hearing. Much of the witnesses’
testimony centered around the verification of the expen-
diture information, and counsel for both parties focused
on the verification issue in their arguments to the judge.
We thus find that the judge properly considered the unal-

6 “Audit” describes a “service performed by which an accountant
undertakes an independent verification of selected transactions within
the major categories of financial information presented in the account-
ant’s report.” See KGW Radio, supra at 476.
7 The Respondent does not rely on a local presumption as a defense
in this case.
FOOD & COMMERCIAL WORKERS LOCAL 4 (SAFEWAY, INC.) 471
leged issue of whether the Respondent provided Barrett
with sufficiently verified expenditure information on
May 11. We disagree, however, with the result he
reached in doing so.
The judge found that the May 11 expenditure informa-
tion the Respondent provided to Barrett satisfied the
Board’s verification requirements under KGW Radio.
KGW Radio requires that an audit must be performed of
a union’s expenditure information provided to Beck ob-
jectors, and the auditor must independently verify that
the expenditures claimed were actually made rather than
accept the representations of the union. 327 NLRB at
477. The Respondent’s accountant here merely reviewed
the 2006 expenditure information provided to Barrett on
May 11, and the accountant’s report given to Barrett spe-
cifically provides that all the information in the financial
statement is the representation of the Respondent’s man-
agement. There is no evidence that the accountant did
more than rely on the Respondent’s representations in
preparing the report, such as independently verifying that
the expenses claimed were in fact made. It is thus clear
under KGW Radio that the Respondent did not provide to
Barrett sufficiently verified expenditure information.
See supra at 476–477. Accordingly, we reverse the
judge’s decision and find that the Respondent violated its
duty of fair representation and thus Section 8(b)(1)(A).8
ORDER
The National Labor Relations Board orders that the
Respondent, United Food and Commercial Workers Un-
ion Local 4, affiliated with United Food and Commercial
Workers Union, Butte, Montana, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Providing to nonmember objectors expenditure in-
formation that is neither sufficiently verified nor sup-
ported by a local presumption.

8 The General Counsel also argues that the Respondent violated
Sec. 8(b)(1)(A) by failing, as alleged in the complaint, to explain the
discrepancy between the Respondent’s and the International Union’s
total percentage amounts of chargeable expenses, and requests that this
issue be remanded to the judge for further consideration. We find a
remand unnecessary. Regardless of the Board’s disposition of that
issue, we would still find the more basic violation as set forth above.
Thus, any additional finding of a violation on remand would be cumu-
lative and would not materially affect the remedy.
In addition, we decline the Respondent’s request that the Board
modify its chargeable expense reporting requirements to be consistent
with the Department of Labor (DOL) reporting requirements set forth
in the DOL Form LM-2.
Further, we decline the Respondent’s request to change the termi-
nology the Board uses regarding dues objectors and to change the
wording of notice postings ordered in cases in which unions prevail.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) For all accounting periods covered by the com-
plaint, provide Pamela Barrett with information concern-
ing expenditures by the Respondent (or, in the event that
the Respondent relies on a local presumption, expendi-
tures by its parent union) that has been verified by an
independent auditor. If Barrett, with reasonable prompt-
ness after receiving this information, challenges the dues
reduction calculation for any such accounting period,
process such challenge as it would otherwise have done,
in accordance with the principles of California Saw &
Knife, 320 NLRB 224 (1995).
(b) Within 14 days after service by the Region, post
at its offices in Butte, Montana, copies of the attached
notice marked “Appendix.”9 Copies of the notice, on
forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD472
Choose not to engage in any of these protected
activities.
WE WILL NOT provide to nonmember objectors expen-
diture information that is neither sufficiently verified nor
supported by a local presumption.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL provide Pamela Barrett with information
concerning our expenditures (or, in the event that we rely
on a local presumption, expenditures by our parent un-
ion) that has been verified by an independent auditor.
UNITED FOOD AND COMMERCIAL WORKERS
UNION LOCAL 4, AFFILIATED WITH UNITED
FOOD AND COMMERCIAL WORKERS UNION
Richard Fiol, Esq., for the General Counsel.
Caren Sencer and David Rosenfeld, Esqs., of Alameda, Cali-
fornia., for the Respondent.
BENCH DECISION, CERTIFICATION AND ORDER
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in Whitefish, Montana, on April 29, 2008. It was
orally argued that day and the attached bench decision was
rendered immediately thereafter. The charge was filed on Sep-
tember 29, 2007, and amended on November 23, 2007, by Pam-
ela Barrett, an individual. The complaint issued January 31,
2007. Some technical amendments to both the complaint and
the answer was made at the hearing. The complaint alleges that
Respondent has violated Section 8(b)(1)(A) of the Act. Re-
spondent’s answer denies the commission of any unfair labor
practice.
After hearing the evidence on April 29, I determined that it
was appropriate for me to issue a bench decision under Board
rule Section 102.35(a)(10). Pursuant to Board Rule Section
102.45(a), I attach pages 130–140 of the transcript to this deci-
sion and certify that it (with corrections as shown), is an accu-
rate transcription of my decision as delivered.
Based on my findings of fact, including discrediting the
Charging Party’s testimony that she never received Respon-
dent’s letter of May 4, 2007 (GC Exh. 3), and my conclusion of
law that Respondent did not breach its duty of fair representa-
tion, I recommend the Board issue the following 1
[Recommended Order omitted from publication.]
130
(Off the record.)
JUDGE KENNEDY: On the record.
BENCH DECISION
JUDGE KENNEDY: Back on the record. The General Counsel

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
and the Respondent, having made oral arguments covering both
the factual and the legal issues in this matter have been—their
arguments have been carefully considered and I am [facially]
impressed with the General Counsel’s Case, but on further
analysis I’ve come to the conclusion that the General Counsel
has not made the Case and I’m going to make some findings
now describing why that is so.
Some of these findings are going to be pro forma and deal
with the normal things that have to be seen in a conclusionary
fashion. So, I’ll try to do this by paragraph number and if Dave
will keep me in line here with my numbering system, I’ll try to
do that. Okay.
1. The Unfair Labor Practice Charge was filed by Pamela
Barrett on September 29, 2007 and she amended that Charge on
November 23, 2007.
2. Safeway, Incorporated is a Delaware Corporation operat-
ing in Montana as a grocery chain.
3. Safeway is an Employer within the meaning of Section
2(2)2(6) and 2(7) and it’s in commerce based upon the plead-
ings.
4. The union is a labor organization within the meaning of
paragraph—Section 2, paragraph 5 of the Act and I
131
apologize for the pronunciation here but I find that Nicholai B.
Cocergine . . .
MR. COCERGINE: Cocergine, Your Honor.
JUDGE KENNEDY: Cocergine.
MR. COCERGINE: Yes, sir.
JUDGE KENNEDY: . . . is the President of Respondent and [its]
Chief Executive Officer.
[6.] The union represents a Bargaining Unit of—would guess
it’d basically be retail store employees and I’m not going to get
into the specifics of it because they’re set forth in paragraph 5
of the Complaint but they’re retail employees employed by
Safeway at its Whitefish, Montana grocery store and those
employees are all covered by a Collective Bargaining Contract,
which—let’s see. Did I lose my number here? I think it’s
number 7 here anyway.
Number 6 was the Unit description here.
7. At pertinent times the Collective Bargaining Contract had
a union security clause requiring membership of the employees
in the union within 30 days or—for meeting a financial obliga-
tion if they didn’t join the union[.] and that the—[pause]
8. That the union [expends] money that it receives as dues
and fees from its membership and from the employees it repre-
sents, which are both for representational activities and some of
these are for non-representational activities.
132
9. On May 4th the union sent a letter to the newly-hired Bar-
rett in Respondent’s Exhibit 3 and I should point out that I be-
lieve that she was hired on April 7th and notified of her right to
join or to become a financial core membership—a financial
core member and of her rights under the Beck Doctrine. [The
letter] also provided procedures to challenge the allocations and
the calculations that might have to be made under the Beck
doctrine.
FOOD & COMMERCIAL WORKERS LOCAL 4 (SAFEWAY, INC.) 473
10. I find that Barrett received that letter as it was sent in the
due course—in due course to her in the same manner that it was
sent to other new hires in other Bargaining Units represented by
the union.
11. About two weeks after she was hired she joined the un-
ion and signed a dues check-off form. That was 11.
12. In a May 9th letter she objected to payment of the fees
and dues for non-representational purposes and requested full
disclosure of verified financial expenditures.
13. By letter of May 11 the union acknowledged her resig-
nation and said she was considered to be a dues objector.
We’ll be off the record for just a moment here.
(Off the record.)
JUDGE KENNEDY: On the record.
The May 11 letter enclosed two documents, one of which
was a—is in evidence as General Counsel’s Exhibit 5, which is
a description of the—[a] statement of expenses and
133
allocations of expenses between chargeable and non-chargeable
expenses for Local 4, for Respondent and that’s a one-paged
document.
It also included a multiple-paged document from the Interna-
tional Union, the parent International Union, which covered
most of the same materials and had another breakout, a break-
out quite similar to that seen in General Counsel’s Exhibit 5. In
the letter the dues membership Clerk, Jamie DeLaurentis, stated
“We have included a statement of expenses and allocation of
expenses between chargeable expenses and non-chargeable
expenses of the UFCW, Local 4 for the year ending December
31, 2006.
Also enclosed is a statement of expenses from the United
Food and Commercial Workers International Union for year
ending December 31, 2005, which we received on March 19,
2007.” Ms. DeLaurentis explained that the International’s fig-
ures—breakdowns like this come on an unpredictable—come
in an unpredictable manner, so these were the latest—this was
the latest that they had—that the union had from the Interna-
tional.
And she described the columns A and B in those documents.
The column A is the total expenses for the respective union.
Column B is expenses chargeable to representational activities
and column C is the non-chargeable expenses, which are not
chargeable to representational activities. It is, of course,
134
the column C material, which would be deducted in some fash-
ion from the overall representational expenses.
She also stated in the letter that in her opinion or in the un-
ion’s opinion the statement of expenses refer[red] to fair –-
“represents fairly, in all material respects the total expenses of
UFCW, Local 4 and the allocation of expenses between charge-
able expenses and non-chargeable expenses for the year ending
December 31, 2006. These figures are from our final third
party reviewed end—reviewed year-end financials and you
have a right to challenge the allocation of representational and
non-representational expenses.”
14. On May 16 the union sent Ms. Barrett a letter advising
her that as a dues objector it had calculated her fee as—her
monthly fee as being $31.50 per month.
Did I say that was number 14?
COURT REPORTER: You’re on 15 now.
JUDGE KENNEDY: I’m at 15 now. Okay.
On May 29 Barrett claimed, by a letter, that she had not been
provided with information sufficient for her to make—to un-
derstand the fee as it had been calculated. She asked for her
procedural rights in that letter. However, I find that she had
been provided with those procedural rights in [the] May 4th
letter. She asked for financial disclosure for the—and for the
calculations of the fee[s] yet these had been provided also in the
May 11 letter and the GC-5, which was included in
135
the letter. She also asked for a verification of the figures by an
independent Certified Public Accountant. Now I want to com-
ment on that. Such a request or a demand [in] the way it was
characterized, is not an accurate statement of what the union
must provide to a dues objector.
Then in that letter Ms. Barrett demanded that she be relieved
of all dues obligations because in her opinion the information,
which had been provided to her was insufficient. In her—[H]er
statement in the letter was “If the union does not possess such
financial disclosure, or if it is not provided to me, then you
have no right to collect any fees from me as a condition of em-
ployment.”
16. The union responded by letter of June 15 that—this
again by Ms. DeLaurentis that—essentially that the union was
small and had very few non-chargeable expenses and so that
was the explanation for the high rate that the—of 95%, a rate
that had been set forth in the—in GC-5 and it reiterated that she
was getting a discount of $31.50 per month instead of the
$33.00 per month charged full members.
She also noted in that letter that there had been a CPA letter
included in the International’s submission.
17. On December 14th the union issued Barrett a refund in
the lower amount, which essentially is in a refund of $29.80.
She refused to accept the check. I find that this refund was
entirely unnecessary. It seems to have been a—based on a
136
cautionary belief that somehow there might have been some-
thing wrong with its figures found in GC-5. I do not find that
to be the case and I believe that General Counsel’s Exhibit 5 is
a fair representation and fairly provides Ms. Barrett with infor-
mation on which to take further steps if she chooses. In any
event, as I understand it the parties have stipulated, I guess, that
Barrett refused to accept the check
18. In the December 14th transmittal letter, let’s see, there
was included an independent Public Accountant’s review report
dated December 31, 2006. That was the most recent review,
which had been conducted [by] an outside agency. That firm is
the Newland and Company, apparently an accounting firm in
Butte, Montana.
I guess, Ms. Sencer, that the heading there under that inde-
pendent Accountant’s report from Newland I read that to say
CPA’s but it’s kind of curved in the Xerox. It’s hard for me to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD474
[read] it but I guess you assert that they are indeed Certified
Public Accountants.
MS. SENCER: Yes.
JUDGE KENNEDY: Okay. That’s all I really need.
Now I find, though, [what] the Newland Company did on
February 19, 2007 was not an audit in the generally used sense
as the accountancy industry would use it. Nevertheless, it re-
flects this Accountant’s—accountancy firm’s view that there is
no reason to modify the financial statements as they
137
had been written and therefore, I think this is a fair statement of
their assessment that things are okay with the material set forth
therein and it is from that, of course, that General Counsel’s
Exhibit 5 was created. In this regard I observe that all financial
reviews and all audits rely on material provided by the man-
agement of the enterprise being audited and indeed the
Newland letter so states. They acknowledge that they are less
in scope than -- in scope than an audit and, of course, they say
the objective[. . .] Well[…] And they weren’t suggesting they
were performing an audit but they were making the review that
they did and they didn’t have any doubts about the accuracy of
the material at that point.
So, therefore, I find that because General Counsel’s Exhibit
5 is based on the material set forth in the independent Account-
ant’s report that General Counsel’s Exhibit 5 adequately did
break down the types of expenditures which were made and
shows the—how—shows the categories, which are chargeable
to representational activities and which are not. Now, the only
doubt that that would leave is whether or not the figures them-
selves are accurate and that is, of course, beyond the obligation
of the Auditor. That is, in fact, the obligation of the union itself
and the figures there may be challenged under the Beck Rules
and that—so far as I know Ms. Barrett has not challenged these
figures but she certainly has had sufficient information that she
could if she chose and procedures, of
138
course, have been provided to her. (I know she says she didn’t
receive the letter of May 4th, which describe those matters but
as I said I find that she did receive it and I’m sure she can get
another copy of it [and] the union would provide it for her if
she requested it.)
So, therefore, in conclusion as a matter of law I find that the
union has not breached the duty of fair representation regarding
Barrett’s—regarding Barrett by assigning to her a monthly
due[s] figure of $31.50. The union’s treatment here of Barrett
was fair under the doctrine set forth in Beck, California Saw
and KGW Radio.
As a final comment on this, I know that Respondent made an
argument with respect to whether the NLRB’s General Counsel
was seeking a different level of review [than]—that required by
Department of Labor regulations—when the unions file their
LM2 reports annually—and I’d like to point out that I think that
given the fact that the LM2’s are verified by the union and that
the documents themselves contain material that is later and
maybe is the same as the material that’s set forth in the objec-
tive breakdowns and that sort of thing, I think that sufficient
verification has indeed been made that those numbers are accu-
rate. Of course, they’re in a different format, so it may be a
little bit confusing but I do not find that there’s anything wrong
with what the union did here with respect to using those num-
bers or referring anybody to those
139
numbers.
This is not to say that I disagree with the General Counsel
when he says that the union can’t put the burden on an em-
ployee to go chasing the DOL numbers. I think the DOL num-
bers and the documents there are publicly available but I don’t
think that an individual employee is obligated to go hunt them
down for him or herself. Still, I don’t see that holding the—
that the Labor Board, under its Act, has any greater right to a
higher standard of financial care than does the Department of
Labor.
So, if the union meets the standard that is set forth by the
Department of Labor of care with respect to the financials it
has, I think, adequately verified, if you will, what needs to be
verified and meets the duty of care to an employee when it
meets that same level of care. I can’t see why there would be
any difference in that.
Now, I’m also going to comment, however, that, [this] is not
really a finding that I need to make here in terms of the dis-
missal but I just would observe the argument—that the union’s
argument here is more persuasive than that of the General
Counsel. All right.
That concludes my Decision and I will, as I described off the
record, issue a—when the transcript becomes available I will
rather quickly issue a certification of transcript and Decision
and at that time anybody who chooses is free to file
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an Appeal with the Board under the normal review procedures.
I will—I think we—there’s a due date that comes out with the
order—showing what the due date for that will be. I don’t have
to state it here. All right.
Does anybody think I need to be—clarify anything in any of
my findings? Nobody saying [anything], I will declare the
Hearing closed. Off the record.
(Whereupon, the Hearing in the above-entitled matter was
closed.)