KGW Radio

National Labor Relations Board - Board Decisions

Jan 28, 1999

327 N.L.R.B. 474 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 474
American Federation of Television and Recording
Artists, Portland Local (KGW Radio) and Peter
Weissbach. Cases 36–CB–1491 and 36–CB–1523
January 28,1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
FOX, LIEBMAN, HURTGEN, AND BRAME
On October 23, 1991, Administrative Law Judge
David G. Heilbrun issued the attached decision. The
General Counsel filed exceptions and a supporting brief.
The Charging Party filed exceptions, a supporting brief,
and a reply brief.1 The Respondent filed an answering
brief.
This case presents issues concerning the Respondent
Local’s implementation of procedures developed by its
parent national organization, the American Federation of
Television and Recording Artists, to implement its obli-
gations under the Supreme Court’s Beck decision.2 In
Beck, the Court held that the union collected fees and
dues from bargaining unit employees under its statutory
grant of authority to serve as the exclusive bargaining
representative, but then used some of that money for
purposes wholly unrelated to the grant of authority that
gave it the right to collect that money, and in ways that
were antithetical to the interests of some of the workers
that it was required to serve.3 The Supreme Court in Beck
limited the dues and fees a union can collect from object-
ing nonmember employees under a contractual union-
security clause to amounts expended only on activities
germane to the union’s role as collective-bargaining rep-
resentative. Subsequent to the judge’s decision in this
case, the Board issued its decisions in California Saw &
Knife Works, 320 NLRB 224 (1995), enfd. sub nom. In-
ternational Association of Machinists & Aerospace
Workers v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert.
denied sub nom. Strang v. NLRB, 325 NLRB 813 (1998),
and Paperworkers Local 1033 (Weyerhaeuser Paper
Co.), 320 NLRB 349 (1995), revd. on other grounds sub
nom. Buzenius v. NLRB, 124 F.3d 788 (6th Cir. 1997),
vacated 525 U.S. 979 (1998), resolving numerous issues
that arose from the Beck decision.4
The Board has considered the decision and the record
in light of the exceptions and briefs and in light of its
decision in California Saw and has decided to affirm the
judge’s rulings, findings, and conclusions and to adopt
the recommended Order only to the extent consistent
with this Decision and Order.5

1 The Charging Party attached as exhibits to his brief copies of four
sections of the Codification of Statements on Auditing Standards pub-
lished by the American Institute of Certified Public Accountants
(AICPA). The Respondent moved to strike these documents because
they were not introduced into evidence at the hearing. We find it ap-
propriate to take official notice of these and other sections of the
AICPA codification.
2 Communications Workers of America v. Beck, 487 U.S. 735
(1988).
3 Marquez v. Screen Actors Guild, Inc., 525 U.S. 33 (1998), citing
Beck, 487 U.S. at 743–744.
4 The Board in California Saw found it appropriate to apply the duty
of fair representation standard in assessing a union’s obligations under
Beck. California Saw, 320 NLRB at 228–230.
1. The General Counsel excepts to the judge’s failure
to find that the Respondent violated Section 8(b)(1)(A)
by failing to inform the Charging Party of his Beck rights
before his obligations under the negotiated union-
security clause attached. The General Counsel further
asserts that in remedying this violation the Board should
extend the remedy to other similarly situated employees.
We find no merit in the General Counsel’s arguments.
In California Saw and Weyerhaeuser, the Board held
that a union breaches its duty of fair representation if it
fails to inform unit employees of their Beck rights at the
time it first seeks to obligate them to pay fees and dues
under a union-security clause. Specifically, the Board
held that in the initial Beck notice, the union should in-
form the employees that they have the right to be or re-
main nonmembers of the union, and that nonmembers
have the right (1) to object to paying for union activities
not germane to the union’s duties as collective-
bargaining agent and to obtain a reduction in fees for
such activities; (2) to be given sufficient information to
enable them to intelligently decide whether to object; and
(3) to be apprised of any internal union procedures for
filing objections. California Saw, 320 NLRB at 233. The
purpose of the initial Beck notice is to advise employees
of their right, should they choose not to join the union, to
limit their dues obligations in accordance with Beck.
Here, before the Respondent sought to obligate the
Charging Party to pay dues and fees, the Charging Party
notified the Respondent of his intention to remain a
nonmember and to pay only that portion of his fees and
dues associated with collective bargaining, grievance
adjustment, and contract administration. Thus, it is clear
that, at a time before the Respondent was legally obli-
gated to inform him of his rights, the Charging Party was
fully aware of his Beck rights and chose to exercise them.
Further, it is clear from the record that the Respondent
acknowledged the Charging Party’s objection and treated
him as an objecting nonmember from the time it received
his request “to obtain ‘financial core’ status.”
Under these circumstances, where the Charging Party
had actual knowledge of his rights under Beck, had suc-
cessfully exercised his right to become an objecting
nonmember, and was treated as an objecting nonmember
by the Respondent from the time it received his request,
it would elevate form over substance to find that the Re-
spondent was thereafter obligated to inform him of the
procedures associated with how to exercise his right to
object. We therefore conclude, in agreement with the
5 The Charging Party and the Respondent requested oral argument.
These requests are denied as the record, exceptions, and briefs ade-
quately present the issues and the positions of the parties.
327 NLRB No. 97
TELEVISION ARTISTS AFTRA (KGW RADIO) 475
judge, that the Respondent did not act unlawfully by fail-
ing to provide the Charging Party with initial notice of
his Beck rights and that the complaint allegation to that
effect should be dismissed.
Further, we find without merit the General Counsel’s
request that a remedy for the Respondent’s alleged fail-
ure to give initial Beck notice be provided not just to the
Charging Party but also to other “similarly situated” em-
ployees. For the reasons we have stated, we have found
no violation in the Respondent’s failure to give Beck
notice to the Charging Party, and the General Counsel
has not shown that there are any other unit employees to
whom the Respondent unlawfully failed to give Beck
notice. Thus, the General Counsel has failed to establish
the existence of a defined and easily identifiable class of
employees who have been adversely affected by any al-
leged failure to give Beck notice, so as to warrant a class-
wide remedy.6 In the absence of any such showing, we
reject the General Counsel’s request.
2. The judge found that the Respondent’s failure to ap-
portion the Charging Party’s initiation fees and to charge
him initiation fees only for expenses associated with col-
lective-bargaining purposes violated Section 8(b)(1)(A).
There were no exceptions to this finding, and we adopt it.
The judge, however, declined to extend his recom-
mended remedy for this violation to include other simi-
larly situated nonmember employees, in addition to the
Charging Party, who may have been charged full initia-
tion fees over their objection. The General Counsel ex-
cepts to the judge’s failure to extend the affirmative rem-
edy to other unnamed but similarly situated employees as
sought in the complaint. We find no merit in this excep-
tion.
Where the General Counsel has alleged and proven
unlawful conduct against a defined and easily identifi-
able class of employees, the Board, with court approval,
has found it appropriate to extend remedial relief to all
members of that class, including individuals not named
in the complaint. See, e.g., Grand Rapids Press, 325
NLRB 915 (1998) and cases cited therein. However, in
this case we do not find that the General Counsel has
established a basis for extending the remedy for the vio-
lation found to employees other than the Charging Party.
The record discloses that the unit contained approxi-
mately 20 nonmember employees at the time of hearing.
However, the record does not reflect that any other iden-
tifiable unit employee who filed a Beck objection was
charged full initiation fees; indeed, the General Counsel
concedes in his brief that there were no other Beck objec-
tors in the unit during the relevant period.7 Since there is

6 See California Saw and case cited at 254.
7 The General Counsel suggests that this is because the 20 or so
nonmembers in the unit who could potentially have filed Beck objec-
tions were not notified of their Beck rights. However, as we have spe-
cifically noted, there is no evidentiary support for that assertion in the
record.
no evidence that the Respondent’s unlawful action af-
fected any person or class of persons other than the
Charging Party, we agree with the judge that make-
whole relief should be limited to him. See, e.g., Laborers
Local 426 (Building Contractors), 280 NLRB 610 fn. 2
(1986); Longshoremen ILA Local 851 (West Gulf Mari-
time Association), 194 NLRB 1027 (1972).
3. The judge dismissed the complaint allegation con-
cerning the potential chargeability of lobbying expenses
related to conditions of employment under the Respon-
dent’s Beck policy based on his finding that during the
period covered by the complaint, the Respondent had not
incurred any lobbying expenses which it treated as
chargeable to objectors. He further rejected the argument,
renewed here by the General Counsel and the Charging
Party, that lobbying expenses can never be properly
chargeable to objectors whatever their purpose. We adopt
the judge’s dismissal based solely on the fact that no lob-
bying expenses were charged to objectors during the pe-
riod in question. We therefore find it unnecessary to pass
on his further finding with respect to the chargeability of
lobbying expenses generally.
4. The General Counsel and the Charging Party except
to the judge’s dismissal of the complaint allegation con-
cerning the sufficiency of the Respondent’s accounting
procedures. Specifically, the complaint alleged, and they
assert, that the expenditure information provided by the
Respondent to the Charging Party was not sufficient to
permit him as an objecting nonmember employee to as-
sess whether to file a challenge to his dues allocation
because the information was not audited and verified by
an independent accountant. In light of our decision in
California Saw, we find merit to their arguments con-
cerning verification of expenditure information provided
to nonmember objectors and thus reverse the judge’s
conclusion that the information provided by the Respon-
dent to objecting nonmember employees satisfied its
legal obligations.8
The procedures utilized by the Respondent in provid-
ing information to objecting nonmembers are fully set
forth in the judge’s decision. Briefly, the Respondent
provided the Charging Party with an annual report of
8 Neither the General Counsel nor the Charging Party assert that the
expenditure information was deficient because the accountant who
prepared the report was not sufficiently independent. However, we note
that Dennis Berggren, the licensed public accountant who performed
the compilation, is associated with an independent Portland area ac-
counting firm which has provided the Respondent with professional
services for about a 3-year period. Moreover, there was no contention
or indication in the record that he was not objective or that the tasks
undertaken by him in creating the report were beyond his skills. See
California Saw, 320 NLRB at 240–241. Thus, we find Berggren to be
“independent” within any generally accepted meaning of the word. See
Ferriso v. NLRB, 125 F. 3d 865, 870–872 (D.C. Cir. 1997), denying
enforcement of Electronic Workers IUE (Paramax), 322 NLRB 1
(1996); citing, inter alia, Codification of Statements on Auditing Stan-
dards, Statement on Auditing Standard No. 1, Sec. 220 at 31 (AICPA
1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 476
final expenses for the year ending December 31, 1989.
That annual report was prepared by its licensed account-
ant, Dennis Berggren. Berggren consulted a schedule of
expenses prepared by the Respondent’s national parent
office for guidance in determining the manner in which
to prepare a report, as well as in classifying categories of
expenditures as either chargeable or nonchargeable. He
also utilized financial information from the Respondent’s
national office schedule as to the chargeability of that
office’s expenditures to prepare those aspects of his re-
port involving chargeability of the portion of the Re-
spondent’s per capita dues submitted to the national of-
fice. In preparing that portion of his report concerning
local expenditures, he used a general ledger he created
from the Respondent’s checks and then used a computer
to categorize the Respondent’s annual expenditures. To
determine salary allocation for the Respondent’s staff,
Berggren reviewed its executive director’s weekly time
records, which contained the executive director’s detailed
breakdown of his hours into categories of activities,
which categories were then designated by Berggren as
chargeable or nonchargeable. Once the salary allocation
between chargeable and nonchargeable activities was
determined for the Respondent’s executive director, it
was applied to his parttime support person as well.
The transmittal letter which accompanied Berggren’s
report stated that it was a compilation of fund expenses,
rather than an audit or review. Consistent with record
evidence on the accounting profession’s use of that term,
the letter explained that the “compilation” was based on
the representations of the Respondent. The record re-
flects that the difference between a “compilation,” a “re-
view,” and an “audit” is the degree to which the account-
ant undertakes an independent investigation to verify the
accuracy of the subject’s representations. A compilation
is a financial statement prepared by an accountant based
solely on information supplied by the reported entity. In
performing a review, an accountant would similarly rely
on the representations of the reported entity, but would
further analyze the information for consistency and ques-
tion the reported entity’s management concerning any
information which appeared to deviate from expected
norms. An audit involves an accountant’s independent
confirmation of the reliability of the financial informa-
tion contained in the financial report through such proce-
dures as gathering information from outside entities and
testing of selected information. Although each of the
above-described accounting services may be used in se-
lected situations, it is clear that no independent “verifica-
tion” of financial information has been accomplished by
an accountant preparing a compilation. Thus, in accor-
dance with the standard practice of accounting profes-
sionals when submitting compilations of financial infor-
mation, the transmittal letter accompanying Berggren’s
report noted that the accounting firm did not express an
opinion or give any other form of assurance as to the
representations on which the information was based. 9
The Board in California Saw held that if an employee
chooses to object to paying dues for activities not ger-
mane to the union’s role as bargaining agent and obtain a
reduction in fees for such activities, the employee must
be apprised of the percentage of the reduction, the basis
for the calculation, and the right to challenge the union’s
figures. 320 NLRB at 233. In ascertaining whether the
information given objectors satisfies the union’s duty of
fair representation, the Board assesses whether the in-
formation is sufficient to enable objectors to determine
whether to challenge the dues-reduction calculations. Id.
at 239.
The Board in California Saw clearly envisioned that
some type of verification of the information provided to
nonmember objectors is necessary for a union to fulfill
its obligations under the duty of fair representation to
provide sufficient information. That section of California
Saw concerning “Verification of expenditures” consis-
tently uses the term “audit” in describing the task neces-
sary in providing expenditure information to objectors.
320 NLRB at 240–242. As record evidence described
above makes clear, “audit” is a generally accepted term
of art in the accounting profession. It describes a service
performed by which an accountant undertakes an inde-
pendent verification of selected transactions within the
major categories of financial information presented in the
accountant’s report. The accountant then issues a report
accompanied by an opinion letter certifying that, in the
accountant’s opinion, the report presents fairly, in all

9 The letter further indicated that, because the Respondent uses a
cash basis accounting system, rather than an accrual system, the sched-
ule was not intended to present fund expenses “in conformity with
generally accepted accounting principles.” Under a cash basis system,
financial statements are prepared on the basis of cash receipts and dis-
bursements; consequently, revenue is recognized when received rather
than when earned, and expenses are recognized when paid rather than
when the obligation is incurred. Accrual accounting is considered to
provide a better indication of an entity’s financial performance than the
cash basis of accounting. For that reason, where the audited entity uses
a cash basis accounting system, the auditor’s report will state that the
financial statements do not purport to present the entity’s financial
position and results of operations in conformity with generally accepted
accounting principles. Burton, Palmer and Kay, Handbook of Account-
ing and Auditing (1981), pp. 16–25, 16–26. The record indicates that
cash basis bookkeeping is used by many organizations, and audits can
be prepared of cash basis financial information. In finding, infra, that
the expenditure information provided by the Respondent to the Charg-
ing Party was not sufficiently verified under the principles enunciated
in California Saw, we do not rely on the Respondent’s failure to use the
accrual method of accounting. In that regard, we note that the purpose
of the financial information which a union is required to provide to
Beck objectors is not to apprise the objector of the union’s financial
position but rather to inform the objector of the basis for its calculation
of the fees it is charging to objectors. We need not here decide the
outcome if a cash basis accounting system were not consistently ap-
plied or were used to present an inaccurate picture of a union’s
expenditures.
TELEVISION ARTISTS AFTRA (KGW RADIO) 477
material respects, the financial information which was
the subject of the audit.
Although California Saw does not specifically define
the meaning of “audit,” ascribing the generally accepted
meaning of the term to the verification necessary for a
union to fulfill its obligations to objecting nonmembers is
consistent with “[t]he fundamental purpose for requiring
an audit of union expenditures,” that is, “to provide ob-
jecting nonmembers with a reliable basis for calculating
the fees they must pay.” 320 NLRB at 242. Further, in
reviewing the sufficiency of the verification procedure at
issue in California Saw, the Board held that in the NLRA
context it is required only that “ ‘the usual function of an
auditor be performed, i.e., to determine that the expenses
claimed were in fact made.’”10 This definition of the
function of an auditor required to be performed under the
Act precisely describes the type of verification provided
by an accountant performing an auditing of expenditures
service. Thus, requiring an audit within the generally
accepted meaning of the term, in which the auditor inde-
pendently verifies that the expenditures claimed were
actually made rather than accepts the representations of
the union, is consistent with the plain language, purpose,
and intent of California Saw.
We will therefore evaluate cases involving the accu-
racy of the expenditure information provided objecting
nonmembers against this verification requirement. It is
settled that determinations concerning whether particular
expenditures are chargeable are legal determinations
which are outside the expertise of the auditor. Thus, as
we have stated, the function of the auditor is to verify
that the expenditures that the union claims it made were
in fact made for the purposes claimed, not to pass on the
correctness of the union’s allocation of expenditures to
the chargeable and nonchargeable categories.11 Further,
as has repeatedly been stated in a variety of contexts,
absolute precision is not required, even under the more
exacting requirements for public sector union objectors
deriving from first amendment considerations.12 There-
fore, contrary to the urgings of the Charging Party, we do
not conclude that any particular type of audit is mandated
by the verification requirement under California Saw.13

10 California Saw at 241, quoting approvingly the Second Circuit’s
decision in Price v. Auto Workers UAW, 927 F. 2d 88, 93 (1991), cert.
denied 502 U.S. 905 (1991), which interpreted the Supreme Court’s
decision in Chicago Teachers Union Local 1 v. Hudson, 475 U.S. 292
(1986).
11 See California Saw at 241 and cases cited therein. See also Price
v. Auto Workers UAW, 927 F.2d 88, 93 (1991), cert. denied 502 .U.S.
905, supra.
12 Hudson, 475 U.S. at 307 fn. 18, cited in, e.g., Ferriso v. NLRB,
125 F.3d at 871.
13 See Abrams v. Communications Workers of America, 59 F.3d
1373, 1381 (D.C. Cir. 1995), cited in Ferriso, supra, in which the D.C.
Circuit found a procedure sufficient under the duty of fair representa-
tion by which expenditure information was recorded by employees for
only a small percentage of their time and was randomly verified by an
independent firm. See also Gwirtz v. Ohio Education Association, 887
We merely find that expenditure information provided at
this stage of the procedure must be verified by a determi-
nation that the expenses claimed were in fact made.
The report created by Berggren, as the judge noted,
was accomplished in accordance with professional stan-
dards for compilations. However, as is clearly conceded,
because it was not an audit it did not express an opinion
or give any other form of assurance as to the representa-
tions on which the report was based. As Berggren testi-
fied, he relied solely on the representations of Pemble-
Belkin, the Respondent’s executive director, and the un-
ion in preparing the report and did not in any manner
undertake to verify the accuracy of the expenditures.
Therefore, in light of the above analysis of precedent, we
conclude that the evidence presented establishes that the
preparation of the Respondent’s financial report submit-
ted to the Charging Party14 was not accomplished in a
manner sufficient to meet the Board’s verification of
expenditures requirement. 15
We find here, consistent with the complaint allegation,
that the information provided to the Charging Party was
not verified and thus that the Respondent violated its
duty of fair representation by not providing information
sufficient to enable the Charging Party as an objector to

F.2d 678, 680–682 (1989), also cited approvingly in Ferriso, in which
the Sixth Circuit found, in a public employee context, that Hudson did
not mandate a union to utilize the highest level of auditing service to
provide reliable information to nonmember objectors.
14 The record does not reflect that any other identifiable unit em-
ployee filed a Beck objection and received inadequately verified infor-
mation about the Respondent’s expenditures. To the contrary, as stated
above, the General Counsel concedes in his brief that there were no
other Beck objectors during the relevant period. Thus, consistent with
our remedy with respect to the initiation fees violation, we will limit
our remedy for the violation found here to the Charging Party only.
15 We note, however, that California Saw does not mandate that an
audit of expenditure information be provided in every instance. Cali-
fornia Saw held that a union may utilize a “local presumption” in which
no separate allocation of the union’s expenditures is performed but
instead it is presumed, for accounting purposes, that the percentage of
the local’s expenditures that is chargeable to objectors is at least as
great as the percentage of its parent union’s expenditures that is charge-
able. Although no independently verified information has to be pro-
vided concerning the local’s expenditures where the local presumption
is utilized, there is no violation of the duty of fair representation be-
cause the parent organization’s major categories of expenditures, veri-
fied supporting expenditure information, and allocation between
chargeable and nonchargeable expenditures is provided to the objec-
tors. To the extent a nonmember at the objecting stage has doubts as to
the accuracy of the financial information on which a “locally pre-
sumed” allocation of chargeable dues and fees is based, the objector
may at a later stage challenge the figures used in computing the dues
reduction, and the union bears the burden of proving that the local
union’s expenditures are “chargeable to the degree asserted.” Califor-
nia Saw, 320 NLRB at 242, relying on Price, 927 F.2d at 93. However,
in California Saw, the union involved did not avail itself of the local
presumption, and the Board analyzed the sufficiency of the information
provided to objectors under the verification requirement set forth
therein. Similarly, in this case, because the Respondent did not rely on
a local presumption and instead undertook to provide information con-
cerning its expenditures, we have analyzed the sufficiency of the in-
formation provided under the verification requirement of California
Saw.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 478
determine whether to challenge the Respondent’s dues-
reduction calculations. However, it was not alleged, nor
do we find, that the proportionate share charged the ob-
jecting nonmember was improperly calculated. To the
contrary, although not verified, the proportionate share
assessed the Charging Party may very well be accurate.16
In any event, although a union must give objectors suffi-
cient information to make a reasoned judgment whether
to challenge the dues-reduction calculations, a union
need not at the prechallenge stage, establish that its cal-
culations are justified. That burden is created only if and
after the objector files a challenge to the union’s figures.
See Teamsters Local 443 (Connecticut Limousine Ser-
vice), 324 NLRB 633, 634–635 (1997). Thus, although
we will require the Respondent to provide to the Charg-
ing Party audited information or information supported
by a local presumption to remedy the Respondent’s fail-
ure to do so, we will not at this stage require the Respon-
dent to refund any dues withheld based on the unverified
expenditure information. If, based on the information
received, the Charging Party determines that the dues
charged him were improper, he may contest them in a
challenge procedure where, as stated above, the Respon-
dent bears the burden of proving the expenditures are
chargeable to the degree asserted. Id., citing CWA Local
9403 (Pacific Bell), 322 NLRB 142, 144 (1996), enfd.
sub nom. Finerty v. NLRB, 113 F.3d 1288 (D.C. Cir.
1997), cert. denied 552 U.S. 995 (1997).17
ORDER
The National Labor Relations Board orders that the
Respondent, American Federation of Television and Re-
cording Artists, Portland Local, Portland, Oregon, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Withholding in escrow any portion of Peter Weiss-
bach’s initiation fees which was exacted from him to pay
for nonrepresentational activities.
(b) Providing to nonmember objectors expenditure in-
formation that is neither verified by an independent audi-
tor nor supported by a local presumption.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Reimburse, with interest, Peter Weissbach for any
portion of any initiation fees paid by him after he filed
his objection which was exacted from him for nonrepre-
sentational purposes.

16 See Hohe v. Casey, 956 F. 2d 399, 415–416 (2d Cir. 1992).
17 In Member Hurtgen’s view, the challenge may be brought to the
Board in the form of a charge and complaint. Chairman Truesdale and
Members Fox and Liebman find it unnecessary to pass on this issue as
it is not raised in this case.
(b) For all accounting periods covered by the com-
plaint, provide Peter Weissbach with information con-
cerning expenditures by the Respondent (or, in the event
that the Respondent relies on a local presumption, ex-
penditures by its parent union) that has been verified by
an independent auditor. If Weissbach, with reasonable
promptness after receiving this information, challenges
the dues reduction calculation for any such accounting
period, process such challenge, nunc pro tunc, as it
would otherwise have done, in accordance with the prin-
ciples of California Saw & Knife, 320 NLRB 224 (1995).
(c) Within 14 days after service by the Region, post at
its offices in Portland, Oregon, copies of the attached
notice marked “Appendix.’’18 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.
(d) 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.

MEMBER BRAME, dissenting.
I did not participate in the Board’s California Saw de-
cision1 or subsequent cases applying the principles ar-
ticulated in that case. I express no opinion as to the cor-
rectness of the Board’s implementation of the Supreme
Court’s Beck decision2 in those cases. However, without
endorsing the rationale of California Saw, I agree with
my colleagues that when a union demands that nonmem-
bers pay dues pursuant to a union-security clause, Su-
preme Court and circuit court precedent mandates that
sufficient information be provided to objecting nonmem-
bers so that they can decide whether to challenge the
amount of dues assessed them.3 Accepting my col-
18 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.”
1 California Saw & Knife Works, 320 NLRB 224 (1995), enfd. sub
nom. International Association of Machinists & Aerospace Workers v.
NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. denied sub nom. Strang v.
NLRB, 525 U.S. 813 (1998).
2 Communication Workers of America v. Beck, 487 U.S. 735 (1988).
3 Chicago Teachers Union Local 1 v. Hudson, 475 U.S. 292 (1986),
cited in, e.g., Ferriso v. NLRB, 125 F.3d 865, 869 (D.C. Cir. 1997), and
Abrams v. Communications Workers of America, 59 F.3d 1373, 1379
(D.C. Cir. 1995). As noted by the majority, an objector must be ap-
prised of the percentage of reduction of dues and fees and the basis for
the calculation. California Saw at 233. With respect to the latter, the
Board recognized that under the Supreme Court’s Hudson decision,
adequate disclosure would include the major categories of expendi-
TELEVISION ARTISTS AFTRA (KGW RADIO) 479
leagues’ determination that this information must be au-
dited in order to meet the verification requirement articu-
lated in California Saw, I dispute their finding that a lo-
cal exclusive collective-bargaining representative (local
union) may satisfy its obligation through use of the “lo-
cal presumption,” in which the local union provides to
objectors the required data by using financial information
obtained from and pertaining to its national or interna-
tional, rather than the local union itself. Such a tantaliz-
ing alternative to the more exacting, individualized veri-
fication requirements set forth in the majority opinion
subverts the principles of Beck rooted in Hudson con-
cerning an objector’s ability to knowledgeably assess
whether he has been charged dues and fees for only those
activities germane to the union’s role as collective-
bargaining representative. Moreover, it offers no safe
haven to any local union that relies on it.
Initially, I note that in addressing the issue of local
presumption in this case my colleagues overreach. Here,
the Respondent did not resort to the use of the local pre-
sumption in providing information to the objecting non-
member Charging Party. Further, nowhere in the record
did it argue that, had it done so, it would have fulfilled its
obligation to provide sufficient information. To the con-
trary, the Respondent here undertook to provide detailed
information to the Charging Party concerning its own
expenditures. The majority nevertheless determined that
the Respondent had not fulfilled its responsibilities under
California Saw because, albeit detailed, this information
was not verified by an independent audit of expenditures.
However, although not raised by any party to this pro-
ceeding, my colleagues take it upon themselves to find
that the Respondent had an alternative available, i.e., the
use of the local presumption, which would allow it to
fulfill its obligation to provide sufficient information
while providing virtually no information whatsoever
concerning its own expenditures. Moreover, the majority
gives the Respondent another chance to avail itself of the
local presumption in ordering that the Respondent rem-
edy its failure to provide sufficient information by pro-
viding either audited information or information sup-
ported by a local presumption. In sum, in this context, I
conclude that my colleagues have reached well beyond
the facts of this case, the record, and the issues raised to
provide the Respondent with an escape from the verifica-
tion rule that they themselves have imposed.
More fundamentally, however, the majority’s proposal
does not in any manner comport with the fundamental
purpose underlying Beck and Hudson’s disclosure re-
quirements. The majority affirms that the fundamental
purpose for making the disclosure is to furnish an objec-
tor with a reliable basis for calculating the fees he must
pay sufficient to enable him to decide whether he wishes

objective.

tures, as well as verification by an independent auditor. California Saw
at fn. 83, quoting Hudson, supra, 292 fn. 18.
to contest his assessed fees. In furtherance of this pur-
pose, the majority has determined that the local union
must provide verified information assuring a nonmember
objector that “the expenses claimed were in fact made.”4
Yet, at the same time, the majority allows a local union
to fulfill its obligation by providing no information at all
concerning its actual expenditures.
Specifically, the majority’s footnote 15 suggests that a
local union may take the audited financial statement of
its national or international, which is not the exclusive
representative, and use the national or international’s
allocation between chargeable and nonchargeable expen-
ditures as its own. In doing so, the majority is apparently
assuming, without any support, that a local union’s ex-
penditures mirror those of its national or international,
both typically and for each specific year. Alternatively,
the majority is finding that local unions may use their
national or international’s allocation figures without re-
gard to either whether there is any rational basis for as-
suming the national or international’s allocation mirrors
that of the local union, or the fact that the local and the
national or international serve different roles in the union
structure and typically perform quite dissimilar func-
tions. In any event, a local union’s adoption of its na-
tional or international’s allocation as its own provides no
information at all to the nonmember objector concerning
the local union’s allocation.
Further, concerning the expenditures themselves, the
majority’s endorsement of the use of the local presump-
tion fails to recognize that, under California Saw and the
majority decision here, the objector is entitled to verifica-
tion “to determine that the expenses claimed were in fact
made (emphasis added).”5 Use of the local presumption
would allow local unions to meet their obligation to pro-
vide objectors with verified information in order for the
objectors to determine whether to challenge a local un-
ion’s assessment without providing one shred of
information concerning whether the local union in fact
made any expenditures. If the stated purpose of the
provision of information at this stage is to give an
objector sufficient information to make an informed
decision as to whether to challenge his assessment, the
majority’s alternative of local presumption falls woefully
short of this stated
Finally, as the majority acknowledges, should the ob-
jector decide to challenge the local union’s assessment,
the local union must bear the burden of establishing that
its actual expenditures were chargeable to the extent as-
serted. The majority would have us believe that this
makes the use of the local presumption benign because,
if there are any problems with the locally presumed in-
formation, it would be remedied at the challenge stage
4 This requirement, set forth in California Saw at 241, ultimately de-
rives from Chicago Teachers Union Local 1 v. Hudson, 475 U.S. 292
(1986).
5 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 480
when the local union must prove both the fact and the
allocation of its expenditures. Such proof must be pre-
ceded by an independent examination of the local un-
ion’s books and records at least as extensive as an audit,
so this deferral of proof to the challenge stage merely
postpones what may become inevitable under the major-
ity’s scenario. Faced with virtually no information con-
cerning a local union’s expenditures, an objecting non-
member would have no recourse short of challenging the
“locally presumed” figures in order to get the informa-
tion to which he was entitled concerning the local un-
ion’s actual allocation and expenditures. Thus, objectors
would inevitably become challengers, and local unions
which saved the cost of providing verified figures to ob-
jectors must provide this verified information at the chal-
lenge stage. Any significant deviation between the actual
and presumed allocation and expenditures would fuel the
objectors’ mistrust of their representative and produce
more challenges. To the extent the locally presumed in-
formation overstated the local union’s chargeable ex-
penses, the antecedent notice would likewise be inade-
quate to serve its purpose and would put the local union
back to where it was at the objection stage—obligated to
provide required information concerning its own expen-
ditures so objecting nonmembers could decide whether
to file challenges. This certainly cannot be what the Su-
preme Court intended in Beck and Hudson.

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.

WE WILL NOT withhold in escrow any portion of the
initiation fees paid by Peter Weissbach which was ex-
acted from him to pay for nonrepresentational activities.
WE WILL NOT provide to nonmember objectors ex-
penditure information that is neither verified by an inde-
pendent auditor 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 reimburse, with interest, Peter Weissbach
for that portion of his initiation fees which was exacted
from him for nonrepresentational activities.
WE WILL provide Peter Weissbach 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.

AMERICAN FEDERATION OF
TELEVISION AND RECORDING ARTISTS,
PORTLAND LOCAL

Dale B. Cubbison, Esq. for the General Counsel.
Gene Mechanic and Susan Dobrof, of Portland, Oregon, for the
Respondent.
Steven J. Nemirow, of Portland, Oregon, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. These
cases were tried at Portland, Oregon on December 13, 1990.
The charges were filed by Peter Weissbach on October 23,
1989, and February 21, 1990, and the consolidated complaint
was issued on July 12, 1990. The primary issue is whether
American Federation of Television and Recording Artists, Port-
land Local, the Respondent, failed to accord lawful rights of
financial core membership in violation of Section 8(b)(1)(A) of
the National Labor Relations Act.
On the entire record, including my observation of the de-
meanor of witnesses, and after consideration of oral argument
made by the General Counsel before the hearing closed and the
authorized posthearing brief filed by Respondent,1 I make the
following
FINDINGS OF FACT
I. JURISDICTION
This case associates to KGW Radio, an Oregon corporation
engaged at Portland in the business of radio broadcasting. Over
representative and material 12-month periods KGW Radio has
had gross revenue in excess of $500,000, while purchasing and
receiving goods and materials valued in excess of $50,000 at its
Portland, Oregon facilities directly from sources outside Ore-
gon, or from suppliers within the State which in turn obtained
them directly from outside Oregon.
On these admitted facts I find that KGW Radio is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and as is further admitted, that
Respondent is a labor organization within the meaning of Sec-
tion 2(5). Such circumstances establish jurisdiction over Re-
spondent for purposes of this proceeding under the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Case Context
On June 29, 1988, the United States Supreme Court issued
its decision in Communications Workers v. Beck, 487 U.S. 735
(1988). Drawing on analogous precedents as directly applicable
to this case, Beck held that agency fees paid pursuant to a un-
ion-security agreement may not be expended over the non-
member payer’s objection about activities of the labor
organization that are unrelated to collective bargaining, contract
administration, or grievance adjustment.

Respondent is a local affiliate of American Federation of
Television and Recording Artists (AFTRA), which is headquar-
1 Respondent filed supplemental and second supplemental posthear-
ing briefs on April 1 and May 1, respectively. Such filings without a
validating order are not authorized by the Board’s Rules and Regula-
tions; however I do not see any prejudice arising from these irregulari-
ties and do no more than record this observation.
TELEVISION ARTISTS AFTRA (KGW RADIO) 481
tered in New York City. It presently represents approximately
350 members covered by collective-bargaining agreements
with Portland area radio and television stations. The servicing
of these agreements, and fulfillment of larger functions such as
enforcing AFTRA broadcasting codes, organizing activity and
general administration, is performed by full-time Executive
Director Stuart Pemble-Belkin. He is assisted in his functioning
by part-time employee Loraine Heuer, an office clerical and
secretary whose weekly schedule can fluctuate as workload and
budgetary factors dictate. The local typically has annual dues
income of about $100,000.
Following the Beck decision AFTRA established a national
policy regarding dues objections, which developed definitions
of “chargeable” employment related expenditures and “non-
chargeable” expenditures. This written policy included a notifi-
cation of rights to nonmember dues payers, creation of audit
and accounting procedures, an entitlement of nonmembers to
make objections, a basis for calculating reduced dues owed by
objectors, and a dispute resolution procedure in terms of dollar
amounts found to be involved. A separate and detailed audit
protocol associated to this national policy exemplified (1)
chargeable collective-bargaining (and related) types of activi-
ties and expenditures; (2) nonchargeable institutional or ideo-
logical matters; and (3) “mixed activities” which might or
might not in whole or in part be chargeable under Beck. This
final group of mixed activities included lobbying, which
AFTRA defined as “designed to improve employee terms and
conditions of employment.” This protocol also created various
forms for use by affiliated locals in the application of Beck to
their activities, in express contemplation of audited summaries.
Peter Weissbach was employed as a talk show host by KGW
Radio on August 21, 1989. Respondent was then party to a 3-
year collective-bargaining agreement with KGW Radio which
was effective until July 1, 1991. The bargaining unit for which
Respondent was exclusive representative included Weissbach’s
occupation, and a union-security clause with standard phraseol-
ogy required that he become and remain a union member in
good standing by the 30th day of his employment. Over the
course of several months following this Weissbach and Re-
spondent exchanged correspondence concerning his desire, as
stated in an originating letter dated September 7, 1989, to pay
union dues only in proportion to Respondent's Beck-sanctioned
services. The upshot of this correspondence, and actions taken
between the parties as dealings extending into early 1990, was
that Weissbach was provided an annual schedule of final ex-
penses for a year ending December 31, 1989. Soon thereafter
he made a two-part payment of financial core dues, covering a
time period commencing generally with the end of his grace
period under the union-security clause following employment
and the end of a dues year later in 1990. A separately assessed
and paid initiation fee of $350 has been retained by Respondent
in an escrow account.
Accounting Matters
1. National office
The most recent accounting report entered into evidence re-
specting AFTRA was a schedule of fund expenses allocated
between chargeable and nonchargeable character for the 6-
month period ending April 30, 1989. As performed by New
York City CPA firm, Weber Lipshie & Co., this schedule of
more than $82 million in total AFTRA outlays resulted in a
tabulation of 85.37 percent as chargeable expenses and 14.63
percent as nonchargeable. Several notes were appended to the
schedule. The first was a one-page summary of “significant
accounting policies” which described the handling of deprecia-
tion and amortization, certain specific subjects such as treat-
ment of income taxes, severance pay and leases, plus comment
on AFTRA’s fundamental cash basis of accounting.
A second note to the schedule set forth definitions that had
guided the audit. As appearing verbatim in the schedule these
read:

Chargeable expenses are those incurred by [AFTRA] that re-
late to expenditures for those activities undertaken by
[AFTRA] to advance the employment-related interest of the
employees it represents. These “chargeable” expenditures in-
clude, but are not limited to the following expenses related to
negotiations with employers; enforcing collective bargaining
agreements; informal meetings with employer representatives;
member and staff committee meetings concerned with matters
relating to employment practices and/or collective bargaining
provisions; discussions of work-related issues with employ-
ers; handling employees’ work-related problems through
grievance and arbitration procedures, administrative agencies
or informal meetings; lobbying with respect to matters related
to conditions of employment; union administration and litiga-
tion relating to any of the above.

Nonchargeable expenses are those expenditures which are
spent for: Community services; lobbying which benefits rep-
resented employees as citizens rather than as workers; cost of
affiliations with non-AFTRA organizations; support of politi-
cal candidates who are favorably disposed to interest of repre-
sented employees; recruitment or members to the union;
members-only benefits.

The third note to the schedule briefly described the “signifi-
cant factors and assumptions” used in the allocating between
chargeable and nonchargeable expenses. Here 14 categories of
AFTRA outlays were covered which spanned subjects, or
groupings of subjects, from the largest at “salaries, payroll
taxes and employee benefit programs” of nearly $1 million to a
final and relatively insignificant $2736 for interest. Illustra-
tively the salaries, etc. category was allocated based on time as
spent by personnel, with the compensation paid to “assistants
and clerical personnel” of AFTRA allocated in the same per-
centage as their supervisors. Each of the remaining thirteen
subjects had comment relating it to Beck principles.
The transmittal letter dated June 20, 1989, which accompa-
nied this schedule advised AFTRA that the audited schedule
was produced “in accordance with generally accepted account-
ing standards,” however this was not to be taken as meaning
that it presented fund expenses “in conformity with generally
accepted accounting principles” because of the client’s cash
basis of operating (emphasis added). Doug Philips, a managing
partner of Weber Lipshie, testified that the schedule and alloca-
tion of fund expenses provided to AFTRA was done as an “au-
dit,” because this was the same “level of accountant’s report as
represented by its basic financial statements.
2. Portland local
Dennis Berggren is a licensed accountant with the Portland
area firm of Henness & Berggren, and has provided profes-
sional accounting work to Respondent for about 3 years.
Berggren’s usual services have been the organization’s year-
end financial report, its LM-2 for the U.S. Department of La-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 482
bor, and a “990” for the Internal Revenue Service. His account-
ing work for Respondent expanded in mid-1989, when he pre-
pared for the first time a “core report” covering the 6 months
ending June 30, 1989.
Berggren testified that he initially consulted material from
the National AFTRA office on the way of preparing a core
report, and then also referred to the recently produced schedule
of Weber Lipshie. This gave him the 85 plus percent/14 plus
percent allocation for per capita AFTRA remittancing, plus
guidance on classifying other categories of expenditure as be-
tween chargeable and nonchargeable.
As Weber Lipshie had done Berggren appended a series of
notes to his first core report for Respondent. Each of his three
notes correspond as to heading with Weber Lipshie’s. However
except for note two they were more limited in scope. The sum-
mary of significant accounting policies only treated income
taxes, Respondent’s cash basis of accounting and depreciation,
while note three as significant factors and assumptions used in
the allocation set forth only nine items. The statement of defini-
tions under note two was identical to its counterpart for the
National AFTRA schedule.
Berggren subsequently prepared a core report for calendar
year 1989. He testified that this was preceded by his accoun-
tancy function of creating a general ledger from all checks is-
sued, and obtaining computer generated categories for all of
Respondent’s annual expenditures. After a further banking
reconciliation the full 1989 core report was compiled in much
the same format as before. Berggren determined the principal
item of salary allocation from weekly time records prepared by
Pemble-Belkin. In these chargeable versus nonchargeable time
was segregated, including instance by instance labeling of spo-
radic “other” activities as a workweek breakdown by hours.
Here a 94.4-percent portion resulted, and this same percentage
was applied to the salary of Heuer to establish the allocation
pertinent to her work as Respondent’s sole clerical employee.
The total of all 20 expense categories in this year end core re-
port showed chargeable expenses as 88.37 percent of Respon-
dent’s overall function. The transmittal of this core report for
1989 was made by letter dated May 31, 1990, in which Even-
ness & Berggren expressly advised that their work did not con-
stitute an audit nor an opinion or assurance regarding the finan-
cial representations of management. Further, they stated that
the schedule so transmitted was not intended to present fund
expenses in conformity with generally accepted accounting
principles, by reason of Respondent operating essentially “on a
cash receipts and disbursements basis.”
Having examined this full year core report, and a related
compilation report covering Respondent’s revenue, expense,
and fund balance change for calendar year 1989, Philips testi-
fied that Berggren’s work was reasonably done. Philips held
such opinion because the unverified data provided Berggren by
Respondent resulted in the same accounting “level” as tradi-
tionally used for the Portland Local’s basic and recurring finan-
cial reports, and those of a governmentally required nature.
Issues
As framed by the consolidated complaint there are three spe-
cific issues involved in the case. While Weissbach alone is the
Charging Party these substantive issues are claimedly of gen-
eral application to “other objectors . . . other nonmem-
bers . . . and financial core members.”
The first issue is a three-part proposition of whether Respon-
dent failed in a Beck-mandated duty to institute proper proce-
dures for dues objectors, failed to provide notification of the
right to so object, and failed to establish a procedure whereby
allocations and calculations could be challenged.
The second issue is whether lobbying expenditures, or the
potential for lobbying expenditures, may be chargeable or po-
tentially chargeable to the dues of an objecting financial core
member.
The third issue is whether the allocation information fur-
nished to an objecting financial core member need be audited,
and thus independently verified, by an accounting firm in con-
formity with generally accepted accounting principles.
Discussion
The Beck case followed a grant of certiorari, made expressly
to resolve decisional conflicts between the circuits on “the im-
portant question” involved. In then rendering its decision the
court first disposed of points regarding NLRA preemption, the
authority of federal courts to rule in dues-objection cases on
grounds of the judicially created fair representation duty, and
the extent, if at all, that First Amendment rights might success-
fully be invoked.
Drawing from only one small part of the court’s total analy-
sis regarding jurisdictional questions, it was clearly enough
held that federal courts may pass, notwithstanding San Diego
Building Trades Counsel v. Garmon, 359 U.S. 236 (1959), on a
dues-objection claim grounded in Section 8(a)(3) where that
statutory provision of the NLRA emerges as a collateral issue
to the independent basis for relief. Having thus qualified NLRA
precepts as part of its rationale, the court revisited Machinists v.
Street, 367 U.S. 740 (1961), and Ellis v. Railway Clerks, 466
U.S. 435 (1984), concluding in the process that similarities
between Section 2, Eleventh of the Railway Labor Act and
Section 8(a)(3) itself revealed a congressional intent that the
same meaning was to be taken from these comparative provi-
sions of the two statutes. The Beck opinion also analyzed legis-
lative history on, the matter of compulsory unionism and the
related “free rider” issue as a traditional component of volun-
tary unionism in a narrow and, for purposes of this case, most
applicable sense. The Court cast its question as whether finan-
cial core members are required by their obligatory payment of
dues to support union activities beyond those germane to col-
lective-bargaining, contract administration, and grievance ad-
justment; saying in terse answer to this question that they need
not. In a conclusionary passage of Beck’s majority opinion, the
Court viewed Section 8(a)(3) as authorizing only the exemption
of fees and dues necessary to “performing the duties of an ex-
clusive representative of the employees in dealing with the
employer on labor-management issues.” Beck at 762–763.
The statutory provision on which the General Counsel
grounds the consolidated complaint here is Section 8(b)(1)(A).
While Section 8(b)(1)(A) does not have express treatment in
Beck, it was not merely the emergence of the collateral unfair
labor practice issue but also that the appealing union was seek-
ing to defend themselves on NLRA grounds that influenced the
Court’s holding. Specifically the Court found Federal jurisdic-
tion to decide an interpretive question under Section 8(a)(3)
because of the actionable duty of fair representation claim un-
derlying the Beck proceedings. This interplay is sufficient to
look to Beck, and the authorities relating thereto, for clues
TELEVISION ARTISTS AFTRA (KGW RADIO) 483
about how issues relating to activities of this small, modestly
budgeted local union fits into the large picture.
The clues are sparse at best. As an instance of non-Board
litigation Beck is grandiose in sweep and light in details of ap-
plication. My one point of departure is reference to “labor man-
agement issues,” this seemingly a broader notion than “collec-
tive bargaining” as coupled with contract administration
grounded in negotiated language and grievance adjustment, a
phenomenon of workplace dispute resolution even narrower in
its operation. I also observe that in the first of two underlying
decisions by the Court of Appeals, Fourth Circuit, a disallowed
category of expenditure was “lobbying efforts” on behalf, for
instance, of the Panama Canal Treaty and Equal Rights
Amendment; this category having been classified by the union
as “labor legislation.” Beck v. Communications Workers of
America (C.W.A.), 776 F.2d 1187, 1210–1211 (1985).
From a separate source, and notwithstanding that it appears
in a dissent, I note the scenario drawn by Justice Whittaker in
Street, supra at 780, wherein imagined dues remittance and
objector configurations could lead to “onerous and impractical”
remedies stemming from “problems” of accounting and proof.
In a case of comparable vintage to Street, involving too the
same railroad industry, a Supreme Court opinion in another
dues objection case noted that “[a]bsolute precision in the cal-
culation of such proportion is not, of course, to be expected or
required; we are mindful of the difficult accounting problems
that may arise.” Railway Clerks v. Allen, 373 U.S. 113, 122
(1963). In still another dues protest case the Allen decision has
recently been cited with approval as a longstanding precedent
under the Railway Labor Act for the proposition that unions
may not force nonmembers to support ideological or political
causes. Dean v. Transworld Airlines, 924 F.2d 805 (9th Cir.
1991). Additionally Service Employees Local 535 (North Bay
Center), 287 NLRB 1223 (1988) is noted, a case where the
Board adopted an administrative law judge decision rendered
prior to, and with stated awareness of, the Supreme Court’s
pending decision in Beck pursuant to its grant of certiorari. The
pointed commentary in Service Employees Local 535 was that
restriction of agency fee amounts existed at that point in time
only “under the RLA and in the public employment sector,” a
proposition for which Allen was specifically cited.
To the extent dues-objection issues have appeared in public
employment areas a lead case is Chicano Teachers Union v.
Hudson, 475 U.S. 292 (1986). The opinion in Hudson drew its
theoretical basis from Abood v. Detroit Board of Education,
431 U.S. 209 (1977), a case holding that nonunion employees
of the public sector have a constitutional right to prevent a un-
ion from spending part of their required service fees in contri-
bution to political candidates and political views unrelated to
collective bargaining. From this point of departure the Court in
Hudson dealt with the legal adequacy of procedures established
in that public employment setting for objecting teachers to pro-
test the handling of their dues. Hudson held that a valid proce-
dure must minimize risk that dues might temporarily be used
for impermissible purposes, that objectors have a clear state-
ment of the basis for their proportionate share of collective-
bargaining costs, and that disputes be amenable to prompt and
fair resolution. In a sufficient sense of the word these proce-
dural safeguards of Hudson are what paragraph 9(a) of the con-
solidated complaint alleges to be as one component of Respon-
dent’s overall failure to meet a duty of fair representation.
Respecting methods and standards of accounting an issue
found as part of the allegations contained in paragraph 9(b) of
the consolidated complaint, both parties cite Gwirtz v. Ohio
Education Association, 887 F.2d 678 (6th Cir. 1989); Andrews
v. Education Association of Cheshire, 829 F.2d 335 (2d Cir.
1987); and Dashiell v. Montgomery County, 134 LRRM 2242
(1990).2 On the basis of these cases the verification process was
characterized again as not requiring “absolute precision,” and
the task of classifying expenditures as chargeable and non-
chargeable was imposed on the union itself and not the authen-
ticating accountant. Andrews further specifically held that the
Hudson case should not be read to require that a union proce-
dure for dues objections should not be constitutionally infirm
simply because of not according the “least restrictive process
imaginable” for mounting protest.
Against this decisional background two major points should
be noted. First, this is not a public employee sector case, and
second, this proceeding arises under the Board’s statutory juris-
diction to prevent unfair labor practices as contrasted with Fed-
eral Court litigation where powers and considerations of the
forum are so much broader. In this sense I find no defect in
Respondent’s dues protest procedure developed as it was in
compliance with the voluntary policy devised by National
AFTRA in late 1988.3 The key definitions of chargeable versus
nonchargeable are plainly tied to the respective phenomena of
collective bargaining, or unrelated activity respectively. The
forms and instructions show a sincerity of purpose in fulfilling
fair proportioning, and the key factors of time breakdown as to
Pemble-Belkin’s actual work are well documented and devoid
of any claimed inaccuracy. The challenge procedure, even as-
suming its application in private sector employment, suffi-
ciently establishes a basis to effectively object, particularly
inasmuch as the respected American Arbitration Association is
used in the resolution of challenges. Notably that organization
has already established formal Rules for Impartial Determina-
tion of Union Fees, a valuable codification in dispute resolu-
tion, and comparable to the organization’s existing rules in
other areas where it has traditionally functioned.
In the last analysis the question is whether a traditional stan-
dard of accounting practices must apply in the typical Beck
situation. When deciding Industrial Security Services, 289
NLRB 459 (1988), the Board held an EAJA applicant to such a
standard, for purposes of determining eligibility relative to net
worth. This rationale, applicable for statutory and technical
reasons, is in stark contrast to the Beck-type disclosures that
could conceivably arise in many thousands of individual situa-
tions among the nationally spread, unionized work force. A
dissenting member simply found such a holding too strict and
“inconsistent with the intent of Congress,” however more sig-
nificantly the Board majority expressed its intention not to be
“harsh,” and held open that only “accurate and properly authen-
ticated” financial data was the real standard in satisfying a bur-
den of proof. Taking this thinking into account, and the Allen

2 This decision by a Federal District Court was affirmed at 925 F.2d
750 (4th Cir. 1991).
3 Respondent contends in its brief that the General Counsel failed to
prove nonreceipt of the AFTRA policy as set forth in the fall issue of its
national magazine. On the contrary Pemble-Belkin conceded that the
magazine would not have been furnished to Weissbach during the first
30 days of his employment, a period within which his initiating protest
was made. I see no further significance to this point other than to cor-
rect Respondent’s inaccurate claim.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 484
observation against requiring “absolute precision,” I conclude
that not only were Respondent’s Beck-responsive policies and
procedures appropriate compliance with the law, but that the
compilation accounting report was sufficient to meet policy
objectives of the law.
As to lobbying expenses the issue is moot in the first in-
stance. However beyond that, Respondent has anticipated a
mixed feature to the generic subject of lobbying by labor or-
ganizations, and for this reason is geared to set forth a break-
down of lobbying expenses should they occur. The case law
plainly and predictably excludes ideological and political
causes from what financial core members can be required to
support; however, there remain areas in which lobbying efforts
could have a clear and direct relationship to a represented bar-
gaining unit. This is most evident with regard to minimum
wage increase legislation, as done from time to time under the
Fair labor Standards Act. Here any increase in legally required
minimum compensation has the indirect result of lifting the
absolute wage floor of a bargaining unit, and at least narrowing
any gap between what is legally required and what is being
sought through collective bargaining.
The General Counsel amended out the word “nonrepresenta-
tional” from paragraph 9(b)(i) of the consolidated complaint,
and thus harmonized its contention that lobbying expenditures
by their very nature were nonchargeable and improper under
Beck. Because of the mootness involved, but more importantly
because in my view a lobbying expense could relate to “labor-
management issues” affecting a bargaining unit, I conclude that
no violation has occurred in terms of this subject.
A further issue concerns the manner of Berggren’s account-
ing services. He was not asked, the cases do not require, and his
profession does not equip him to apportion the outlays of his
client between matters fitting either the chargeable or non-
chargeable definitions he inherited from National AFTRA. The
disclaimer of having “audit[ed]” Respondent for its allocations
is but an instance of how the highest level of accountancy is not
required. It must be remembered here that, as Berggren and
Philips both effectively testified, even an accountant’s compila-
tion is not done without the acceptance of a reasonable degree
of awareness and diligence with respect to accuracy. The
American Institute of Certified Public Accountants (AICPA)
maintains “compilation and review standards” under which the
responsibility of an accountant is judged when “associated with
financial statements that are not audited.” These are specifically
intended to apply in situations where the accountant merely
assists in the client’s preparation of financial statements, “with-
out giving any assistance about them (i.e., compilation ser-
vices).” Arens and Loebbecke, “Auditing; An Integrated Ap-
proach,” 2d Edition (1980) Prentice-Hall, Inc. I also note Tama
Meat Packing Corp., 291 NLRB 657 (1988), in which, relative
to issues under Section 8(a)(5) of the Act, the Board held that
an inspection of financial records by procedures “less compre-
hensive than an AICPA audit” was warranted. Significantly,
too, the Board noted the exorbitant cost that would have applied
had a local union been required to pay for a full audit, the high-
est of three recognized modes of financial reporting by profes-
sional accountants.
The only untreated portion of the consolidated complaint’s
operative paragraph 9 is its subparagraph (c), in which Respon-
dent’s claimed failure to reduce Weissbach’s “initiation fees
(and dues)” is alleged to be a violation. This allegation provides
the basis to treat the escrowing of Weissbach’s $350 initiation
fee, an amount long since paid in and initially claimed by Re-
spondent to be unapportionable. The fact that this amount re-
mains in escrow long after Berggren’s 1989 report established
the 88 +/11 + allocation breakdown is not explained. I conclude
that Respondent’s failure to refund the proportionable amount
of Weissbach’s initiation fee is a sufficient flaw to require a
finding of unfair labor practices in that limited regard.
As to Respondent’s affirmative defense contending that
Weissbach has not exhausted internal remedies of the AFTRA
policy, I see no basis to apply a deferral principle in such re-
gard. As a private individual Weissbach is not positioned com-
parably with parties to a collective-bargaining relationship, the
instance in which deferral from a statutory procedure usually
arises. On this basis I reject Respondent’s amended affirmative
defense.
REMEDY
Having found that Respondent has engaged in, and is engag-
ing in, unfair labor practices within the meaning of the Act, I
shall recommend that it cease and desist therefrom and that it
take certain action designed to effectuate the policies of the
Act.
In remedy of the violation of Section 8(b)(1)(a) of the Act, I
shall recommend that Respondent refund, with interest, the
proportionate amount of Weissbach’s initiation fee that has
been withheld from him as an escrowed amount. Such reim-
bursement shall be in accordance with an interest computation
done in the manner prescribed by New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
The General Counsel has requested a remedy running to per-
sons other than Weissbach. I see no basis to broaden the scope
of this proceeding beyond Weissbach’s own individual dues
protest. Accordingly, I deny the General Counsel’s request to
include other “similarly situated” individuals.
CONCLUSIONS OF LAW
1. KGW Radio is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent has violated Section 8(b)(1)(A) of the Act by
unlawfully withholding the entire initiation fee paid by Weiss-
bach, including that portion paid by him which is not charge-
able as an expenditure for collective-bargaining purposes.
4. Respondent has not violated the Act in any other regard.
[Recommended Order omitted from publication.]