Teamsters Local 443 (Connecticut Limousine Service, Inc.)

National Labor Relations Board - Board Decisions

Oct 2, 1997

324 N.L.R.B. 633 (N.L.R.B. 1997)

633
324 NLRB No. 105
TEAMSTERS LOCAL 443 (CONNECTICUT LIMOUSINE SERVICE)
1 The complaint does not allege that this clause is facially invalid.
2 The 13 categories into which expenditures were initially broken
down were: (1) per capita tax/fees, fines and assessments; (2) ex-
penditures ‘‘to affiliates’’; (3) net payroll, officers, and expenses; (4)
net payroll, employees and expenses; (5) office and administrative
expenses; (6) education and publicity; (7) professional fees; (8) ben-
efits; (9) contributions; (10) ‘‘other expenses’’; (11) direct taxes;
(12) withholding taxes; and (13) depreciation expenses. The cat-
egories of per capital tax, office and administrative expenses, edu-
cation and publicity, professional fees, benefits, contributions and
‘‘other expenses’’ were further broken down in the attached sched-
ules. For example, office and administration expenses were broken
down into 17 subcategories, including building maintenance, rent,
supplies and printing, postage, and telephone. The category of
‘‘other expenses’’ was broken down into 12 subcategories, including
stewards expense, strike expense, and severance payments.
International Brotherhood of Teamsters, Local 443,
AFL–CIO (Connecticut Limousine Service,
Inc.) and Dale E. Peterson. Case 34–CB–1763
October 2, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On August 9, 1994, Administrative Law Judge
Leonard M. Wagman issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party have
filed answering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions and to adopt the rec-
ommended Order only to the extent consistent with
this decision.
At all times relevant to the complaint, the Respond-
ent and Connecticut Limousine Service, Inc. (the Em-
ployer) were parties to a collective-bargaining agree-
ment containing the following union-security provi-
sion:1
As a condition of employment, all employees cov-
ered by this Agreement shall, after 30 days fol-
lowing the date of execution of this Agreement,
or in the case of new regular employees, after 30
days following the date of hiring, become mem-
bers of the Union in good standing and remain
members of the Union in good standing during
the term of this Agreement. For purposes of this
requirement, good standing is defined as the
prompt tender of the periodic monthly dues, ad-
ministrative dues, and the initiation fees uniformly
required as a condition of acquiring or retaining
membership in the Union.
On or about July 23, 1993, the Charging Party and
11 other members of the Respondent employed by the
Employer and covered by the union-security provision
resigned their union memberships. These employees
also notified the Respondent that, under Communica-
tions Workers v. Beck, 487 U.S. 735 (1988), they ob-
jected to the Respondent’s alleged use of their dues
and fees for activities unrelated to collective bargain-
ing, contract administration, or grievance adjustment.
The complaint alleges, and the judge found, that the
Respondent did not provide these employees with suf-
ficient information in response to their Beck objections,
and that the Respondent unlawfully charged them for
organizing and out-of-unit legal expenditures.
I. SUFFICIENCY OF THE INFORMATION PROVIDED
TO THE OBJECTORS
A. The Respondent’s Response to the Objections
After receiving the objectors’ resignations, the Re-
spondent, by letter dated August 24, advised the objec-
tors that their dues would be reduced by 4.64 percent.
In other words, the Union informed the objectors that
they had to pay 95.36 percent of the dues paid by non-
objecting unit employees. The Respondent also pro-
vided the objectors with copies of a separate letter de-
scribing the Respondent’s policy and procedures re-
garding dues objections. This letter explained that non-
members of the Union who objected to the payment of
full Union dues would be charged a fee ‘‘based on the
Union’s expenditures for those activities or projects
normally or reasonably undertaken by the Union to ad-
vance the employment-related interests of the employ-
ees it represents.’’ The letter further specified that the
Respondent considered such ‘‘chargeable’’ expendi-
tures to include:
those for negotiations with Employers enforcing
Collective Bargaining Agreements; handling em-
ployees’ work related problems through the griev-
ance procedure before administrative agencies, or
at informal meetings; organizing employees of
competing Employers in the Industry; Union gov-
ernance and administration; litigation related to
any of the above, and the cost of economic activi-
ties in support of chargeable expenditures.
Thereafter, in response to a letter from the objectors
seeking proof of the Union’s expenditures, the Re-
spondent furnished them with an accounting prepared
by its accountant. The accounting consisted of a break-
down of the Union’s expenditures into 13 categories
taken from its LM-2 report to the Department of Labor
for 1992, together with attachments further breaking
down expenditures in 7 of those categories.2 Expendi-
tures in each category and subcategory were in turn
broken down into ‘‘chargeable’’ and ‘‘non-charge-
able’’ amounts. The breakdowns did not, however,
specify which of the expenditures had been incurred
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634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 During the 1992 calendar year, the Union represented 152 other
bargaining units in addition to the bargaining unit at Connecticut
Limousine.
4 These are the Eastern Conference of Teamsters; Teamsters Joint
Council #64; New England Bakery Committee; New England
Freight Committee; and Building Trades Council.
5 In his answering brief, the General Counsel suggests that the Re-
spondent’s disclosure of certain information to the objecting employ-
ees was untimely. Specifically, the General Counsel refers to ‘‘dila-
tory tactics’’ by the Respondent in complying with the employees’
requests. The complaint does not specifically allege that the Re-
spondent violated the Act by delays in furnishing the requested in-
formation, and there is no exception to the judge’s failure to find
a violation based on the asserted untimeliness of the Respondent’s
compliance. Accordingly, we find no violation in this regard.
specifically in representing employees in the Connecti-
cut Limousine bargaining unit.3
B. Complaint Allegations and the
Judge’s Decision
The complaint alleges that the Respondent violated
Section 8(b)(1)(A) by failing to provide the objectors
with a detailed apportionment of its expenditures for
representational and nonrepresentational expenditures
for the calendar year 1992, to break down those ex-
penditures on a unit-by-unit basis, and to have the
breakdown verified by an independent auditor. The
complaint further alleges that the Respondent failed to
provide the objectors with an adequate explanation of
expenditures for officers’ and employees’ salaries and
expenses and for per capita payments to five adminis-
trative components of the Teamsters International
Union listed on the separate per capita tax schedule at-
tached to the Respondent’s accounting.4 Finally, the
complaint alleges that by failing to provide any expla-
nation of how it spent administrative dues collected
from employees, or of any expenditures it may have
incurred for political, legislative, or lobbying activities,
the Respondent also violated the Act.
The judge found merit in these allegations. In gen-
eral, the judge faulted the Respondent’s accounting for
failing, in a sufficiently detailed manner, to break
down its representational expenses, to do so by indi-
vidual bargaining unit, and to have the accounting
verified by an independent auditor. In addition, the
judge specifically found that the Respondent violated
Section 8(b)(1)(A) by failing to show why all of its of-
ficers’ and employees’ wages and expenses are charge-
able to objectors; failing to explain why certain per
capita taxes detailed in its accounting are chargeable
and others are nonchargeable; failing to show what
moneys it spent on political, legislative, or lobbying
activities; and failing to tell the objectors how it spent
the weekly administrative dues referred to in the
union-security provision of the parties’ collective-bar-
gaining agreement.5
The Respondent excepts, arguing that it has pro-
vided the objectors with sufficient information to en-
able them to decide whether to challenge the basis of
the agency fee reduction. It also argues that any detail,
beyond the information it provided in its accounting
that could be derived from its LM-2 report, would
have no value to the objectors in evaluating the fee re-
duction. Respondent contends that each of the specific
categories of expenditures in which the judge found
the Respondent’s disclosure to be deficient are ade-
quately set forth in its accounting, save those cat-
egories for which there were no expenses to report.
The Respondent also contends that the judge erred in
requiring unit-by-unit breakdown and disclosure of
representational versus nonrepresentational costs and
verification of its accounting by an independent audi-
tor.
We disagree with the judge that the duty of fair rep-
resentation imposes at least certain of the disclosure
obligations with which he found the Respondent did
not comply. We therefore reverse the judge’s decision
to the extent that it is inconsistent with the findings
and conclusions set forth below.
C. Discussion
1. Major category disclosure
In California Saw & Knife Works, 320 NLRB 224
(1995), the Board held that the standard by which a
union’s conduct is measured when it exacts funds from
objecting nonmembers under a union-security clause is
the duty of fair representation. Id. at 228–230. When
a nonmember objects to a union’s use of dues or fees
for nonrepresentational purposes, the union must re-
duce the fee so that it reflects representational expendi-
tures only. The union also must apprise the objector of
the percentage of the reduction, the basis for the cal-
culation, and that there is a right to challenge the cal-
culation. Id. at 233. To satisfy the duty of fair rep-
resentation, the information provided to the objector
regarding the basis for the calculation of the reduced
fee must be ‘‘sufficient . . . to enable objectors to de-
termine whether to challenge’’ the calculation. Id. at
239.
Although a union must give objectors sufficient in-
formation for them to make a reasonable judgment
whether to challenge the union’s fee calculation, the
union need not, at the prechallenge stage, establish that
the figure is justified. That burden is created only if
and after the employee files a challenge to that figure.
As the U.S. Court of Appeals for the Sixth Circuit ob-
served in Tierney v. Toledo, 917 F.2d 927, 935 (6th
Cir. 1990):
Ensuring adequate disclosure to enable a non-
member to object, however, is materially different
from determining whether particular expenditures
are chargeable or whether the calculations and
methodology therefore are acceptable. The latter
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635TEAMSTERS LOCAL 443 (CONNECTICUT LIMOUSINE SERVICE)
6 Although the court in Tierney used the term ‘‘object,’’ it is clear
from the context that the court was referring to postobjection ‘‘chal-
lenges’’ to a union’s percentage figure. That is, the issue is whether
the Union has supplied enough information to permit the objector-
employee to ‘‘challenge’’ that figure.
7 As explained in subsections 2 and 4d below, issues pertaining to
the information that the Respondent provided objectors concerning
weekly administrative dues and audit and verification procedures
will be remanded to the administrative law judge.
8 Contrary to the Respondent’s assertion (Br. at 7), we do not view
any conduct by the objectors as having already invoked a challenge
proceeding.
questions, to be sure are not presented at this
stage of the review. . . . [T]hese issues are for
the arbitrator in the first instance once a non-
member has objected to the propriety of the par-
ticular agency fee.
See also Abrams v. Communications Workers of Amer-
ica, 59 F.3d 1373, 1381 (D.C. Cir. 1995); Dashiell v.
Montgomery County, 925 F.2d 750, 768 (4th Cir.
1991); Price v. International Union, UAW, 927 F.2d
88, 94 (2d Cir. 1991).6 Therefore, we do not agree
with the judge that the Respondent’s postobjection dis-
closure was inadequate because the accounting itself
did not establish conclusively how each listed expendi-
ture related to collective bargaining, contract adminis-
tration, or grievance adjustment.
In California Saw, the Board held that a union satis-
fies its postobjection disclosure obligations to objectors
when it provides them with information disclosing the
union’s ‘‘major categories of expenditures’’ and des-
ignating which expenditures or portions thereof it
deems to be representational and therefore chargeable
to them. 320 NLRB at 239. We find that the informa-
tion provided by the Respondent to the objectors here
meets that standard with respect to all major categories
of expenditures, save possibly any that may have per-
tained to the Respondent’s use of weekly administra-
tive dues or audit and verification procedures.7 In re-
sponse to the objectors’ letters, the Respondent sent a
financial accounting which designated the expenditures
that it had incurred during the previous calendar year
and the percentage of each expenditure that it claimed
was chargeable. The accounting that the Respondent
furnished the objectors, together with the supporting
schedules further breaking down its expenditures, is in
our view sufficiently detailed to comport with Califor-
nia Saw’s requirement of ‘‘major category’’ informa-
tion.
With the information they received from the Re-
spondent, the objectors were sufficiently informed to
make a decision whether to either accept and pay the
reduced fee calculated by the Respondent, or contest
the fee in a challenge proceeding ‘‘where the Respond-
ent will bear the burden of proving that [its] expendi-
tures are chargeable to the degree asserted.’’ CWA
Local 9403 (Pacific Bell), 322 NLRB 142, 144
(1996).8 We therefore reverse the judge’s finding as to
this issue and dismiss the allegations relating to the
adequacy of the union’s explanation of its expendi-
tures, except as to weekly administrative dues.
2. Administrative dues
The complaint alleges that the Respondent failed to
inform objectors how it spent weekly administrative
dues—a financial obligation that, according to the con-
tractual union-security and dues-checkoff provisions, is
collected separately from the regular monthly dues.
The judge found that the failure to provide such an ex-
planation violated Section 8(b)(1)(A).
California Saw requires that a union provide infor-
mation to objectors as to how it spends all periodic
dues and initiation fees exacted under a union-security
clause that are uniformly required as a condition of ac-
quiring or retaining membership. See California Saw,
supra, 320 NLRB at 233, 239. However, we cannot de-
termine from the record in this case whether the Re-
spondent has charged employees in the bargaining unit
for weekly administrative dues during the relevant ac-
counting period, although the contractual union-secu-
rity and dues-check provisions imply that it has, and
if so: (1) whether it has reduced the administrative
dues charged to the objectors by the same percentage
that it reduced their regular monthly dues, and (2)
whether the expenditures listed in the accounting pro-
vided by the Respondent include its expenditures of
administrative dues. We therefore find it appropriate to
remand this allegation to the judge for further proceed-
ings, including, if necessary, a reopening of the hear-
ing to adduce additional evidence, and for the issuance
of a supplemental decision containing findings of fact,
conclusion of law, and a recommended supplemental
Order. Pending the judge’s supplemental decision on
remand, we defer consideration of the allegation that
the Respondent failed to provide sufficient information
to objectors concerning weekly administrative dues.
3. Unit-by-unit disclosure
Under California Saw, a union has no duty to either
account for its expenditures on a unit-by-unit basis,
320 NLRB at 237, or, as a corollary, to provide unit-
by-unit accounting to objectors. Id. at 240, fn. 81. See
also Pacific Bell, supra. Accordingly, we find that the
Respondent did not violate Section 8(b)(1)(A) by fail-
ing to break down expenditures to objectors on a unit-
by-unit basis.
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636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Member Higgins would seek the judge’s view on the legal issue.
4. Specific category disclosure
a. Payroll expenses for officers and employees
We also reject the judge’s findings with respect to
the degree of specificity required on the accounting for
certain individual categories of expenditures. Indeed,
the Supreme Court has recognized that, even under the
more exacting strictures of the First Amendment, a
‘‘[U]nion need not provide nonmembers with an ex-
haustive and detailed list of all its expenditures
. . . .’’ Chicago Teachers’ Union Local 1 v. Hudson,
475 U.S. 292, 307, fn. 18 (1986). The General Counsel
does not specifically allege that the Respondent has
used its payroll expense category to conceal non-
chargeable expenditures so as to render it an impermis-
sible ‘‘mixed’’ category, i.e., an accounting category
containing both chargeable and substantial noncharge-
able expenditures. To the extent that the General
Counsel’s position on this issue can be construed as an
attack on the sufficiency of information concerning
what he infers to be the Respondent’s use of a mixed
category, we note that California Saw approved the
limited use of mixed categories:
Both the Seventh Circuit in Gilpin [v. American
Federation of Federal, State, and Municipal Em-
ployees, 875 F.2d 1310 (7th Cir. 1989)] and the
Fourth Circuit in Dashiell [v. Montgomery Coun-
ty, 925 F.2d 750 (4th Cir. 1991)] found the lim-
ited use of mixed categories to be permissible
under constitutional scrutiny in the public sector
context, citing: (1) the impracticality of providing
to employees all backup data for such mixed cat-
egories; (2) the slight burden imposed on an ob-
jector to challenge such mixed categories by
merely writing a letter to the union; and (3) the
fact that on such challenge the union bears the
burden of demonstrating before an independent
arbitrator that its calculations with respect to
mixed categories are justified. Id. We find these
considerations to be equally applicable to the lim-
ited use of mixed category expenditures in the
NLRA context, and consistent with the central ob-
jective of providing objectors with sufficient in-
formation to decide whether there is any reason to
mount a challenge.
320 NLRB at 240. Thus, to the extent that the Re-
spondent may have made limited use of mixed cat-
egories in reporting its payroll expenses for officers
and employees, we find that it has not violated the
duty of fair representation.
b. Per capita tax
With respect to the per capita tax category of ex-
penditures, we find that the Respondent has complied
with its disclosure obligations by providing objectors
with the breakdown of chargeable and nonchargeable
expenditures and attaching a separate schedule explain-
ing the specific organizational unit of the International
to which the per capita tax was paid. The Respondent
has not only informed the objectors of the amount of
expenditures incurred in this major category and the
chargeable and nonchargeable allocations, but also,
through the schedule attachment, has provided a break-
down sufficient to enable an objector to decide more
intelligently whether to challenge those allocations.
c. ‘‘Zero’’ categories
The judge found that a union must affirmatively in-
form objectors of the fact that no money was spent on
political, legislative, and lobbying activities. We dis-
agree. California Saw’s requirement that objectors be
given sufficient information to decide whether there is
reason to challenge their union’s calculation is satisfied
when an employee receives information concerning ex-
penditures and the proportions of those expenditures
which are claimed to be representational. When no ex-
penditure is incurred, the union has no reason to report
that fact to the objector. The objector can infer from
the silence that no money was spent. If the objector
disagrees, a challenge can be filed.
d. Verification
Finally, the complaint alleges that the Respondent
violated Section 8(b)(1)(A) by failing to have the in-
formation that it provided to the objectors verified by
an independent auditor. On September 23, 1997, the
U.S. Court of Appeals for the District of Columbia
Circuit issued an opinion in Ferriso v. NLRB, No. 96-
1321, concerning the type of audit that a union is re-
quired to perform to verify information regarding the
major categories of expenditures that are furnished to
a Beck objector. In light of the court’s decision, we
deem it appropriate to remand this allegation also to
the judge for further proceedings, including, if nec-
essary, a reopening of the hearing, to adduce additional
evidence concerning the type of audit performed for
the Respondent and the verification procedures that
were used, and to make the necessary supplemental
findings of fact for the Board to resolve the legal
issues raised in the D.C. Circuit’s decision. Unlike the
other remand instructions in this decision, however, we
do not request the judge to make supplemental legal
recommendations and conclusions of law with respect
to this allegation, and we defer resolution of these
issues pending the judge’s supplemental decision.9
II. CHARGEABILITY ISSUES
The judge found that the Respondent charged objec-
tors for organizing expenses and for all of its legal fees
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637TEAMSTERS LOCAL 443 (CONNECTICUT LIMOUSINE SERVICE)
10 Member Higgins does not reach the issue of whether a union
can properly charge unit employees for litigation expenses which are
incurred outside of the unit, but which are germane to the represen-
tation of unit employees. In this regard, he notes that the General
Counsel alleged that the Respondent sought dues and fees for ‘‘liti-
gation for nonrepresentational activities.’’ Accordingly, he would re-
mand only for a determination of whether litigation expenses were
related to nonrepresentational activities. If they were, they would be
nonchargeable irrespective of the unit in which they were incurred.
11 The General Counsel also raised a number of other arguments
in which he distinguishes Ellis on the basis of the facts of that case,
the involvement of ‘‘state action’’ under the RLA, and the pertinent
legislative history of the RLA.
for calendar year 1992, including out-of-unit legal ex-
penses, and continued to charge for those activities
during calendar year 1993. The Respondent’s account-
ing for 1992 shows that $38 was spent on organizing,
but that amount represented only the expense of a spe-
cial printing of campaign literature and did not include
salaries and administrative expenses of organizers paid
by the Respondent. The parties did stipulate, however,
that ‘‘there were indeterminate amounts of time spent
by persons employed by the Union in its organizing.’’
Total payments made to employees of the Respondent
are also reported in the Respondent’s LM-2 reports
filed with the U.S. Department of Labor during cal-
endar years 1992 and 1993, but without specifying
how much, if any, of those payments were for organiz-
ing.
The parties also stipulated that, of the $55,714 for
professional expenses shown as chargeable on the Re-
spondent’s 1992 accounting, $27,950 represented legal
and litigation expenses, composed of 11 monthly re-
tainer payments of $2500 and a separate charge of
$450 for representing the Respondent in a criminal
matter. During 1993, out of $55,756 in professional
expenses shown as chargeable, $30,000 were for legal
expenses, based on a monthly retainer of $2500. The
Respondent did not record its expenditures for legal
services on a unit-by-unit basis.
The Board in California Saw held that:
[A] union does not breach its duty of fair rep-
resentation by charging objecting employees for
litigation expenses as long as the expense is for
‘‘services that may ultimately inure to the benefit
of the members of the local union by virtue of
their membership in the parent organization.’’
[(Member Cohen dissenting) (citation omitted)
320 NLRB at 239.]
In accordance with California Saw, we find it appro-
priate to remand the litigation expense issue to the
judge to determine whether such fees can be shown to
be for ‘‘services that may ultimately inure to the bene-
fit of employees’’ in the Connecticut Limousine unit.
In making this determination, the judge may, if nec-
essary, order that the hearing be reopened to adduce
additional evidence, after which he shall include in his
supplemental decision findings of fact, conclusions of
law, and provisions in his recommended Order pertain-
ing to this allegation.10
With respect to the issue of the chargeability of or-
ganizing expenses, the General Counsel has stated in
his brief that ‘‘[d]ue to the importance of this issue,
and in order to assist the Board, arguments for both
positions are set forth, with the General Counsel sup-
porting a finding that organizing expenses are charge-
able.’’ Because the judge viewed the Supreme Court’s
holding in Ellis v. Railway Clerks, 466 U.S. 435, 451–
453 (1984) that organizing expenses are nonrepresenta-
tional under the Railway Labor Act (RLA) as compel-
ling a finding that organizing expenses are likewise
nonrepresentational in any circumstances under the
NLRA, he found it unnecessary for the parties to de-
velop a record supporting the General Counsel’s posi-
tion.
The General Counsel argues specifically that unions
covered by the NLRA expend moneys to organize un-
represented workers in order to preserve uniformity of
labor standards in the organized workforce. The Gen-
eral Counsel alludes to empirical economic data sup-
porting his view, but no record evidence has been ad-
duced either on this issue generally or on what kinds
of employers, either in the Employer’s specific indus-
try or in competing industries, the Union might attempt
to organize in order to preserve uniform labor stand-
ards. The General Counsel also cites ‘‘significant dif-
ferences’’ between the airline and railway industries
covered by the RLA and industries over which the
Board asserts jurisdiction, including relative competi-
tion among unionized and nonunionized employers vis-
a-vis each of the two statutes. On this point also, no
record has been developed, specifically with respect to
competitive forces within the Employer’s industry and
comparative circumstances in the transportation indus-
tries covered by the RLA.11 We find it necessary for
a full record to be developed on these points, as well
as a supplemental briefing by the parties, to address
fully the merits of the General Counsel’s position.
Our dissenting colleague argues that the Supreme
Court has definitively resolved this issue in Ellis, and
that a remand is therefore inappropriate. We do not
agree that the NLRA issue necessarily has been re-
solved. First, it is clear that the issue of chargeability
of organizing expenses under the NLRA was not be-
fore the Court in the RLA case of Ellis. Second, the
procedures under the NLRA differ from those under
the RLA. More specifically, the NLRA contemplates
that an expert agency (the NLRB) will make judg-
ments based on its experience and its expertise. Our
remand to gather data is consistent with this role.
Third, the Court recognized in Beck that the RLA and
public sector cases involve governmental action and
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638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 In California Saw, the Board held that constitutional principles
do not apply to Beck-NLRA issues, and it decided these issues under
the principles of fair representation.
1 I note that the complaint does not allege that the language of the
union-security clause requiring unit employees to become ‘‘members
of the Union in good standing’’ renders the clause facially invalid.
Except to the extent that the court relies upon Pattern Makers’
League v. NLRB, 473 U.S. 95 (1985), I agree with the Sixth Cir-
cuit’s recent decision in Buzenius v. NLRB, No. 96-5139 (Sept. 8,
1997), that union-security clauses containing such language are
facially invalid.
therefore must be decided under constitutional prin-
ciples. The Court specifically declined to pass on the
question of whether the NLRA cases involve govern-
mental action and whether they therefore must be de-
cided under constitutional principles. Concededly, the
Court held that the underlying principle (non-
representational expenses cannot be charged to objec-
tors) applies to both the NLRA and the RLA. How-
ever, it does not necessarily follow that every sub-issue
arising under these Acts must be resolved in precisely
the same way.12
Our dissenting colleague asserts that we have de-
cided the issue of whether organizing expenses are
chargeable under the NLRA. The assertion is incorrect.
We have decided only to gather the facts, and to then
decide the issue. By contrast, it is our colleague who
has decided the issue. In essence, he has decided that,
irrespective of the facts that will be gathered on re-
mand, the issue has been decided.
Accordingly, we remand this allegation to the judge
for further proceedings, including, if necessary, a re-
opening of the hearing, to adduce additional evidence
and to make supplemental findings of fact, conclusions
of law, and a recommended supplemental Order.
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law 6:
‘‘6. The Respondent has not violated the Act by:
‘‘(a) Failing to provide objecting financial-core
members with a detailed apportionment of its expendi-
tures for representational activities on behalf of the
bargaining unit described above for the period January
1, 1992, through December 31, 1992.
‘‘(b) Failing to provide objecting financial-core
members with an adequate explanation of per capita
tax.
‘‘(c) Failing to provide objecting financial-core
members with information concerning the Respond-
ent’s political, legislative, or lobbying activities.
‘‘(d) Failing to provide objecting financial-core
members with a breakdown of expenses for representa-
tional and nonrepresentational activities on a unit-by-
unit basis.’’
ORDER
The complaint allegations that the Respondent un-
lawfully failed to provide objecting financial-core
members with a detailed apportionment of its expendi-
tures for representational activities, a breakdown of
those expenses on a bargaining-unit-by-bargaining-unit
basis, and an explanation of its per capita tax and ex-
penses for political, legislative, or lobbying activities,
are dismissed.
IT IS FURTHER ORDERED that the complaint allega-
tions pertaining to the chargeability of organizing and
legal expenses to Beck objectors, pertaining to the ade-
quacy of the verification and auditing proceedures, and
pertaining to the information provided those objectors
concerning the Respondent’s use of weekly administra-
tive dues are remanded to the judge for further pro-
ceedings consistent with this Decision and Order.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision con-
taining credibility resolutions, findings of fact, conclu-
sions of law, and recommendations to the Board. Fol-
lowing service of the supplemental decision on the par-
ties, the provisions of Section 102.46 of the Board’s
Rules and Regulations shall apply.
CHAIRMAN GOULD, dissenting in part.
I agree with the judge that the Supreme Court’s de-
cision in Ellis v. Brotherhood of Railway Clerks, 466
U.S. 435 (1984), compels the finding in the instant
case that the Union violated the Act by charging objec-
tors for its organizing costs. Therefore, I disagree with
the majority’s decision to remand this issue for further
consideration.1
Ellis held that a union’s expenditures for organizing
efforts are completely nonchargeable under the Rail-
way Labor Act (RLA). Three reasons were advanced
by the Court for its holding, all of which I find equally
applicable to cases arising under our Act. First, the
Court noted that there was no legislative history to
support the notion that, in authorizing union shop
clauses under the RLA, Congress intended also to pro-
mote a union’s organizational agenda aimed at spread-
ing the union’s presence to other companies. Second,
when employees are covered by a union shop clause
the Court observed that ‘‘the relevant unit [is] already
organized.’’ 466 U.S. at 452. Thus, ‘‘[b]y definition,’’
organizational costs can only be ‘‘spent on employees
outside the collective-bargaining unit already rep-
resented,’’ which the Court found ‘‘afford[ed] only the
most attenuated benefits to collective bargaining on be-
half of the dues payer.’’ Id. Finally, the Court noted
that the essential justification for the union shop was
to eliminate the ‘‘free-rider’’ employee ‘‘in the bar-
gaining unit’’ who would avoid paying for the rep-
resentational costs expended on his behalf by the union
(id. at 447), and that ‘‘[n]onbargaining unit organizing
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639TEAMSTERS LOCAL 443 (CONNECTICUT LIMOUSINE SERVICE)
2 Gould, The Burger Court and Labor Law: The Beat Goes On-
Marcato, 24 San Diego L. Rev. 51, 61 (1987).
3 My colleagues assert that they have not decided that organizing
expenses are chargeable under these circumstances. Implicit in their
remand, however, is a determination that, if the specific conditions
are met, they will find organizing expenses chargeable. If they in-
tended to follow the Ellis prohibition against charging organizing ex-
penses, a remand would not be necessary.
4 See also Estlund, Labor Property and Sovereignty After
Lechmere, 46 Stan L. Rev. 305, 327 & 330 n. 154 (1994) (‘‘[T]he
presence of a large nonunion sector in the relevant labor market con-
strains the leverage that organized employees can exert.’’ Therefore,
in holding that the ‘‘economic benefits that new organizing provides
to existing unit members were too attenuated to permit unions to
charge objecting nonunion members . . . the Court’s decision is in-
correct.’’); Weiler, Hard Times for Unions: Challenging Times for
Scholars, 58 U. Chi. L. Rev. 1015, 1029 fn. 43 (1991) (Ellis is ‘‘ar-
guably one of the Court’s most preposterous labor law decisions’’
to the extent that it holds that ‘‘outside organizing efforts [are] not
significantly related to the interests of already represented employ-
ees’’); Henkel & Wood, Limitations on the Uses of Union Shop
Funds After Ellis: What Activities are ‘‘Germane to Collective Bar-
gaining?’’ 35 Lab. L. J. 736, 745 (1984) (‘‘It is difficult for the stu-
dent of labor relations to understand the Court’s reasoning in Ellis
that a union can [not] use dues payments from all employees . . .
for union organizing expenses. Unions have fought to organize the
nonunion companies in their industry to protect wage levels and jobs
of union members. Thus, workers represented by unions have a con-
tinuing interest in having nonunion firms organized.’’)
5 Leslie Homes, Inc., 316 NLRB 123, 131 (1995) (Chairman Gould
concurring in the Board’s finding that the Supreme Court decision
in Lechmere v. NLRB, 502 U.S. 527 (1992) creates no distinction be-
tween organizing activity and area standards activity in determining
the access rights of unions to an employer’s property).
1 All dates are in 1993 unless otherwise indicated.
is not directed at that employee.’’ Id at 452. In short,
as I stated on an earlier occasion, the dispositive thesis
for the Court’s holding was that ‘‘dues payments spent
for organizing drives are not ‘germane’ to the union’s
collective-bargaining responsibilities in the unit and are
therefore not within the scope of activities for which
Congress intended unions to be relieved of ‘free rider’
problems.’’2
Notwithstanding this clear injunction, my colleagues,
in remanding the organizing issue, apparently would
distinguish Ellis and find organizing costs chargeable
as a representational expense under our Act if such
costs are restricted to business competitors of the em-
ployer in the same industry, and if it can be shown
that organizing the unrepresented employees would
‘‘preserve uniformity of labor standards in the orga-
nized workforce.’’3 I disagree.
Ellis is emphatic that organizing expenses spent
‘‘outside the collective-bargaining unit already rep-
resented’’ are nonchargeable. This holding necessarily
encompasses within the proscription every kind of or-
ganizing activity, including intra-industry organizing
which my colleagues contemplate as permissible. Any
doubt as to whether the latter category is noncharge-
able is clarified by reference to the decision of the
court of appeals in Ellis. The Ninth Circuit therein
found the union’s organizing costs chargeable on the
theory that:
[m]aximum organization of an industry benefits
employees and units already organized. A union is
considerably strengthened if it eliminates competi-
tion from non-union employers and a stronger
union is unquestionably a more effective collec-
tive bargaining agent. Successful organizing ef-
forts thus can strengthen the union’s position at
the collective bargaining table immeasurably. [685
F.2d 1065, 1074 (1982). (Emphasis added.)]
The Supreme Court flatly rejected this proposition.
I do not disagree with my colleagues or the Ninth
Circuit in Ellis that organizing expenses, at least within
the same industry in which organized employees work,
should be chargeable. In fact, I have indicated as much
when I stated that the Supreme Court’s decision in
Ellis
totally ignores what all observers of labor-man-
agement relations have known since the beginning
of organized relationships between the two:
Unions must organize and recruit new members to
protect the gains and standards of those in the
bargaining unit. This is especially so when the or-
ganizational activities are taking place amongst
employers which are direct competitors of the en-
terprise in which the dues are collected. . . . See
Gould, supra fn. 1.4
But Ellis has resolved the issue against us and we are,
of course, bound by its holding. As I stated in similar
circumstances where I found myself at odds with Su-
preme Court precedent, the answer is not to manufac-
ture a distinction in applicable law where none exists;
rather, ‘‘[i]f there is to be a different result, it must
come from the President and the Congress and not the
Board.’’5
Ursula L. Haerter, Esq., for the General Counsel.
Norman Zolot, Esq., of Woodbridge, Connecticut, for the Re-
spondent.
John S. Scully, Esq., of Springfield, Virginia, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Hartford, Connecticut, on June 19, 1994.
The charge was filed January 10, 1994,1 and an amended
charge was filed on February 23, 1994. The Acting Regional
Director for Region 34 issued the complaint on February 24,
1994, which alleges that the Respondent, International Broth-
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640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Sec. 9(a) of the Act provides, in pertinent part:
Representatives designated or selected for the purposes of col-
lective bargaining by the majority of the employees in a unit ap-
propriate for such purposes, shall be the exclusive representa-
tives of all the employees in such unit for the purposes of col-
lective-bargaining in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment.
3 Sec. 2(13) of the Act provides:
In determining whether any person is acting as an agent of an-
other person so as to make such other person responsible for his
acts, the question of whether the specific acts performed were
actually authorized or subsequently ratified shall not be control-
ling.
4 At the hearing, I accepted the parties’ stipulation that the com-
munications between the Union and Peterson for the period from
July 1 to the present, are representative of all the communications
between the Union and the other 11 objecting employees for the
same period.
erhood of Teamsters, Local 443, AFL–CIO (the Union), vio-
lated Section 8((b)(1)(A) of the Act by failing and refusing
to provide the Charging Party, Dale S. Peterson, and other
employees of Connecticut Limousine Service, Inc. (the Com-
pany), who were not members of the Union, with certain in-
formation and explanations regarding their obligations to pay
dues or fees under a union-security clause in a collective-bar-
gaining agreement, and by seeking from these employees, as
a condition of continued employment, dues and fees for non-
representational activities. In its timely answer to the com-
plaint, the Union denied these allegations.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, the Union, and Peterson, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a Connecticut corporation, with an office
and place of business in Milford, Connecticut, has been, at
all times material to this case, engaged in the interstate and
intrastate transportation of passengers. During the 12-month
period ending January 31, 1994, the Company, in conducting
its transportation business, realized gross revenues in excess
of $50,000 for the transportation of passengers from the State
of Connecticut directly to points outside of Connecticut. The
Union admits the foregoing commerce data. The Union also
admits, and I find, that the Company is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act. The Union admits, and I find, that International
Brotherhood of Teamsters, Local 443, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
At all times material to this case, the Union, by virtue of
Section 9(a) of the Act,2 has been the exclusive collective-
bargaining representative of the following unit of the Compa-
ny’s employees:
All its employees customarily reporting for duty within
the jurisdiction of the Union and performing driving
duties, excluding all office, clerical, sales, dispatching,
and maintenance employees and supervisory employees
with authority to hire, promote, discipline, discharge or
otherwise effect changes in the status of employees, or
effectively recommend such action.
Also, at all times material to this case, the Union’s secretary-
treasurer, Edward Brereton, was its agent within the meaning
of Section 2(13) of the Act.3
At all times since May 16, 1990, the Union and the Com-
pany have maintained and enforced a collective-bargaining
agreement covering the bargaining unit set forth above, and
containing the following union-security provision:
As a condition of employment, all employees covered
by this Agreement shall, after 30 days following the
date of execution of this Agreement, or in the case of
new regular employees, after 30 days following the date
of hiring, or in the case of new nonregular employees,
after 60 days following the date of hiring, become
members of the Union in good standing and remain
members of the Union in good standing during the term
of this Agreement. For purposes of this requirement,
good standing is defined as the prompt tender of the
periodic monthly dues, administrative dues, and the ini-
tiation fees uniformly required as a condition of acquir-
ing or retaining membership in the Union.
The Union expends the moneys collected under this union-
security provision on activities germane to collective-bargain-
ing, contract administration, and grievance adjustment, which
are called representational activities. The Union also expends
such moneys on activities which are not germane to collec-
tive-bargaining, contract administration, and grievance adjust-
ment, which are called nonrepresentational activities.
Since on or about July 23, the Charging Party and the fol-
lowing named employees, who are covered by the quoted
union-security provision, have not been members of the
Union:
John Cubelotti, Daniel Nastasia, Augusto Tedesco, Rob-
ert J. Kelly, Charles E. Roberts, Salvatore Carchia, Al-
exander E. Bareska Jr., Robert D’Aniello, William F.
Jacques Jr., Louis Massaro and Ronald DeStefano.
On or about the same date, these 12 employees notified the
Union that they objected to the payment of dues and fees for
nonrepresentational activities. Each of their letters of resigna-
tion from membership in the Union also contained the fol-
lowing language asserting their new status:
Under the U. S. Supreme Court’s decision in Com-
munications Workers of America v. Beck, I hereby de-
clare myself protected by financial-core status as de-
fined in the aforementioned decision of the U. S. Su-
preme Court.
Please return any reduced dues owed to me, and
charge me for the new appropriate amount in compli-
ance with the requirements of Beck.
By letters dated July 30, the Union advised Peterson and
the other 11 objectors that their resignations would be effec-
tive that same day.4 The Union’s letter also addressed their
objections to the payment of dues and fees for ‘‘non bargain-
ing expenses,’’ as follows:
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641TEAMSTERS LOCAL 443 (CONNECTICUT LIMOUSINE SERVICE)
5 The parties’ stipulations provided the data, including payments to
the Union’s employees, which I have recited, in this and subsequent
paragraphs, for calendar 1992 and 1993.
Because this is the first request made by a member for
a reduction in dues, we are requesting our professional
staff to review the 1992 Financial Reports and deter-
mine the amount, if any, of such reduction. As soon as
we have determined that amount, you will be advised.
Any refund due you will be paid with interest as soon
as practical. No retroactive payments will be made for
any period prior to this date
In a followup letter dated August 24, the Union notified
the 12 objectors that it had ‘‘determined that 4.64% of the
regular monthly dues is for ‘non-chargeable’ activities.’’
Thus, according to the letter, instead of the regular monthly
dues of $22 charged to full union members, the objectors
were now obligated to pay $20.98 per month, beginning Sep-
tember.
In a letter addressed to the Company dated August 24,
showing that copies of the letter were distributed to the 12
objectors, and captioned ‘‘NON MEMBERS OF LOCAL
#443 POLICY ON AGENCY FEE/FAIR SHARE OBJEC-
TIONS,’’ the Union explained its new procedure for dispos-
ing of objections from financial core members who wish to
pay only for union expenditures chargeable to collective bar-
gaining, contract negotiations, and grievance adjustment. The
letter presented the following policy regarding the financial
obligation of objectors:
The Financial Core Fee payable by objectors will be
based on the Union’s expenditures for those activitities
or projects normally or reasonably undertaken by the
Union to advance the employment-related interests of
the employees it represents. These are referred to as
‘‘chargeable’’ expenditures. The balance of the expend-
itures are ‘‘nonchargeable.’’
The letter specified that chargeable expenditures included
‘‘those for negotiations with Employers’ enforcing Collective
Bargaining Agreements; handling employees’ work related
problems through the grievance procedure, before administra-
tive agencies, or at informal meetings; organizing employees
of competing Employers in the Industry; Union governance
and administration; litigation related to any of the above, and
cost of economic activities in support of chargeable expendi-
tures.’’ The Union explained in its letter that 95.36 percent
of its expenditures in 1992 were incurred for ‘‘‘chargeable’
activities’’ and 4.64 percent for ‘‘‘non-chargeable’ expendi-
tures.’’ The Union’s letter announced that objectors had the
right to challenge the Union’s determination of the reduced
fee in arbitration.
On September 26, the objectors sent their second objecting
letters to the Union. These letters challenged the Union’s
agency fee and asked for proof of the Union’s ‘‘expenditures
for chargeable activities.’’ The Union answered with a letter
and a breakdown of expenditures. In its letter, the Union as-
sured Peterson and the other objectors that its determination
of the amount of the agency fee it was charging them ‘‘is
correct as required by applicable laws and the NLRB deci-
sions.’’ The Union’s letter closed with: ‘‘If you have any
questions, please state them in writing.’’
The breakdown, which the Union’s accountant had pre-
pared was an analysis and itemized listing of the Union’s ex-
penses for 1992, taken from the Union’s LM-2 report to the
Department of Labor for calendar year 1992. The account-
ant’s breakdown apportioned these expenses under the head-
ings ‘‘Chargeable’’ and ‘‘Non-Chargeable.’’ The breakdown
did not specify the portions of its expenses attributable to
representing the collective-bargaining unit described above.
The expenses, which the breakdown shows as chargeable,
include payroll and expenses for officers and employees, and
per capita tax for the International Brotherhood of Teamsters,
Eastern Conference of Teamsters, and Teamsters Joint Coun-
cil #64, New England Bakery Committee, New England
Freight Committee and Building Trades Council. However,
the Union did not explain why certain payments to these or-
ganizations were chargeable and others nonchargeable. Also,
the Union’s breakdown did not provide any information re-
garding its political, legislative, and lobbying expenditures.
The total figure of $55,714 for professional expenses
shown as chargeable in the Union’s breakdown, included
$27,950 in legal and litigation expenses incurred by the
Union representing various bargaining units in 1992. This
latter figure is comprised of 11 monthly retainer payments of
$2500 and a separate charge of $450 for representing the
Union in a criminal matter. During the 1992 calendar year,
the Union represented 153 collective-bargaining units, with
an average compliment of 3260 employees throughout the
year.5
In calendar year 1993, the Union spent approximately
$54,756 in professional fees, which included approximately
$30,000 in total legal expenses for the Union in representing
various units based upon a retainer of $2500 per month for
12 months. During the 1993 calendar year, the Union rep-
resented approximately 95 collective-bargaining units with an
average total compliment of 3338 employees throughout the
year.
The collective-bargaining unit at the Company is one of
the units which the Union represented in calendar year 1992,
when there was an average of approximately 141 employees
in the unit, and in 1993, when there was an average of ap-
proximately 152 employees in the unit. However, I find,
from testimony of its secretary-treasurer, Anthony Buonpane,
that the Union’s allocation of chargeable and nonchargeable
expenses reflected the costs of collective bargaining, contract
administration, and grievance adjustments for all of its mem-
bers. The parties stipulated, and I find, that the Union does
not maintain separate records by its representatives or by
units represented for the organizing activities or the expenses
of the Union.
The Union attempted to organize unrepresented employees
in 1992 and 1993. Its breakdown reflects $38 as an organiz-
ing expense for 1992, which was chargeable. The parties
stipulated, and I find, that the Union used this money for a
special printing of campaign literature, and that there were
indeterminate amounts for time spent by persons employed
by the Union in its organizing.
The parties also stipulated to the following facts: The pay-
ments made to persons employed by the Union during fiscal
years 1992 and 1993, are set forth in the copies of the
Union’s LM-2 reports filed with the U.S. Department of
Labor, which I received in evidence. All the collective-bar-
gaining units represented by the Union in 1992 and 1993
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642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were serviced by persons employed by the Union. The Com-
pany unit was primarily serviced by Edward Brereton, as-
sisted by a Union business agent, Robert Byusik, in 1992
through Brereton’s death in November 1993 and thereafter
primarily serviced by Bayusik. The Union’s fiscal year is co-
extensive with the calendar year.
At all times material to this case, the union-security provi-
sion covering the Company’s employees required them to
pay weekly administrative dues. However, the Union did not
explain its use of those dues to the objectors.
B. The Issues Raised by the Pleadings
The General Counsel contends that the Union violated
Section 8(b)(1)(A) of the Act by:
1. Failing to disclose sufficient information to the ob-
jectors in a timely manner.
2. Failing to provide a unit-by-unit allocation of ex-
penses to the objectors.
3. Charging objectors for nonunit litigation expenses.
4. Failing to include and explain certain expenditures in
the breakdown of expenditures, which it issued to the
objectors.
In her brief, counsel for the General Counsel questions
whether the Union’s organizing expenses are chargeable to
the objectors. Counsel argues both sides of the question and
states that the General Counsel’s view is that such expenses
are chargeable to the objectors, and thus their inclusion in
the dues charged to objectors is lawful. However, the com-
plaint alleges that the Union violated Section 8(b)(1)(A) of
the Act, by requiring objectors to pay for organizing employ-
ees.
C. Analysis and Conclusions
Under Section 7 of the Act, Dale S. Peterson and the other
11 objectors had a right to refrain from full membership in
the Union. However, Section 8(a)(3) of the Act limited that
right by authorizing employers and unions to enter into
agreements which ‘‘require as a condition of employment
membership [in the union] on or after the thirtieth day fol-
lowing the beginning of such employment or the effective
date of such agreement, which ever is the later.’’ In their re-
spective letters of resignation, each of the 12 objectors told
the Union to express in dollars and cents the extent of that
limitation upon his right to refrain from providing it with fi-
nancial support, and to charge him as little as the applicable
law required him to pay. The question raised by the plead-
ings is whether the Union’s response impaired the objectors’
Section 7 right to refuse to provide financial assistance for
union activities which had nothing to do with their wages,
hours, and conditions of employment.
In dealing with the contention that the Union’s treatment
of the 12 objectors ran afoul of Section 8(b)(1)(A) of the
Act, I look first to the teachings of Communication Workers
of America v. Beck, 487 U.S. 735 (1988) There the Court ex-
panded its prior holding in NLRB v. General Motors Corp.,
373 U.S. 734, 742 (1963), that under Section 8(a)(3) of the
Act, ‘‘the burdens of membership upon which employment
may be conditioned are expressly limited to the payment of
initiation fees and monthly dues.’’ Accord: Electrical Work-
ers IUE Local 444 (Paramax Systems), 311 NLRB 1031,
1035 (1993). In Beck, the Court held that under Section
8(a)(3) of the Act, ‘‘financial core’’ union members—those
who pay dues as a requirement of employment, but do not
choose to join the union—cannot be required to pay more
than ‘‘those fees and dues necessary to ‘performing the du-
ties of an exclusive representative of the employees in deal-
ing with the employer on labor-management issues.’’’ 487
U.S. at 762–763, quoting Ellis v. Railway Clerks, 466 U.S.
435, 448 (1984). Specifically, the Court in Beck held that fi-
nancial core membership does not include ‘‘the obligation to
support union activities beyond those germane to collective
bargaining, contract administration and grievance adjust-
ment.’’ 487 U.S. at 745. Further, this obligation is limited to
the expenses which the Union incurs in representing the fi-
nancial core member’s bargaining unit. 487 U.S. at 762–763,
citing Ellis v. Railway Clerks, 466 U.S. 435, 448 (1984).
Under Board policy, the Union, as the exclusive bargain-
ing representative of the Company’s employees, had a fidu-
ciary duty of fair dealing requiring it to advise Peterson and
all other members of the collective-bargaining unit, including
financial core members, ‘‘not just those who are faced with
imminent discharge, as to the precise extent of their obliga-
tions and rights’’ with respect to their financial burden under
the current union-security provisions. Electrical Workers IUE
Local 444 (Paramax Systems), supra at 1038–1040. The
Board has recognized that: ‘‘The rationale for requiring the
union to provide this information is that it, as the exclusive
representative, must ensure that unit employees do not fail to
meet their obligations through ‘ignorance or inadvertence,’
but do so only as a result of conscious choice.’’ Id. at 1039.
[Citation omitted.]
The Union’s obligation here, as exclusive representative,
includes the duty to provide Peterson and the other objectors
in the collective-bargaining unit, who are thus entitled to ob-
ject to the Union’s calculation of financial core dues, with
‘‘sufficient information to gauge the propriety of the Union’s
fee.’’ Chicago Teachers Union Local 1 v. Hudson, 475 U.S.
292, 306 (1986). Accord: Tierney v. City of Toledo, 824 F.2d
1497, 1503 (6th Cir. 1987). The Court noted in Hudson that
‘‘absolute precision’’ cannot be ‘‘expected or required,’’ but,
the information must inform the employee of the major cat-
egories of expenses, whether the union considers each cat-
egory of expense to be representational or nonrepresenta-
tional, the total sum of expenditures, and the percentages
thereof that were representational and nonrepresentational.
Hudson, above at 307 fn. 18. Accord: Tierney v. City of To-
ledo, supra at 1503.
‘‘The test of adequacy of the initial explanation to be pro-
vided by the [U]nion [to financial core members] is whether
the information is sufficient to enable the employee to decide
whether to object.’’ Dashiell v. Montgomery County, Md.,
925 F.2d 750, 756 (4th Cir. 1991). If the employee objects
to the fee, the Union, then has the burden of showing in de-
tail how it arrived at the amount in question. Id. The Union
also must ‘‘provide for a reasonably prompt decision by an
impartial decision-maker’’ and, when an objector challenges
the Union’s calculation of amount of dues chargeable for
representational activity, the Union must hold the objector’s
dues payment in escrow pending disposition of the challenge.
Hudson, supra at 307–308.
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643TEAMSTERS LOCAL 443 (CONNECTICUT LIMOUSINE SERVICE)
Applying the teachings of Beck, Ellis, Paramax, and the
other cases cited above, I find that the Union did not carry
out its fiduciary duty to apprise the objectors in sufficient de-
tail to enable them to challenge the Union’s calculations.
For, the Union did not give them a breakdown showing the
expenses attributable to its ‘‘dealing with the [company] on
labor-management issues.’’ Ellis, 466 U.S. at 448. Accord:
Beck, 487 U.S. at 762–763. Further, the Union’s statement
of policy and the breakdown, which it furnished on Septem-
ber 28, showed that in calculating the dues for the objectors
it had included costs attributed to negotiations, its expenses
for organizing, union governance and adminstration, and
other activities performed for all of the bargaining units it
represented in 1992. Nowhere was there any breakdown of
these costs by bargaining unit. Further, the Union does not
maintain records on a unit-by-unit basis. Secretary-Treasurer
Buonpane testified that the Union’s allocation of chargeable
and nonchargeable costs covers all the units it represents.
Thus, the Union’s statement of policy, its breakdown, its of-
fice practice, and the testimony of its secretary-treasurer,
show that it has totally ignored its obligation under Beck to
show objecting financial core members chargeable costs at-
tributable to their bargaining unit. By this dereliction, the
Union has violated Section 8(b)(1)(A) of the Act.
In Beck, 487 U.S. at 745, the Court held that financial core
membership did not include ‘‘the obligation to support union
activities beyond those germane to collective bargaining,
contract administration, and grievance adjustment.’’ In Ellis,
466 U.S. at 451–453, the Court held that a union’s organiz-
ing expenses cannot be charged to objecting financial core
members as a bargaining expense. Also, in Ellis, Id. at 453,
the Court recognized that ‘‘[t]he expenses of litigation inci-
dent to negotiating and administering the contract or to set-
tling grievances and disputes arising in the bargaining unit
are clearly chargeable to [objecting financial core members]
as a normal incident of the duties of the exclusive representa-
tive.’’ The Court also held in Ellis, Ibid, that: ‘‘The expenses
of litigation not having such a connection with the bargaining
unit are not to be charged to objecting employees.’’
In the instant case. the Union’s statement of policy and its
financial disclosures show that it was including organizing
expenses and legal fees in the dues it charged to the 12 ob-
jectors. In adding the legal fees to the chargeable expenses,
the Union made no effort to relate them to its duties as their
exclusive bargaining representative. The Union’s secretary-
treasurer, Anthony Buonpane, testified that its organizing
costs were chargeable to the objectors because they would
benefit from organizing the unorganized employees else-
where. However, the Court in Ellis, 466 U.S. at 451–453,
specifically rejected that assertion. I find, therefore, that by
charging the objectors for organizing expenses and for all of
its legal fees, the Union exceeded the bounds set by Beck
and Ellis, and thereby violated Section 8(b)(1)(A) of the Act.
I also find that the Union violated Section 8(b)(1)(A) of
the Act when it neglected to inform the objectors in other
important respects. Thus, the Union never told them how it
spent the administrative dues referred to in the union-security
provision covering the bargaining unit. Nor did the Union
show why all of its officers’ and employees’ wages and ex-
penses are chargeable to the bargaining unit. Similarly, the
Union did not explain why certain of the per capita taxes,
shown on its financial report for 1992, are chargeable and
other per capita taxes are nonchargeable. The Union has not
shown what if any moneys it spent on political, legislative,
or lobbying activities. Assuming that its spent no money on
those activities, fairness required that it so advise the objec-
tors. Finally, the Union neglected its duty to provide the ob-
jectors with an independent audit. Hudson, supra, 475 U.S.
at 307 fn. 18. The Union’s accountant did not perform an
independent audit of the Union’s expenditures for 1992 or
1993. Instead it presented the figures in the Union’s report
to the Department of Labor for 1992.
CONCLUSIONS OF LAW
1. The Union, International Brotherhood of Teamsters,
Local 443, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
2. The Company, Connecticut Limousine Service, Inc. is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
3. The Union is, and has been at all times material to this
case, the exclusive collective-bargaining representative of the
following appropriate unit of the Company’s employees:
All its employees customarily reporting for duty within
the jurisdiction of the Union and performing driving
duties, excluding all office, clerical, sales, dispatching,
and maintenance employees and supervisory employees
with authority to hire, promote, discipline, discharge or
otherwise effect changes in the status of employees, or
effectively recommend such action.
4. At all times material, since July 23, 1993, the following
employees employed in the unit described have not been
members of the Union:
Dale S. Peterson, John Cubelotti, Daniel Nastasia,
Augusto Tedesco, Robert J. Kelly, Charles E. Roberts,
Salvatore Carchia, Alexander E. Bareska Jr., Robert
D’Aniello, William F. Jacques Jr., Louis Massaro, and
Ronald DeStefano.
5. At all times material, since May 16, 1990, the Union
and the Company have maintained and enforced a collective-
bargaining agreement covering the unit described above, and
containing the following union-security provision.
As a condition of employment, all employees covered
by this Agreement shall, after 30 days following the
date of execution of this Agreement, or in the case of
new regular employees, after 30 days following the date
of hiring, or in the case of new nonregular employees,
after 60 days following the date of hiring, become
members of the Union in good standing and remain
members of the Union in good standing during the term
of this Agreement. For purposes of this requirement,
good standing is defined as the prompt tender of the
periodic monthly dues, administrative dues, and the ini-
tiation fees uniformly required as a condition of acquir-
ing or retaining membership in the Union.
6. The Union has violated Section 8(b)(1)(A) of the Act
by:
(a) Failing to provide the 12 employees named above with
a detailed apportionment of, and an independent audit of, its
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644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
expenditures for representational activities on behalf of the
bargaining unit described above for the period January 1,
1992 through December 31, 1992.
(b) Failing to provide the 12 employees named above with
an adequate explanation of the following expenditures, which
the Union claims are for representational activities affecting
the bargaining unit described above:
administrative dues, payroll and expenses for officers
and employees, and per capita tax for the following:
International Brotherhood of Teamsters, Eastern Con-
ference of Teamsters, Joint Council # 64, New England
Bakery Committee, New England Freight Committee
and Building Trades Council.
(c) Failing to provide the 12 employees named above with
any explanation as to its expenses for political, legislative, or
lobbying activities affecting the bargaining unit described
above.
(d) Including its expenses for organizing employees and
litigation for nonrepresentational activities in calculating the
dues and fees to be charged to the 12 employees named
above.
(e) Failing to provide the 12 employees named above with
verification that the information concerning its expenditures
for representational and nonrepresentational activities were
independently audited.
(f) Failing to provide the 12 employees named above with
a breakdown of expenses for representational and non-
representational activities on a unit-by-unit basis.
7. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Union has violated Section
8(b)(1)(A) of the Act, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, the Union is
required to provide the 12 objectors, and any other unit em-
ployee, who has become an objector, with a detailed appor-
tionment of its expenditures for representational and non-
representational activities in the bargaining unit set forth
above, for the calendar years from January 1, 1992, to the
present. Further, the Union is required to provide all objec-
tors in the bargaining unit with an adequate explanation of
its expenditures for political, legislative or lobbying activi-
ties, administrative dues, payroll and expenses for officers
and employees, and per capita tax for International Brother-
hood of Teamsters, Eastern Conference of Teamsters, Team-
sters Joint Council #64, New England Bakery Committee,
New England Freight Committee and Building Trades Coun-
cil. The Union shall also be required to recalculate the
amounts of dues chargeable to objectors for calendar years
from January 1, 1992, to the present, by excluding all ex-
penditures for organizing and litigation for nonrepresenta-
tional activities involving the bargaining unit described
above, and to provide verification to the objectors that the
information regarding its expenditures for representational
activities and nonrepresentational activities were independ-
ently audited. Upon completion of the recalculations, the
Union will be required to make whole the 12 objectors
named above, and all other objectors in the bargaining unit,
by refunding to them all the excess dues and fees they may
have paid to the Union under the current union-security pro-
vision, with interest as provided for in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Union, International Brotherhood of Teamsters, Local
443, AFL–CIO, New Haven, Connecticut, its officers, agents,
successors, and representatives, shall
1. Cease and desist from
(a) Failing to provide objecting financial core members in-
cluded in the following collective-bargaining unit with a de-
tailed apportionment of, and an independent audit of, its ex-
penditures for representational activities on behalf of that
bargaining unit for the calendar years from January 1, 1992,
to the present:
All of Connecticut Limousine Service, Inc.’s employees
customarily reporting for duty within the jurisdiction of
the Union and performing driving duties, excluding all
office, clerical, sales, dispatching, and maintenance em-
ployees and supervisory employees with authority to
hire, promote, discipline, discharge or otherwise effect
changes in the status of employees, or effectively rec-
ommend such action.
(b) Failing to provide objecting financial core members
with an adequate explanation of the following expenditures
which the Union claims are for representational activities af-
fecting the bargaining unit described above:
administrative dues, payroll and expenses for officers
and employees, and per capita tax for the following:
International Brotherhood of Teamsters, Eastern Con-
ference of Teamsters, Joint Council # 64, New England
Bakery Committee, New England Freight Committee
and Building Trades Council.
(c) Failing to provide objecting financial core members, in
the above-described collective-bargaining unit, with an expla-
nation as to the expenses for political, legislative, or lobby-
ing activities, which the Union deems chargeable as rep-
resentational activities on behalf of those members.
(d) Including the expenses for organizing employees and
litigation for nonrepresentational activities in calculating the
dues and fees to be charged to objecting financial core mem-
bers in the above-described collective-bargaining unit.
(e) Failing to provide objecting financial core members, in
the above-described collective-bargaining unit, with verifica-
tion that the information concerning its expenditures for rep-
resentational and nonrepresentational activities were inde-
pendently audited.
(f) Failing to provide objecting financial core members, in
the above-described collective-bargaining unit, with a break-
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645TEAMSTERS LOCAL 443 (CONNECTICUT LIMOUSINE SERVICE)
7 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
National 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.’’
down of expenses for representational and nonrepresenta-
tional activities on a unit-by-unit basis.
(g) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Provide Dale S. Peterson, John Cubelotti, Daniel
Nastasia, Augusto Tedesco, Robert J. Kelly, Charles E. Rob-
erts, Salvatore Carchia, Alexander E. Bareska Jr., Robert
D’Aniello, William F. Jaques Jr., Louis Massaro, Ronald
DeStefano, and all other objecting financial core members in-
cluded in the following bargaining unit, with a detailed ap-
portionment of, and an independent audit of, its expenditures
for representational activities on behalf of that bargaining
unit for the calendar years from January 1, 1992, to the
present:
All of Connecticut Limousine Service, Inc.’s employees
customarily reporting for duty within the jurisdiction of
the Union and performing driving duties, excluding all
office, clerical, sales, dispatching, and maintenance em-
ployees, and supervisory employees with authority to
hire, promote, discipline, discharge or otherwise effect
changes in the status of employees, or effectively rec-
ommend such action.
(b) Provide the 12 objecting financial core members
named above, and all other objecting financial core members
included in the bargaining unit described above, with an ade-
quate explanation of the following expenditures, which the
Union claims are for representational activities affecting the
bargaining unit described above:
administrative dues, payroll and expenses for officers
and employees, and per capita tax for the following:
International Brotherhood of Teamsters, Eastern Con-
ference of Teamsters, Joint Council # 64, New England
Bakery Committee, New England Freight Committee
and Building Trades Council.
(c) Provide the 12 objecting financial core members
named above, and all other objecting core members included
in the bargaining unit described above, with an explanation
as to the expenses for political, legislative, or lobbying ac-
tivities, which the Union deems chargeable as representa-
tional activities on behalf of those members for the calendar
years 1992 to the present.
(d) Provide the 12 objecting financial core members
named above, and all other objecting financial core members
included in the bargaining unit described above, with ver-
ification that the information presented to them concerning
the Union’s expenditures for representational and non-
representational activities, for calendar years 1992 to the
present, have been independently audited.
(e) Provide the 12 objecting financial core members
named above, and all other objecting financial core members
included in the above-described collective-bargaining unit,
with a recalculation of dues chargeable to them for calendar
years 1992 to the present which excludes all expenses associ-
ated with litigation of nonrepresentational activities, organiz-
ing and all other nonrepresentational expenditures, and in-
cludes only representational expenditures broken down on a
unit-by-unit basis.
(f) Make whole the 12 objecting financial core members
named above, and all other objecting financial core members
in the above-described collective-bargaining unit, for any ex-
cess dues and fees they may have paid to the Union, since
becoming, and notifying the Union that they were, objecting
financial core members, by refunding the excess to them
with interest as provided in the remedy section of this deci-
sion.
(g) Post at its union office, in New Haven, Connecticut,
copies of the attached notice marked ‘‘Appendix.’’7 Copies
of the notice, on forms provided by the Regional Director for
Region 34 after being signed by the Union’s authorized rep-
resentative, shall be posted by the Union immediately upon
receipt and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to members are
customarily posted. Reasonable steps shall be taken by the
Union to ensure that the notices are not altered, defaced, or
covered by any other material.
(h) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by Connecticut Limousine Serv-
ice, Inc., if willing, at all places where notices to employees
are cusomarily posted.
(i) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Union 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 the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail and refuse to provide objecting financial
core members included in the following collective-bargaining
unit with a detailed apportionment of, and an independent
audit of, the Union’s expenditures for representational activi-
ties on behalf of this bargaining unit for the calendar years
from January 1, 1992, to the present:
All of Connecticut Limousine Service, Inc.’s employees
customarily reporting for duty within the jurisdiction of
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646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union and performing driving duties, excluding all
office, clerical, sales, dispatching, and maintenance em-
ployees and supervisory employees with authority to
hire, promote, discipline, discharge or otherwise effect
changes in the status of employees, or effectively rec-
ommend such action.
WE WILL NOT fail and refuse to provide objecting financial
core members with an adequate explanation of the following
expenditures which the Union claims are for representational
activities affecting the bargaining unit described above:
administrative dues, payroll and expenses for officers
and employees, and per capita tax for the following:
International Brotherhood of Teamsters, Eastern Con-
ference of Teamsters, Joint Council # 64, New England
Bakery Committee, New England Freight Committee
and Building Trades Council.
WE WILL NOT fail and refuse to provide objecting financial
core members, in the above-described collective-bargaining
unit, with an explanation as to the expenses for political, leg-
islative or lobbying activities, which the Union deems
chargeable as representational activities on behalf of those
members.
WE WILL NOT include expenses for organizing employees
and litigation for nonrepresentational activities in calculating
the dues and fees to be charged to objecting financial core
members in the above-described collective-bargaining unit.
WE WILL NOT fail to provide objecting financial core
members with verification that the information which we
have tendered to them, concerning the Union’s expenditures
for representational and nonrepresentational activities, on be-
half of the above-described collective-bargaining unit, was
independently audited.
WE WILL NOT fail to provide objecting financial core
members in the above-described collective-bargaining unit,
with a breakdown of expenses for representational and non-
representational activities, on a unit-by-unit basis.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL provide Dale S. Peterson, John Cubelotti, Daniel
Nastasia, Augusto Tedesco, Robert J. Kelly, Charles E. Rob-
erts, Salvatore Carchia, Alexander E. Bareska Jr., Robert
D’Aniello, William F. Jaques Jr., Louis Massaro, Ronald
DeStefano, and all other objecting financial core members in-
cluded in the following bargaining unit, with a detailed ap-
portionment of, and an independent audit of, the Union’s ex-
penditures for representational activities on behalf of this
bargaining unit for the calendar years from January 1, 1992,
to the present:
All of Connecticut Limousine Service, Inc.’s employees
customarily reporting for duty within the jurisdiction of
the Union and performing driving duties, excluding all
office, clerical, sales, dispatching, and maintenance em-
ployees and supervisory employees with authority to
hire, promote, discipline, discharge or otherwise effect
changes in the status of employees, or effectively rec-
ommend such action.
WE WILL provide the 12 objecting financial core members
named above, and all other objecting financial core members
included in the bargaining unit described above, with an ade-
quate explanation of the following expenditures, which the
Union claims are for representational activities affecting your
bargaining unit, described above:
administrative dues, payroll and expenses for officers
and employees, and per capita tax for the following:
International Brotherhood of Teamsters, Eastern Con-
ference of Teamsters, Joint Council # 64, New England
Bakery Committee, New England Freight Committee
and Building Trades Council.
WE WILL provide the 12 objecting financial core members
named above, and all other objecting core members included
in the bargaining unit described above, with an explanation
as to the expenses for political, legislative or lobbying activi-
ties, which the Union deems chargeable as representational
activities on behalf of those members for the calendar years
1992 to the present.
WE WILL provide the 12 objecting financial core members
named above, and all other objecting financial core members
included in the bargaining unit described above, with ver-
ification that the information presented to them concerning
the Union’s expenditures for representational and non-
representational activities, for calendar years 1992 to the
present, have been independently audited.
WE WILL provide the 12 objecting financial core members
named above, and all other objecting financial core members
included in the above-described collective-bargaining unit,
with a recalculation of dues chargeable to them for calendar
years 1992 to the present, which excludes all expenses asso-
ciated with litigation of nonrepresentational activities, orga-
nizing and all other nonrepresentational expenditures, and in-
cludes only representational expenditures broken down on a
unit-by-unit basis.
WE WILL, after recalculating the dues chargeable to them,
make whole the 12 objecting financial core members named
above, and all other objecting financial core members, in the
above-described collective-bargaining unit, for any excess
dues and fees they may have paid to the Union, since be-
coming, and notifying the Union that they were, objecting fi-
nancial core members, by refunding the excess to them with
interest.
INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, LOCAL 443, AFL–CIO
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