Food & Commercial Workers Locals 951, 7, & 1036 (Meijer, Inc.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 730 United Food and Commercial Workers Locals 951, 7 and 1036 (Meijer, Inc.) and Various Indi- viduals. Cases 16–CB–3850 (2–6, 9–25, 27, 33, 35–36) September 30, 1999 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX, LIEBMAN, HURTGEN, AND BRAME On January 31, 1997, Administrative Law Judge William J. Pannier III issued the attached supplemental decision. (Original decision omitted from publication.) The General Counsel, Respondent United Food and Commercial Workers Local 1036, and various Charg- ing Parties filed exceptions and supporting briefs, and the Respondents and various Charging Parties also filed answering or reply briefs.1 Additionally, the American Federation of Labor and Congress of Indus- trial Organizations filed a brief as amicus curiae. The Board has considered the decision and the re- cord in light of the exceptions and briefs and has de- cided to affirm the judge's rulings, findings, and con- clusions as modified and to adopt the recommended Order as modified. This case concerns application of the Supreme Court’s decision in Communications Workers v. Beck,2 which held that a collective-bargaining representative violates its duty of fair representation if, over the ob- jection of dues-paying nonmember employees, it ex- pends funds collected under a union-security agree- ment on activities unrelated to collective bargaining, contract administration, or grievance adjustment. The Respondents in this case are certain United Food and Commercial Workers local unions located in Michigan (Local 951), Colorado (Local 7), and California (Local 1036). The central issue in this case is the chargeability to nonmembers of fees related to expenditures for or- ganizing activities. A. Chargeability of Organizing Expenses 1. The judge’s findings The consolidated complaint alleged, among other things, that Local 951 and Local 7 violated Section 8(b)(1)(A) of the Act by allocating expenditures for organizing as chargeable to objecting nonmember em- ployees and by expending dues and fees collected from them for such activities. The judge dismissed this alle- gation against both Locals. For the reasons set forth in section A–3 below, we agree. 1 Specifically, the General Counsel filed exceptions and a support- ing brief; Charging Parties Mulder, Buck, Gibbons, and Hilton filed exceptions and a supporting brief; Charging Parties McReynolds and Kipp filed exceptions and a supporting brief; United Food and Com- mercial Workers Local 1036 filed cross-exceptions and a supporting and answering brief; United Food and Commercial Workers Local 951 filed an answering brief; United Food and Commercial Workers Local 7 filed an answering brief; Charging Party Hilton filed an an- swering brief; and Charging Parties Mulder, Buck, Gibbons, McReynolds, and Kipp filed a joint reply brief. 2 487 U.S. 735 (1988). Local 951 had three collective-bargaining agree- ments with Meijer, Inc., a Michigan retailer, covering various bargaining units.3 Each agreement contained a union-security clause. As recounted by the judge, Mei- jer employees Mulder, Buck, and Gibbons, on certain dates in 1988 and 1989, resigned their union member- ships and notified Local 951 that they objected to pay- ing for nonrepresentational activities. While Local 951 acknowledged each resignation, it continued to demand that each employee pay full membership dues, to be placed in escrow pursuant to Local 951’s service rebate procedure. Amounts attributable to what Local 951 deemed to be nonrepresentational activities were then to be remitted to each nonmember-employee on June 1 and December 1 of each year. The judge found that various aspects of Local 951’s conduct in regard to Mulder, Buck, and Gibbons violated Section 8(b)(1)(A) of the Act.4 The judge dismissed, however, 3 The three contracts were identified as the Newport Distribution Center Contract, the Retail Contract, and the Distribution Center Contract. 4 No exceptions were filed to the judge’s findings that Local 951 violated Sec. 8(b)(1)(A) by (1) requiring objecting nonmembers to exhaust remedies provided by its service rebate procedure for chal- lenging dues reductions prior to seeking judicial review; (2) continu- ing to collect the full amount of membership dues from objecting nonmembers; (3) failing to disclose to objecting nonmembers the activities for which 6.62 percent of its total annual expenditures had been made; (4) collecting and retaining fees from objecting nonmem- bers that were allocable to lobbying expenses; (5) failing to provide objecting nonmembers with information concerning the purposes for which the dues income that it remitted to United Food and Commer- cial Workers International Union was used; and (6) filing and pursu- ing in Federal court an application for an order to confirm an arbitra- tion award against three objecting nonmembers. Local 951 filed no exceptions to the finding that it unlawfully failed to provide information concerning the International’s expendi- tures of dues that the Local remitted to the International. Accord- ingly, it is unnecessary to reach the issue of the extent to which a Local Union is obligated to provide such information to objecting nonmembers. Cf. Teamsters Local 75 (Schreiber Foods), 329 NLRB No. 12, slip op. at 4 fn. 10 (1999) (sufficient disclosure for Local Union to inform objectors of the amount of “per capita tax” for- warded to affiliated bodies, as well as the proportion that was spent on nonrepresentational functions; not unlawful for Local to fail to breakdown how the affiliated organizations spent the money for- warded to them.) Member Hurtgen notes the Charging Parties filed exceptions with respect to the Local’s failure to report the amount of money sent to the International and the proportion thereof that was spent by the international on nonrepresentational functions. See Schreiber, supra. In agreement with these exceptions, and consistent with Schreiber, Member Hurtgen would find this failure to be unlawful. If the Local does not have this information, it must at least seek to obtain it from the International. We agree with the judge that Local 951 did not violate Sec. 8(b)(1)(A) by including in its challenge procedure a requirement that objectors appeal the Union’s determination of chargeable and non- chargeable expenditures to its executive board before presenting their 329 NLRB No. 69 FOOD & COMMERCIAL WORKERS LOCALS 951, 7, & 1036 (MEIJER, INC.) 731 an allegation that Local 951 violated Section 8(b)(1)(A) by allocating expenditures for organizing as chargeable to nonmembers. Local 7 had collective-bargaining agreements with City Markets, a retail grocer, covering employees in Glenwood Springs, Fruita, Grand Junction, and Steam- boat Springs, Colorado. Local 7 also had a collective- bargaining agreement with Champion Boxed Beef, a beef processor, covering its Denver employees. These collective-bargaining agreements contained union- security clauses, except that City Markets employees in Glenwood Springs and Fruita were not subject to a union-security provision in the 1990–1993 collective- bargaining agreement. On various dates in 1989, nine City Markets em- ployees in Glenwood Springs,5 one in Grand Junction,6 and one in Fruita7 notified Local 7 that they were re- signing their union memberships and objected to pay- ing for nonrepresentational activities. Additionally, on certain dates in 1989, three employees of Champion Boxed Beef8 notified Local 7 that they resigned their union memberships and objected to paying for nonrep- resentational activities.9 In response, Local 7 sent let- ters to the employees acknowledging their election of “financial core member” status, advising them of the reduced fees for which they were obligated, and in- forming them of Local 7’s major expenditures, includ- ing a designation of chargeable and nonchargeable ex- penses. These letters and the statement of chargeable expenditures enclosed with them indicated that Local 7 considered expenditures for organizing activities to be chargeable to objecting nonmember employees. Other than the issue of organizing expenses, all complaint allegations regarding Local 7’s conduct or policies in response to these employees’ election of objecting nonmember status were resolved in a settlement ap- proved by the judge.10 challenges to an impartial arbitrator. Under this procedure, an objec- tor may appeal the Union’s determinations at the next regularly scheduled meeting of the executive board, which must make a deci- sion within 15 days. The employee then has 10 days to object to the executive board’s decision. This is a reasonably expeditious sched- ule, and we therefore reject the General Counsel’s exception contend- ing that the initial step results in unreasonable or arbitrary delays in the process of placing a challenge before an arbitrator. See Team- sters Local 75 (Schreiber Foods), supra, slip op. at 5 (finding no violation in similar appeal procedure with “expedient time dead- lines”). Member Hurtgen also notes that the employee can forego arbitration altogether and make his claim to the NLRB. 5 Employees Berg, Flewelling, Hass, McReynolds, McVey, Schierbrock-Hutchins, Shaffer, Vance, and White. Employees Fle- welling and Hass transferred from Glenwood Springs to Grand Junc- tion on October 7, 1989. 6 Employee Whaley. 7 Employee Kipp. 8 Employees Boyens, Jones, and Marshall. 9 Employees Jones and Marshall rejoined Local 7 in January 1990. 10 Charging Parties McReynolds and Kipp excepted to the judge’s approval of the settlement. We adopt the judge’s approval of the In dismissing the complaint allegations that Locals 7 and 951 violated Section 8(b)(1)(A) by allocating ex- penditures for organizing as chargeable to nonmem- bers, the judge rejected contrary precedent in Railway Labor Act and public sector employment cases. The judge noted that the Board had concluded in California Saw & Knife Works11 that Railway Labor Act and pub- lic sector case precedent does not govern evaluation and allocation of union expenditures under the Act. Reviewing Congress’ findings set forth in Section 1 of the Act, the judge found that, under the Act, employees of a particular employer or of employers in a particular industry cannot be viewed in isolation. Rather, Con- gress considered it necessary to view the entire em- ployment picture. The judge further found that, under the congressional policies set forth in Section 1, in- cluding Congress’ concern with the free flow of com- merce and its desire to eliminate obstruction to com- merce by encouraging the practice and procedure of collective bargaining, organizing is an activity consis- tent with representation and a necessary incident of one means chosen by Congress to promote the free flow of commerce. The judge did not make a ruling on the expert testimony that was presented concerning the proposition that wages, benefits, and working condi- tions of employees working for one employer are af- fected by the wages, benefits, and working conditions which prevail in the industry or area. He found, how- ever, that Congress believed this proposition to be true. He further noted that it is a commonly held belief that the competitiveness of a unionized employer is ad- versely affected when that employer’s competitors are not unionized, because those competitors possess greater latitude to reduce prices than does the union- ized employer. This belief is a basis for unionized em- ployers’ objections to unions’ demands for increased wages and benefits. Therefore, it is a means for em- ployer resistance to the improvement of employees’ wage rates and purchasing power that Congress sought to achieve through protecting the right of employees to organize and become represented. Consequently, fail- ing to categorize organizing as a representational activ- ity, he reasoned, would undermine Congress’ stated means for correcting ills that Congress found to re- strain the free flow of commerce. Additionally, to avoid perceived constraints imposed by unionization on their ability to meet lowered prices of nonunion competitors, employers sometimes retaliate against employees who seek union representation. Such em- ployer conduct creates industrial strife, disrupts em- ployees’ earnings, and prompts the expenditure of pub- settlement for the reasons he stated in his Order Granting Motion To Approve Settlement Agreements. 11 320 NLRB 224 (1995), enf. sub nom. Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. denied sub nom. Strang v. NLRB, 525 U.S. 813 (1998). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 732 lic resources. Thus, situations outside employees’ im- mediate employment relationship can affect their own representation and continued employment. Based on these considerations, the judge concluded that organiz- ing activities are a necessary incident of collective bar- gaining and contract administration and, thus, are rep- resentational. Accordingly, he dismissed the complaint allegations that Locals 7 and 951 violated the Act by charging nonmembers for organizing expenses. 2. The parties’ contentions In excepting to the judge’s dismissal, Charging Par- ties Mulder, Buck, Gibbons, and Hilton rely on the Supreme Court’s finding in Ellis v. Railway Clerks,12 that organizing expenses are nonchargeable to object- ing nonmembers under the Railway Labor Act. The Charging Parties contend that Ellis found organizing expenses nonchargeable because Congress’ justifica- tion for amending the Railway Labor Act to authorize the union shop was to prevent bargaining unit employ- ees from not paying for the union’s performance of its statutory functions on their behalf, and organizing nec- essarily is directed not at unit employees but, rather, at employees outside the bargaining unit. The Charging Parties contend that this analysis is no different under the National Labor Relations Act. They note that the Supreme Court in Beck13 found the provisions of the Railway Labor Act and the National Labor Relations Act that authorize compulsory unionism to be identical in all material respects and that Congress “intended the same language to have the same meaning in both stat- utes.”14 They further note that the Supreme Court in Ellis was presented with the same arguments that the Respondents made in this case. The Charging Parties also contend that Local 951 represents employees in a variety of industries and that organizing among em- ployers in these various industries provides, in the words of Ellis, “only the most attenuated benefits to collective bargaining on behalf of the dues payer.”15 Additionally, the Charging Parties contend that the testimony of Professors Paula Voos and Charles Craypo, who testified on behalf of the Respondents, was biased and superficial. They particularly argue that Professor Voos’ report showing a positive rela- tionship between grocery employees’ earnings and the percentage of unionized grocery employees in given metropolitan areas showed that the percentage of un- ionization had, at most, only a small effect on wages, failed to take into account certain other variables, such as levels of unemployment, that affect wage rates, and covered only the 73 largest cities, where grocery em- ployees tend to be more heavily unionized. The 12 466 U.S. 435 (1984). 13 Fn. 2, above. 14 487 U.S. at 747. 15 Id. at 452. Charging Parties note that Professor Morgan Reynolds, called by the General Counsel, testified that the rela- tionship between grocery employees’ earnings and the percentage of unionized grocery employees was weaker than that shown by Professor Voos and that there were more lines of causation than her study took into account. Charging Parties McReynolds and Kipp, who adopt the other Charging Parties’ arguments, additionally contend that Professor Voos’ report and testimony are irrelevant to the City Markets stores in Glenwood Springs and Fruita, Colorado, because these are small towns in rural areas, while Professor Voos’ report con- cerned only grocery employees in the 73 largest met- ropolitan areas in the United States. The General Counsel sets forth both arguments against and arguments in favor of finding organizing expenses chargeable, but ultimately contends that or- ganizing expenses should be found chargeable and the judge’s dismissal of the complaint allegation affirmed. As an argument against chargeability, the General Counsel notes that organizing is directed toward unrep- resented employees and therefore could be said to be unrelated to the union’s performance of its duties to the employees whom it represents. Additionally, any ef- fect on the union’s bargaining strength derived from its organizing efforts is arguably too attenuated to support finding organizing expenses to be chargeable. In support of chargeability, the General Counsel notes that in Lehnert v. Ferris Faculty Assn.,16 decided after Ellis, the Supreme Court held that union activities need not be performed for the direct benefit of the nonmember objectors’ bargaining unit in order to be chargeable to those objectors. Rather, to be chargeable, there must be “some indication that the payment is for services that may ultimately inure to the benefit of the members of the local union.”17 The General Counsel contends that the Respondents’ efforts to organize other employers’ employees are germane to their duties as representatives of the already organized units herein because all unit employees, including nonmember ob- jectors, benefit from uniform wage and benefit stan- dards in a job market that can be achieved only through organizing unorganized employees in that market. The General Counsel contends that evidence presented by the Respondents shows a strong connection between the level of union organization among workers in a given market area and the employees’ wage and benefit levels. Thus, the Respondents’ continuing efforts to ensure the presence of other, organized units, in the words of Lehnert, “ultimately inure[s] to the benefit of ” all unit employees, including nonmember objectors. The General Counsel distinguishes Ellis’ finding orga- 16 500 U.S. 507 (1991). 17 Id. at 524. FOOD & COMMERCIAL WORKERS LOCALS 951, 7, & 1036 (MEIJER, INC.) 733 nizing expenses nonchargeable, on the ground that Ellis relied on legislative history of the Railway Labor Act in which a railway union president expressly de- nied that the union shop would strengthen the union’s bargaining power. The General Counsel observes that the National Labor Relations Act has no similar legis- lative history and that the railway and airline industries were already heavily organized in 1951 when the Railway Labor Act was amended to permit union shops, while the industries covered by the National Labor Relations Act are much less heavily organized. In urging that the judge properly found organizing expenses chargeable, Respondent Local 7 contends that organizing benefits already organized employees be- cause organizing within a given labor market tends to increase all wages within the market and because, to bargain effectively, employees must form multiunit labor organizations to match the institutional strength of employers. The legislative history shows that, in fashioning the Act, Congress had these economic con- siderations in mind. Local 7 further contends that it is axiomatic among economists that there is a positive relationship between the extent of organization in an industry and negotiated wage rates. This relationship has been demonstrated through empirical studies as well as specific examples presented in this case. Ex- perienced labor negotiators also accept this proposition as a matter of common sense, because the presence or absence of significant nonunion competition is a key factor in shaping employers’ contract proposals. Local 7 contends that Ellis is distinguishable because its pri- mary basis for finding organizing not chargeable was the legislative history of the Railway Labor Act, which is completely different from the legislative history of the National Labor Relations Act. While the Railway Labor Act essentially ratified an existing system of collective bargaining in a fully organized industry, the National Labor Relations Act was aimed at protecting the right to organize as well as the right to bargain col- lectively. Respondent Local 951 contends that organizing ex- penses are germane to collective bargaining, and thus chargeable, because the extent to which an industry or industries are organized directly affects the ability of a union to negotiate wage rates and working conditions. Local 951 contends that this proposition was shown by the testimony of economists and union negotiators, the design and purpose of the Act, and Supreme Court de- cisions recognizing a union’s legitimate interest in eliminating nonunion competition in wages and work- ing conditions to benefit its organized members. The American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) contends that or- ganizing expenses are chargeable because there is a strong relationship between union organizing and col- lective bargaining. According to the AFL–CIO, spreading the combination of workers beyond one shop—i.e., organizing—is the predicate for the NLRA’s declared purpose of “restoring equality of bargaining power between employers and employees” through the “practice and procedure of collective bar- gaining” as called for by Section 1 of the Act. Con- gress’ intent in passing the NLRA was, in part, to per- mit employees of different employers to band together and to bar company-dominated unions, which did not permit association of employees beyond those of the single employer. Further, in passing the Taft-Hartley amendments in 1947, Congress defeated a proposal to ban industry wide bargaining because it recognized that, for collective bargaining to function properly, “employees must make their combination extend be- yond one shop”; otherwise “[t]he organized workers would . . . be required to conform to the standards of the lowest paid, unorganized workers.”18 Further, as a factual matter, the AFL–CIO contends that, for a union to maintain sufficient staff and other resources to en- gage in effective collective bargaining, organizing must extend beyond a single bargaining unit and em- ployees of a single employer. Similarly, multiunit or- ganizing is necessary for a union to achieve the equal- ity of bargaining power that the Act contemplates. Only diversification and size provide the union with means to withstand a long strike or lockout, such as an adequate strike fund and dues-paying members who are employed by employers not involved in the work stoppage. Further, as competition from an employer’s nonunion competitors and the presence of large pools of unorganized labor undermine a union’s ability to negotiate better terms for represented employees, un- ions must seek to organize nonunion employees in both the relevant product market and labor market in order to engage successfully in collective bargaining. Fi- nally, the AFL–CIO distinguishes Ellis on the basis of the unique legislative history of union-security agree- ments under the Railway Labor Act, which is totally different from the history of such agreements under the NLRA. 3. Discussion In California Saw, the Board held that a particular union expense attributable to activities outside an ob- jector’s bargaining unit may properly be charged to objectors only if it is (1) “germane to the union’s role in collective-bargaining, contract administration and grievance adjustment” and (2) incurred “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.’”19 Having considered the evi- 18 1 LMRA Leg. Hist. 680 (Rep. Price). 19 320 NLRB at 239, quoting Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 524 (1991). The standard for expenses incurred for activi- ties within the objector’s bargaining unit is simply that they be “ger- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 734 dence, the judge’s decision, and the parties’ arguments, we find that, at least with respect to organizing within the same competitive market as the bargaining unit employer,20 organizing expenses are chargeable to bar- gaining unit employees under the California Saw stan- dard. We therefore find that Locals 7 and 951 did not breach their duty of fair representation by charging objecting nonmembers for organizing expenses. Our conclusion is based on the language of the Act and its underlying policies and on the economic realities of collective bargaining in general and in the retail food industry particularly. Also, as set forth below, we find that the Supreme Court’s Ellis decision is distinguish- able and not controlling under the NLRA. At the outset, we note that the close relationship be- tween organizing and collective bargaining is apparent from the language of the Act itself. In setting forth its findings and policies, Congress, in Section 1 of the Act, found that the denial of employees’ rights to or- ganize and bargain collectively had, among other things, so diminished employment and wages “as sub- stantially to impair or disrupt the market for goods.” Further, the inequality of bargaining power between employers and unorganized employees “tend[ed] to aggravate recurrent business depressions by depressing wage rates and purchasing power of wage earners” and “by preventing the stabilization of competitive wage rates and working conditions within and between in- dustries.” Congress further found that granting legal protection to employees’ rights to organize and bargain collectively “remov[ed] certain recognized sources of industrial strife” and “restor[ed] equality of bargaining power between employers and employees.” Congress thus declared it to be the policy of the United States to eliminate “obstructions to the free flow of commerce” by “encouraging the practice and procedure of collec- tive bargaining” and protecting workers’ “exercise of full freedom of association, self-organization, and des- ignation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment.” These policy statements make plain that Congress envisioned broad economic bene- fits to society flowing from the organization of em- ployees for the purposes collective bargaining. Im- plicit is Congress’ understanding that organization of mane” to the union’s representational role, i.e., the first of the two tests for extra-unit expenses. 20 There is no contention here that Local 7 and Local 951 have sought to organize employees of employers who are not competitors of the employers of the employees represented by the Respondents. Nor do we read the judge’s decision as holding that a union’s costs of organizing beyond the competitive market are chargeable to objec- tors. Accordingly, the organizing expenses that we find chargeable here are limited to those spent by Local 7 and Local 951 within the competitive market. We find it unnecessary to decide and shall defer to another case the question of whether unions may charge objectors for organizing costs incurred outside the competitive market. multiple groups of employees, not just a single bar- gaining unit or the employees of a single employer in an industry, was necessary to achieve its goals of stabi- lizing wage rates and preventing depression of em- ployees’ wage rates and purchasing power. Beyond the language and policies of the Act, there is abundant evidence that, in collective bargaining, un- ions are able to obtain higher wages for the employees they represent, whether union members or not, when the employees of employers in the same competitive market are unionized. Expert testimony established that economists generally agree that there is a positive relationship between the extent of unionization of em- ployees in an industry or locality and negotiated wage rates. That is, represented employees’ wage rates in- crease or decline as the percentage of employees who are unionized increases or declines. A study prepared by Dr. Paula B. Voos, associate professor of economics and industrial relations at the University of Wisconsin- Madison, surveyed existing research and found that, out of some 20 studies by economists on the issue, all but two had found a significant positive relationship between the percent of employees organized and the level of union wages. Dr. Charles Craypo, chair of the economics department at the University of Notre Dame, testified that the relationship between union organization and union bargaining power was first ob- served by economists early in this century and now is taken for granted by institutional labor economists. Even Dr. Morgan Reynolds, Professor of Economics at Texas A&M University, who testified as a witness for the General Counsel,21 acknowledged that a positive relationship between the percent of employees organ- ized and the level of union wages existed, although he believed that it was weaker than portrayed by Professor Voos.22 Additionally, the record contains persuasive evi- dence that the positive relationship between the extent of unionization of employees and negotiated wage rates exists specifically in the retail food industry, the principal industry in which Locals 7 and 951 represent employees. In her study, Professor Voos examined whether the wages of represented supermarket workers were influenced by the proportion of all grocery store workers unionized in the same metropolitan area. The study examined data for 73 metropolitan areas across the United States, using multiple regression analysis and controlling for numerous variables, including re- 21 At the hearing, the General Counsel took the position that orga- nizing expenses were not chargeable and that Locals 7 and 951 had violated Sec. 8(b)(1)(A) by charging objecting nonmembers for orga- nizing expenses. 22 When asked whether he and Dr. Voos agreed that there was “some nexus between the degree of organization and union wages,” Dr. Reynolds replied, “Yes. It’s not a fool’s game. There’s something here worth serious study. Yes.” FOOD & COMMERCIAL WORKERS LOCALS 951, 7, & 1036 (MEIJER, INC.) 735 gion of the country and city size. The study found that there is a positive and significant relationship between the average hourly earnings of represented grocery store employees and the proportion of grocery store employees under union representation in the same met- ropolitan area. Dr. Voos’ study states that this positive relationship is explained in theoretical economics literature on the basis that union bargaining power is enhanced and management is more willing to negotiate higher wage rates when more competitors are facing the same union costs. Additionally, a higher percentage organized increases the union wage by lowering the elasticity of labor demand. Dr. Craypo similarly explained that unions try to eliminate or at least minimize the differ- ences in workers’ terms and conditions of employment among employers who are in competition with each other and thus preclude such employers from compet- ing on the basis of labor costs. The more successful a union is at organizing competing employers, the greater will be its bargaining power and thus its ability to obtain higher wage rates, according to Dr. Craypo. The close link between represented employees’ wages and the percentage of employees who are union- ized was illustrated by numerous examples. Dr. Craypo and Local 7 Vice President Al Gollas both tes- tified concerning the level of organization and wage rates in the meatpacking industry. During the period of 1945–1968, the meatpacking industry was 90 percent organized. Pattern bargaining was followed and em- ployee wages and benefits were generally uniform throughout the industry. Subsequently, new, largely nonunion companies entered the industry, paying wages far below union wage rates. As the new firms expanded rapidly, the union could not maintain the prior wage levels at the unionized firms, which insisted on concessions so they could compete with the nonun- ion companies. This led to repeated concessionary contracts and a downward wage spiral during which the union was unable to maintain a wage floor. A number of the unionized firms went out of business or sold out to the newer companies, which became domi- nant in the industry. Starting in the late 1980s, after the union had embarked on a major organizing effort and finally succeeded in bringing some of the newer firms’ plants under collective-bargaining agreements, contractual wage levels finally stabilized and began to rise. In sum, when the percentage of the meatpacking industry that was organized decreased, wages of repre- sented employees likewise decreased, and when major elements of the industry subsequently were organized, wages increased.23 23 The rise of low-wage, nonunion firms in the meatpacking indus- try also affected employees in the retail supermarket industry. Meat- packing firms began offering prepackaged, precut “boxed beef,” in which the final processing that traditionally had been done by meat- Dr. Craypo and former Local 7 President Charles Mercer also testified concerning the relationship be- tween union wage levels and percentage of unionized employees in the Denver area supermarket industry, where three unionized employers made up about 90 percent of that market. After a nonunion chain, Cub Foods, opened stores in Denver in 1987, the organized employers contended that they could not compete with Cub because their labor costs were much greater than those of Cub. Ultimately Local 7 agreed to a $1.45 per hour reduction in wages after the employees had struck over deeper, proposed wage cuts. Local 7 thereafter conducted a successful effort at organizing Cub, and in the subsequent contract negotiations in 1990, was able to gain wage increases from the unionized employers. Once again, the wage rates of union-represented em- ployees were directly affected by the percentage of employees who were organized. Local 951 President Robert Potter testified concern- ing the local’s bargaining relationship with Meijer, whose stores sell both food and mercantile (nonfood) products and are three to four times the size of a nor- mal supermarket, employing about 700 employees each. He recounted that, under successive collective- bargaining agreements, Meijer’s food clerks have con- tinually received a higher hourly rate than mercantile clerks, even though their duties are largely identical. The reason for this disparity is that the mercantile in- dustry in Michigan is only about 10 percent organized, while organization in the supermarket industry is sub- stantially greater. Stressing the need for a “level play- ing field” with its competitors, Meijer has insisted on paying the mercantile clerks less than the food clerk rate because of the lower-wage, nonunion competition it faces in the mercantile industry. Thus, Meijer’s clerks’ wages have been directly affected by the differ- ence in the levels of organization of Meijer’s competi- tors in the two industries in which it operates. Robert Bender, who served until 1992 as Local 7’s Wyoming director, testified concerning Local 7’s con- tract negotiations with various food retailers. Local 7 represents employees of Safeway and Albertson’s in both Colorado and Wyoming, but the wage rates paid by these firms’ Wyoming stores have consistently been significantly lower than those paid by the same com- pany’s stores in Colorado. Local 7 has repeatedly sought to have the Wyoming stores pay the Colorado rates, but both employers have refused, for the stated reason that the retail grocery industry in Wyoming is much less organized than it is in Colorado and, thus, cutters in retail stores was performed instead by meatpacking em- ployees. Because the meatpacking employees’ wages were so much lower than those of unionized retail meatcutters, food retailers began purchasing boxed beef from meatpackers, rather than having their own meatcutters perform this work. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 736 they have significant lower-wage, nonunion competi- tion in Wyoming. Indeed, employer demands for a “level playing field” with nonunion competitors who have lower labor costs are a recurring refrain in contract negotiations, accord- ing to testimony of both Local 7 and Local 951 nego- tiators. For example, one employer told Local 7 nego- tiator Al Gollas, “I cannot pay any more than the non- union competition. You guys need to go out and organ- ize them and get their wages up. We don’t mind pay- ing the wages as long as everyone else is paying the same thing.” In sum, we find that Congress’ intent as reflected in Section 1 of the Act, the knowledge and views of ex- perts in the field of economics, and the evidence re- viewed above all forcefully demonstrate that, under the National Labor Relations Act, organizing is both ger- mane to a union’s role as a collective-bargaining repre- sentative and can benefit all employees in a unit al- ready represented by a union. Unions are able to nego- tiate higher wages for the employees they represent when the employees of employers in the same competi- tive market are organized, and unions are less able to do so when they are not organized. Thus, represented employees, whether or not they are members of the union that represents them, benefit, through the results of collective bargaining, from that union’s organization of other employees and consequently, under Beck, may be charged their fair share of the union’s organizing expenses. Accordingly, we adopt the judge’s finding that Locals 7 and 951 did not violate Section 8(b)(1)(A) by charging objecting nonmembers for or- ganizing expenses. The Supreme Court’s decision in Ellis does not pre- clude us from reaching this conclusion.24 Ellis was an action by airline employees challenging fees charged by the union that represented their bargaining unit un- der the Railway Labor Act. As we held in California Saw, precedent under public sector labor law and the Railway Labor Act, although possibly providing useful guidance, is not binding in the context of the NLRA.25 In this instance, we find that Ellis’ rationale in holding 24 Nor does the Court’s later decision in Beck. That decision sim- ply held that Sec. 2, Eleventh of the Railway Labor Act and Sec. 8(a)(3) of the NLRB Act are materially identical and must be inter- preted identically to prohibit the collection of dues in excess of those necessary for performing the duties of an exclusive bargaining repre- sentative. 487 U.S. at 745, 752. But as Judge Posner noted in up- holding our decision in California Saw, “Beck left unresolved the definition of [this] agency function” and “[a]ll the details necessary to make the rule of Beck operational were left to the Board.” Ma- chinists v. NLRB, 133 F.3d 1012, 1015 (7th Cir. 1998) (the task of “crafting the rules for translating the generalities of the Beck deci- sion” left to the Board). Our holding herein is an exercise of the function left open to us by Beck of defining the parameters of union expenditures lawfully chargeable to objectors. 25 320 NLRB at 227. organizing expenses nonchargeable is inapplicable to cases under the NLRA. In finding that the union improperly charged object- ing nonmembers for organizing expenses, the Court in Ellis principally relied on the legislative history of the 1951 amendment that added Section 2, Eleventh to the Railway Labor Act, permitting parties under that stat- ute to enter into union-security agreements. The Court pointed to Brotherhood of Railway, Airline and Steam- ship Clerks (BRAC) President George Harrison’s ex- press disclaimer in congressional hearings that the un- ion shop was sought to strengthen the bargaining power of unions. As the Court noted, “When asked if the union shop would ‘strengthen your industry-wide bargaining as it presently exists in the railroad indus- try,’ Harrison replied: ‘I do not think it would affect the power of bargaining one way or the other.’”26 The Court therefore concluded that Congress had not aimed to enhance organizing efforts by amending the Railway Labor Act to authorize the union shop. The Court fur- ther concluded that using dues exacted from an object- ing employee to organize outside the employee’s bar- gaining unit could afford “only the most attenuated benefits”27 to collective bargaining on behalf of that employee. Finally, the Court added that, as organizing outside the bargaining unit worked “only in the most distant way”28 to benefit employees who were already organized, such organizing was not the sort of union- provided benefit that Congress had in mind in authoriz- ing union security so that “free-riders” would be re- quired to pay for the benefits that they received. The legislative history of the Railway Labor Act re- garding union security and organizing on which the Court relied is, however, wholly unlike that of the Na- tional Labor Relations Act regarding those subjects. The bill that became the Railway Labor Act, enacted in 1926, was “the product of negotiations between em- ployers and employees.”29 [R]epresentatives of a great majority of all the em- ployers and all the employees of one industry con- ferred . . . for the purpose of creating by agreement a machinery for the peaceful and prompt adjust- ment of both major and minor disagreements that might impair the efficiency of operations or inter- rupt the service they render to the community.30 26 466 U.S. at 451 fn. 12. 27 Id. at 452. 28 Id. at 453. 29 “Railroad Labor Disputes: Hearings on H.R. 7180 Before the House Comm. on Interstate and Foreign Commerce,” 69th Cong., 1st Sess. 198 (1926) (statement of D.R. Richberg). 30 Id. See also Machinists v. Street, 367 U.S. 740, 758 (1961). (It is accurate to say that the railroads and the railroad unions between them wrote the Railway Labor Act of 1926 and Congress formally enacted their agreement). FOOD & COMMERCIAL WORKERS LOCALS 951, 7, & 1036 (MEIJER, INC.) 737 Thus, the Railway Labor Act represented an agree- ment by management and labor on a system for resolv- ing disputes between them in order to avoid interrup- tion of rail service. As stated by the Supreme Court four years after the Railway Labor Act was passed, its “major purpose . . . was to provide a machinery to prevent strikes.” Texas & N.O.R. Co. v. Railway Clerks, 281 U.S. 548, 565 (1930). Specifically, the 1926 Act imposed on both employers and the authorized representatives of their employees the obligation “to make every reasonable effort to enter into and maintain agreements concerning rates of pay, rules and working conditions, and to settle all disputes with all expedition in conference” with each other. Id. at 567–568. In fact, the Court later observed that most of the Act’s provisions are singu- larly devoted to carrying out this policy objective. Virginian Ry. Co. v. System Federation, 300 U.S. 515, 553 (1937).31 Indeed, when the statutory purpose of avoiding industrial strife was viewed by Congress as being undermined by the railroads’ creation and main- tenance of “company unions,” it undertook major revi- sions of the Act in 1934 “aimed at securing settlement of labor disputes by inducing collective bargaining with the true representative of the employees and by preventing such bargaining with any who do not repre- sent them.” Virginian Ry. Co., 300 U.S. at 548. See also Machinists v. Street, 367 U.S. at 759 (“A primary purpose of the major revisions made in 1934 was to strengthen the position of the labor organizations vis-a- vis the carriers, to the end of furthering the success of the basic congressional policy of self-adjustment of the industry’s labor problems between carrier organiza- tions and effective labor organizations”). In short, the Railway Labor Act’s “framework for fostering volun- tary adjustments between the carriers and their em- ployees in the interest of the efficient discharge by the carriers of their important functions with minimum disruption from labor strife has no statutory parallel in other industry.” Street, supra at 755. (Emphasis added.) It is apparent from the foregoing that unlike the NLRA, the focus of the Railway Labor Act was not on organizing. When the Railway Labor Act was enacted in 1926, railroad employees were already substantially organized. Indeed, their unions negotiated with the railroads to formulate the bill that became the Railway Labor Act. Additionally, in 1951, when the Railway Labor Act was amended to permit the union shop, the railroad industry continued to be highly organized, as 31 See, e.g., Sec. 2, Second, Third, and Sixth establishing steps for adjusting disputes in conference between the freely chosen represen- tatives of the parties; Sec. 3 providing for submission of unsettled disputes to an adjustment board or to the National Mediation Board under Sec. 4; and Secs. 7, 8, and 9 providing for voluntary arbitration of disputes not settled pursuant to the above provisions. 75 to 80 percent of all railroad employees were union members at that time.32 The unions’ argument in favor of union-security agreements, which was decisive with Congress, was that the costs of operating the fully es- tablished collective-bargaining system then existing in the railroad and airline industries should be shared equally among the represented employees.33 In contrast to the Railway Labor Act, when the Na- tional Labor Relations Act was enacted, the industries that it covered were, in general, thinly organized, and one of the principal purposes of the Act was to foster organization. As discussed above, this purpose was clearly reflected in Section 1 of the Act.34 Further, while union-security agreements were prohibited under the Railway Labor Act until, almost as an afterthought, that statute was amended to permit them in 1951,35 the National Labor Relations Act from the outset explicitly permitted union-security agreements.36 Thus, union security was an integral part of the National Labor Re- lations Act’s statutory scheme which itself was de- signed to promote organization. Moreover, while the Taft-Hartley amendments of 1947 restricted union- security agreements to eliminate “the most serious abuses of compulsory unionism,”37 the union shop was preserved. Indeed, the Taft-Hartley Congress’ rejection of a proposal to prohibit industry-wide bargaining showed that the National Labor Relations Act’s objec- tive of fostering organizing across employer lines re- mained intact. In sum, BRAC President Harrison’s testimony on which Ellis relied that introduction of the union shop under the Railway Labor Act would not affect his un- ion’s bargaining power was entirely logical given the high level of organization and the mature collective- bargaining system in place in the railroad industry in 1951. That testimony is, however, entirely inapposite to the National Labor Relations Act, of which union security was from the outset an organic part. Further, in Ellis, the court of appeals had found or- ganizing expenses to be chargeable. The Supreme Court described the lower court’s rationale as simply that “organizing efforts are aimed toward a stronger union, which in turn would be more successful at the bargaining table.”38 It is this relationship between orga- nizing and collective bargaining that the Court labeled an “attenuated connection.”39 It is also this relationship 32 See Machinists v. Street, 367 U.S. at 762. 33 Id. at 761–762. 34 Indeed, the initial subject addressed by Sec. 1 is the “denial by some employers of the right of employees to organize.” 35 See Machinists v. Street, 367 U.S. at 750–764. 36 See NLRB v. General Motors Corp., 373 U.S. 734, 738–739 (1963). 37 Id. at 740. 38 466 U.S. at 451; see Ellis v. Railway Clerks, 685 F.2d 1065, 1074 (9th Cir. 1982). 39 466 U.S. at 451. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 738 to which the Court was referring when, later in its analysis, it stated that organizing workers outside of a bargaining unit could afford “only the most attenuated benefits”40 to collective bargaining on behalf of that unit and, similarly, that organizing “only in the most distant way works to benefit those already paying dues.”41 In contrast to the court of appeals in Ellis, we are not finding organizing expenses chargeable in the present case merely on a general notion that organizing makes a union stronger and a stronger union is a more suc- cessful bargainer. Rather, our finding is based on a more specific proposition—that there is a direct, posi- tive relationship between the wage levels of union- represented employees and the level of organization of employees of employers in the same competitive mar- ket—and on academic research, empirical data, and specific evidence demonstrating that that proposition is accurate.42 In Ellis, unlike here, no empirical evidence was presented demonstrating either the relationship between the represented employees’ wages and the level of organization of other employees or the link found by the court of appeals that organizing makes a union stronger and a stronger union is a more success- ful bargainer. Indeed, the district court in Ellis had decided the merits of the case, ruling against the union, on a motion for summary judgment.43 Although the union submitted to the court an affidavit by former Secretary of Labor Willard Wirtz, it spoke only broadly concerning the general need for unions to or- ganize the competitors of organized employers. Unlike the record here, the affidavit appeared neither to focus on the industry at issue nor to present any specific em- pirical evidence.44 Moreover, in Ellis, no Railway La- bor Act provision was cited indicating that furthering organizing was one of the underlying purposes of that statute, as no such provision exists. The applicable statute in the present case, however, the National Labor Relations Act, as discussed above, emphasizes the fur- 40 Id. at 452. 41 Id. at 453. 42 Our dissenting colleague argues that the efforts to organize a competitor unit may not be successful, and even if successful, that would not necessarily lead to better conditions in the unionized unit. Our colleague misses our point. The issue is not whether the union will be successful. The issue is whether its organizational efforts are germane to the interests of the unionized unit. We believe that they are germane, even though we (and the union) realize that efforts are not always successful. Some collective-bargaining agreements nego- tiated by unions are less than optimum but the expense of doing so is still chargeable. 43 See Ellis v. Railway Clerks, 91 LRRM 2339 (S.D. Cal. 1976). A trial subsequently was held regarding damages. See 108 LRRM 2648 (S.D. Cal. 1980). 44 See excerpt of Wirtz affidavit quoted in Brief for Respondents (Brotherhood of Railway, Airline and Steamship Clerks) at 39 fn. 24, Ellis v. Railway Clerks, 466 U.S. 435 (1984), reprinted in BNA’s Law Reprints, Labor Law Series, Vol. 17, No. 9, 1983/84 Term, Ellis v. Railway Clerks at 205. thering of organization as one of its statutory purposes. In sum, for the foregoing reasons, we find that Ellis’ conclusion that organizing expenses were not charge- able to objecting employees under the Railway Labor Act was based on grounds wholly unrelated to the Na- tional Labor Relations Act. We find, accordingly, that applying that holding to cases under the National La- bor Relations Act is not warranted. B. Scope of the Dues Reimbursement Remedy Local 1036 represents employees of certain Califor- nia supermarkets and has been a party to a series of collective-bargaining agreements with Food Employers Council, Inc., a multiemployer bargaining association representing retail food market employers. The judge found, and we agree, that Local 1036 violated Section 8(b)(1)(A) of the Act by, among other things, notifying newly hired employees in its “welcoming” letter that they were required to become full members of Local 1036 as a condition of employment45 and by failing to notify such employees, hired into the multiemployer unit from September 21, 1988, until after July 11, 1990, of their General Motors46 right to remain non- members of the union and of nonmembers’ Beck47 rights, including the right to object to paying for union activities not germane to the union’s duties as bargain- ing agent and to obtain a reduction in fees for such activities.48 In his remedy, the judge ordered that only employees who had filed objections were entitled to reimbursement for dues or fees that were allocated to activities other than collective bargaining, contract administration, or grievance adjustment.49 The General Counsel and Charging Parties Mulder, Buck, Gibbons, and Hilton except to the judge’s failure 45 Local 1036 excepts to the judge’s finding that this welcoming letter was sent to all employees hired in the multiemployer unit from September 21, 1988, until after July 11, 1990. We find it appropriate to afford Local 1036 the opportunity which it seeks to demonstrate in compliance proceedings the point at which it ceased sending to newly hired employees a letter stating that they were required to become full members of Local 1036 as a condition of employment. 46 NLRB v. General Motors Corp., 373 U.S. 734 (1963). 47 See fn. 2, above. 48 Other Beck rights of which Local 1036 failed to inform the em- ployees were the right to be given sufficient information to enable employees to intelligently decide whether to object to paying for nonrepresentational activities and the right to be apprised of any internal union procedure for filing objections. 49 Local 1036 excepts to the judge’s failure to dismiss employee Nosek’s unfair labor practice charge as untimely. The allegation in Nosek’s charge that Local 1036 sought to have him discharged or laid off for reasons other than his failure to pay financial core dues is clearly timely, as it concerns matters that occurred less than a month before the charge was filed. We find it unnecessary to pass on the timeliness of the other allegations contained in the charge, as Charg- ing Party Hilton’s unfair labor practice charge against Local 1036, the timeliness of which is not in dispute, preceded Nosek’s charge and presented allegations of the same character, and the remedies ordered for the violations found based on Hilton’s charge encompass Nosek and are the same as those which would be ordered to remedy Nosek’s allegations. FOOD & COMMERCIAL WORKERS LOCALS 951, 7, & 1036 (MEIJER, INC.) 739 to provide a reimbursement remedy for all employees whom Local 1036 unlawfully failed to inform of their rights to remain nonmembers and to limit their pay- ment of dues and fees to moneys spent on activities germane to Local 1036’s role as bargaining representa- tive. We find merit in these exceptions. In Rochester Mfg. Co., 323 NLRB 260 (1997), issued subsequent to the judge’s decision herein, the Board prescribed the appropriate remedy for employees who, like those here, were unlawfully not informed of their General Motors and Beck rights. To reconstruct, so far as pos- sible, the circumstances that would have existed but for the union’s unlawful conduct, the Board ordered the union to give such employees notice of their rights under General Motors and Beck and to process the ob- jections of employees who, with reasonable prompt- ness after receiving their notices, elected nonmember status and made Beck objections with respect to one or more accounting periods covered by the complaint. The Board further ordered the union to reimburse each such employee for the dues and fees expended for non- representational activities that occurred during the ac- counting periods as to which the employee had ob- jected. In accord with Rochester Mfg. and subsequent cases,50 we shall modify the Order herein to conform with the remedy prescribed there. Specifically, we shall order Local 1036 to notify all bargaining unit employees of their rights under Beck and General Mo- tors. The Beck notice shall contain sufficient informa- tion for each accounting period covered by the com- plaint to enable those employees to decide intelligently whether to object. See, e.g., California Saw, supra, 320 NLRB at 233. We shall order Local 1036 to notify in writing those employees whom they initially sought to obligate to pay dues or fees under the union-security clause on or after September 3, 1988, of their right to elect non- member status and to make Beck objections with re- spect to one or more of the accounting periods covered by the complaint. With respect to any such employees who, with reasonable promptness after receiving their notices, elect nonmember status and file Beck objec- tions with respect to any of those periods, we shall or- der that Local 1036, in the compliance stage of the proceeding, process their objections, nunc pro tunc, as they would otherwise have done, in accordance with the principles of California Saw. Local 1036 shall then be required to reimburse these objecting nonmember employees for the reduction in their dues and fees, if any, for nonrepresentational activities that occurred 50 See Paperworkers Local 987 (Sun Chemical Corp.), 327 NLRB 1011 (1999); Painters (Meiswinkel/RFJ, Inc.), 327 NLRB 1020 (1999). during the accounting period or periods covered by the complaint in which they have objected.51 C. Other Remedial Issues The judge ordered Locals 951 and 1036 to post at their union hall offices copies of notices to employees and members. He further ordered them to sign and return copies of the notices to the Regional Director for posting by the employers of the employees in the bar- gaining units at issue, if the employers are willing to do so. We are cognizant that many affected employees may never have occasion to visit the union hall offices and that some or all of the employers may not be will- ing to post the notices. We are also aware that unions, through practice or contractual right, often have access to bulletin boards in employers’ facilities on which they post information that they wish to convey to the employees they represent. Therefore, to further the goal that all affected employees be made aware of the contents of the Board notice relevant to them, we shall additionally order Locals 951 and 1036 to post the no- tices at all facilities of the employers in the bargaining units at issue herein at which the unions, by practice or contractual right, have access to bulletin boards for posting information. In addition to posting the notices, the judge also or- dered Local 1036 to mail copies of the notices to em- ployees employed, or who received copies of the “wel- coming” letter, on or after September 21, 1988. In view of the additional posting requirement that we have imposed, we shall modify the judge’s order so that Local 1036 need not mail notices to employees who, at the time that Local 1036 properly posts the required notice on all bulletin boards at employers’ facilities to which it has access for posting information, work in the bargaining unit at facilities where Local 1036 posts such notices. Finally, we reject the contention of Charging Parties Mulder, Buck, Gibbons, and Hilton that the judge erred with respect to the remedies he gave for Local 951’s unlawful conduct in filing and prosecuting a Federal court lawsuit seeking an order enforcing arbitration awards against Mulder, Buck, and Gibbons for their 51 We shall confine the reimbursement remedy to employees who were initially subjected to union security on or after September 3, 1988, the beginning of the 6-month period preceding the filing and service of the charge. On the other hand, we shall order Local 1036 to give notices to all bargaining unit employees irrespective of when they were initially subjected to the union-security obligation. This remedial action is designed to ensure that all unit employees will have knowledge of their rights, for future exercise if they wish. The class to which notice is required is broader than the class for which make-whole relief is provided, consistent with the distinction made in Board practice between the obligation of a labor law violator to make whole victims of proven unfair labor practices and the violator’s obligation to notify employees of the rights that were violated. See Assn. for Retarded Citizens (Opportunities Unlimited), 327 NLRB 463, 466, at 4 fn. 14 (1999). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 740 unpaid dues.52 In particular, they allege that he erred in failing to award them “reasonable expenses and le- gal fees” in defending against the lawsuit. We note that it is not the individual Charging Parties who seek reimbursement for such expenses, since it is undis- puted that they incurred none. Rather it is the Charging Parties’ attorney, employed by the National Right to Work Legal Defense and Education Foundation, who seeks reimbursement for expenses and legal services, which were provided under a “no fee” arrangement with the Charging Parties. The Foundation contends that “[j]ust as in the context of litigation under 42 U.S.C. 1988, the identity of the attorney or the fact that the litigant did not personally incur legal expenses— because those expenses were paid by a charitable or- ganization—cannot be determinative” of its entitlement to an award of attorneys’ fees. We disagree. The National Labor Relations Act, which is essentially remedial, authorizes the Board to provide relief for actual losses of parties to our pro- ceedings or those found to be victims of unfair labor practices. It is not aimed at compensating attorneys. By contrast, the attorney fee provision in 42 U.S.C. 1988, specifically authorizes Federal courts to award attorney’s fees to prevailing parties in certain civil rights actions brought in Federal court. Although 42 U.S.C. 1988 has been construed, consistent with con- gressional intent to encourage the availability of com- petent counsel for plaintiffs in private civil rights suits, to allow entities like the Foundation to recover attorney fees in such suits regardless whether the plaintiffs themselves incurred those fees (see Blanchard v. Bergeron, 489 U.S. 87 (1989)), it does not apply to proceedings under the NLRA. Accordingly, the judge did not err in failing to provide for such recovery. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and set forth in full below and orders that A. Respondent United Food and Commercial Work- ers Local 951, its officers, agents, and representatives, shall 1. Cease and desist from (a) Charging, collecting, and retaining full member- ship dues from employees who elect not to become union members and who object to paying dues or fees for activities other than collective bargaining, contract administration and grievance adjustment. 52 These Charging Parties also except to the judge’s failure to find the lawsuit unlawful on an additional “per se” theory. Since there were no exceptions to the judge’s finding of a violation on the basis of the lawsuit, and since it would make no difference to the remedy whether we adopted the Charging Parties proposed “per se” theory, we find it unnecessary to pass on this exception. (b) Failing to disclose to objecting nonmembers the full amounts of expenditures for all activities which it conducts. (c) Charging and continuing to collect from object- ing nonmembers, as dues and fees paid pursuant to contractual union-security clauses, amounts which are remitted to United Food and Commercial Workers In- ternational Union, AFL–CIO, CLC, without disclosing to those objecting nonmembers how United Food and Commercial Workers International Union, AFL–CIO, CLC, allocates its expenditures between representation and nonrepresentation activities. (d) Collecting and retaining previously collected dues and fees from objecting nonmembers which are attributable to nonchargeable lobbying expenses. (e) Requiring objecting nonmembers to exhaust remedies provided by its Service Rebate Procedure “prior to seeking judicial review of any issue capable of resolution under” that Procedure. (f) Filing and maintaining in United States District Court applications to confirm arbitration awards which are based upon actions which constitute a breach of Local 951’s duty of fair representation owed objecting nonmembers. (g) In any like or related manner restraining or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Refund with interest to Philip G. Mulder, Charles Buck, Leon Gibbons, and all other objecting nonmem- bers who objected on or after May 9, 1988, to the ex- tent not already rebated, those portions of dues and fees allocable to lobbying and other nonrepresenta- tional activities of Local 951 and, also, to the extent that they have been remitted to United Food and Commercial Workers International Union, AFL–CIO, CLC, and are not shown to have been allocable to ex- penses of that labor organization for representation activities. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all dues payment records, escrow records, and all other records necessary to analyze the amounts of refunds due under the terms of this Order. (c) Reimburse with interest any personal expenses incurred by Philip G. Mulder, Charles Buck, and Leon Gibbons for defending against the Application for Or- der Confirming an Arbitration Award filed against them in United States District Court for the Western District of Michigan on July 24, 1991. (d) Remove from the Service Rebate Procedure the portion stating that “Any objecting nonmember must exhaust the remedies provided by this procedure prior to seeking judicial review of any issue capable of reso- lution under this procedure,” and distribute to Mulder, FOOD & COMMERCIAL WORKERS LOCALS 951, 7, & 1036 (MEIJER, INC.) 741 Buck, Gibbons and all other objecting nonmembers copies of the Service Rebate Procedure with that por- tion deleted. (e) Within 14 days after service by the Region, post at its union hall offices and at all facilities of Meijer, Inc., at which it has access to bulletin boards for post- ing information, copies of the attached notice marked “Appendix A” and copies of the Service Rebate Proce- dure with the portion quoted above in Section 2 (d) deleted.53 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by Respondent Local 951’s authorized representative, shall be posted by Respondent Local 951 immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees and members are customarily posted. Reasonable steps shall be taken to ensure that the no- tices are not altered, defaced, or covered by any other material. (f) Sign and return to the Regional Director suffi- cient copies of the notice and the Service Rebate Pro- cedure, with the portion quoted above in Section 2(d) deleted, for posting by Meijer, Inc., if willing, at all locations where notices to Meijer, Inc.’s employees are customarily posted. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to steps that Respondent Local 951 has taken to comply. B. Respondent United Food and Commercial Work- ers Local 1036, its officers, agents, and representatives, shall 1. Cease and desist from (a) Failing and refusing to inform newly hired em- ployees, when notifying them of their obligations un- der union-security clauses in collective-bargaining agreements to which Local 1036 is a party, that those employees have the right not to submit signed mem- bership applications and not to perform any obligation of union membership other than the tender of periodic dues and initiation fees uniformly required as a condi- tion of acquiring or retaining membership in Local 1036. (b) Failing to notify unit employees, when they first seek to obligate them to pay fees and dues under a un- ion-security clause, of their right under NLRB v. Gen- eral Motors Corp., 373 U.S. 734 (1963), to be and re- main nonmembers and of the rights of nonmembers under Communications Workers v. Beck, 487 U.S. 735 (1988), to object to paying for the Respondent’s non- 53 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.” representational activities and to obtain a reduction dues and fees for such activities. (c) Failing and refusing to inform employees who object to paying for union activities not germane to Local 1036’s duties as bargaining agent and who elect to obtain a reduction in dues and fees for such activi- ties, of the percentage of the reduction in dues and fees, the basis for the calculation, and that they have a right to challenge those figures. (d) Charging and continuing to collect full member- ship dues from employees who elect not to become members of Local 1036 and who object to paying dues or fees for its activities which are not germane to its duties as bargaining agent. (e) Retaining those portions of dues and fees paid by Glenn T. Hilton, John B. Nosek, and any other object- ing nonmembers which are allocable to activities which are not germane to Local 1036’s duties as bar- gaining agent and which were charged and collected after their objections to doing so had been received by Local 1036. (f) Threatening to have discharged, or otherwise to interfere with the employment of, Glenn T. Hilton, John B. Nosek, or any other employee who has ob- jected to becoming a union member and has elected not to pay dues or fees for activities not germane to Local 1036’s duties as bargaining agent, if he or they do not continue submitting full membership dues following receipt of such objections. (g) In any like or related manner restraining or co- ercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Notify all bargaining unit employees in writing of their rights under General Motors to be and remain nonmembers and of the rights of nonmembers under Beck to object to paying for nonrepresentational activi- ties of the Union and to obtain a reduction in dues and fees for such activities. In addition, the notice must include sufficient information to enable the employees to intelligently decide whether to object, as well as a description of any internal union procedures for filing objections. (b) For each accounting period since September 3, 1988, provide Glenn T. Hilton and John B. Nosek with information setting forth Respondent Local 1036’s major categories of expenditures for the previous ac- counting year and distinguishing between representa- tional and nonrepresentational functions. (c) Notify in writing those employees whom Re- spondent Local 1036 initially sought to obligate to pay dues or fees under the union-security clause on or after September 3, 1988, of their right to elect nonmember status and to make Beck objections with respect to one DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 742 or more of the accounting periods covered by the com- plaint. (d) With respect to any employees who, with reason- able promptness after receiving the notices prescribed in paragraph 2(c), elect nonmember status and file Beck objections, process their objections in the manner set forth in section B of this Decision. (e) Reimburse, with interest, Hilton and Nosek and any other nonmember bargaining unit employees who file Beck objections with Respondent Local 1036 for any dues and fees exacted from them for nonrepresen- tational activities, in the manner set forth in section B of this Decision. (f) Preserve and, on request, make available to the Board or its agents for examination and copying, all records of employees to whom a “welcoming” letter has been sent and all records of objections to paying full membership dues which have been received since September 21, 1988, and all dues payment records and all other records necessary to analyze the amounts of refunds due under the terms of this Order. (g) Within 14 days after service by the Region, post at its union hall offices and at all facilities of Ralphs Grocery Company, Lucky Food Stores, and all other members of Food Employers Council, Inc., who have been parties to collective-bargaining agreements be- tween Food Employers Council, Inc., and Local 1036 since September 21, 1988, at which it has access to bulletin boards for posting information, copies of the attached notice marked “Appendix B.”54 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by Respondent Local 1036’s authorized representative, shall be posted by Respondent Local 1036 immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees and members are customarily posted. Reasonable steps shall be taken to ensure that the notices are not altered, defaced, or covered by any other material. (h) Sign and mail copies of the notice, at its own ex- pense, to employees employed, or who received copies of the “welcoming” letter, on or after September 21, 1988, to the most recent addresses shown by Local 1036’s records or to addresses supplied by the General Counsel’s office, except that copies of the notice need not be mailed to employees who, at the time that Local 1036, as provided above, properly posts the required notice on all bulletin boards at employers’ facilities to which it has access for posting information, work in the bargaining unit at facilities where Local 1036 posts such notices. (i) Sign and return to the Regional Director suffi- cient copies of the notice for posting by Ralphs Gro- cery Company, Lucky Food Stores, and all other mem- 54 See fn. 53, above bers of Food Employers Council, Inc., who have been parties to collective-bargaining agreements between Food Employers Council, Inc., and Local 1036 since September 21, 1988, if those employers are willing to do so, at all locations where notices to their employees are customarily posted. (j) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to steps that Respondent Local 951 has taken to comply. IT IS FURTHER ORDERED that the second consolidated amended complaint is dismissed insofar as it alleges violations of the Act by United Food and Commercial Workers Local 7, United Food and Commercial Work- ers Local 951, and by United Food and Commercial Workers Local 1036 not found here. MEMBER BRAME, concurring in part and dissenting in part. My colleagues’ decision, while addressing primarily the issue of the chargeability of organizing expenses under Communications Workers v. Beck,1 disposes of a number of complaint allegations concerning three dif- ferent United Food and Commercial Workers (UFCW) Locals. UFCW Local 1036 represents employees of certain California supermarkets and has been a party to a se- ries of collective-bargaining agreements with Food Employers Council, Inc., a multiemployer bargaining association representing retail grocers. UFCW Local 951 represents Michigan employees of Meijer, Inc., a retailer of food and nonfood products, with which it has several collective-bargaining agreements. UFCW Local 7 represents employees of City Markets, a retail grocer, in four Colorado towns and also represents the Denver employees of Champion Boxed Beef. Local 7 has collective-bargaining agreements with City Mar- kets and Champion Boxed Beef. At various times, certain employees of each of these employers notified their respective UFCW locals that they were resigning their union memberships and ob- jected to paying for nonrepresentational activities. The complaint allegations in this case concern largely whether the three locals violated the Beck rights2 of the employees in these bargaining units. For the reasons set forth below, I dissent from my colleagues’ finding 1 487 U.S. 735 (1988). 2 In Beck, the Supreme Court held that, although Sec. 8(a)(3) of the Act allows unions and employers to negotiate agreements provid- ing that all unit employees shall pay dues and fees regardless of for- mal membership, a union lacks authority under Sec. 8(a)(3) to collect from objecting nonmembers fees and dues beyond those necessary for collective bargaining, contract administration, and grievance adjustment and breaches its duty of fair representation by expending such funds on activities unrelated to its role as the bargaining repre- sentative. FOOD & COMMERCIAL WORKERS LOCALS 951, 7, & 1036 (MEIJER, INC.) 743 that Locals 7 and 951 did not violate the Act by charg- ing objecting nonmembers for organizing expenses. As indicated below, I also dissent from certain other find- ings but concur with my colleagues as to other issues. 1. I join my colleagues in adopting the judge’s find- ings that Local 1036 violated Section 8(b)(1)(A) of the Act by: (1) notifying newly hired employees that they were required to become full members of Local 1036 as a condition of employment; (2) failing to notify such employees of their General Motors3 right to remain nonmembers of the union and their Beck rights, includ- ing the right to object to paying for union activities not germane to the union’s duties as bargaining agent and to obtain a reduction in fees for such activities;4 (3) failing to provide objecting nonmembers with informa- tion concerning the amounts of dues reductions, the basis for those calculations, and their right to challenge those figures;5 and (4) demanding continued payment of, and collecting, full membership dues from object- ing nonmembers Hilton and Nosek and threatening discharge if they failed to comply with Local 1036’s demand for payment of full membership dues.6 I also agree with my colleagues’ provision of a Rochester Mfg. Co.7 remedy for all employees whom Local 1036 failed to inform of their rights. This remedy affords such employees the opportunity to elect nonmember status and make Beck objections with respect to any of the accounting periods covered by the complaint and receive reimbursement of their dues and fees, if any, 3 NLRB v. General Motors Corp., 373 U.S. 734 (1963). In Gen- eral Motors, the Supreme Court described an employee’s member- ship obligation under a union-security clause permitted by the pro- viso to Sec. 8(a)(3) as “whittled down to its financial core.” Id. at 742. Thus, it is the right of employees under General Motors to sat- isfy their obligations under a union-security clause by doing no more than paying the union an amount equivalent to union initiation fees and dues. They need not become union members. 4 In adopting this violation, I do not rely on the Board’s decision in California Saw & Knife Works, 320 NLRB 224 (1995), enfd. sub nom. Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. de- nied sub nom. Strang v. NLRB, 525 U.S. 813 (1998). Rather, I rely on the Supreme Court’s decisions in Chicago Teachers Union Local. 1 v. Hudson, 475 U.S. 292 (1986), and Marquez v. Screen Actors Guild, 525 U.S. 33 (1998). See Teamsters Local 75 (Schreiber Foods), 329 NLRB No. 12, slip op. at 8, fn. 10 and accompanying text (1999) (Member Brame, concurring in part, dissenting in part). 5 In adopting this violation, I do not rely on the Board’s decision in California Saw & Knife Works, supra. Rather, I rely on the Su- preme Court’s decision in Chicago Teachers Union Local 1 v. Hud- son, supra. See Teamsters Local 75 (Schreiber Foods), supra, slip op. at 10 (Member Brame, concurring in part, dissenting in part). 6 In adopting these violations, I do not rely on the Board’s decision in California Saw & Knife Works, supra. Rather, I find that, by en- gaging in this conduct, Local 1036 directly restrained and coerced employees in their Sec. 7 right to refrain from joining or assisting labor organizations. Thus, I find it unnecessary to consider whether Local 1036’s actions violated the duty of fair representation here. Cf. Polymark Corp., 329 NLRB No. 7, slip op. at 11, fn. 30 and accom- panying text (1999) (Member Brame, concurring in part, dissenting in part). 7 323 NLRB 260 (1997). that Local 1036 expended for nonrepresentational ac- tivities during such periods. 2. The judge found that Local 951 violated Section 8(b)(1)(A) by, among other things, failing to supply objecting nonmembers Mulder, Buck, and Gibbons with any information concerning the United Food and Commercial Workers International Union’s expendi- tures of dues remitted to it by Local 951 and by requir- ing objecting nonmembers to exhaust their remedies under Local 951’s Service Rebate Procedure prior to seeking judicial review of the expenditures that Local 951 deemed chargeable. No exceptions were filed to any of the judge’s findings of violations by Local 951. Charging Parties Mulder, Buck, Gibbons, and Hilton, however, excepted to the judge’s reasoning suggesting that Local 951 would not be obligated to provide in- formation concerning the UFCW International Union’s expenditures of dues forwarded to it if Local 951 did not possess such information.8 Although my colleagues find it unnecessary to reach this issue, I specifically decline to adopt the judge’s rationale. Local 951 clearly was obligated to provide information concern- ing how the dues it forwarded to the International was spent,9 and any failure by the International to provide such information to Local 951 would not have relieved the Local of this obligation. I also dissent from my colleagues’ dismissal of the complaint allegation that Local 951 violated Section 8(b)(1)(A) by requiring, under its Service Rebate Pro- cedure, that nonmembers first file with Local 951’s executive board any objections to Local 951’s determi- nation of the chargeable dues amount before presenting their objections to an arbitrator. The judge, as noted above, separately found that Local 951’s Service Re- bate Procedure violated Section 8(b)(1)(A) by requir- ing objecting nonmembers to exhaust their remedies under this procedure prior to seeking judicial review. The requirement that nonmembers file objections with Local 951’s executive board was an integral part of the union’s unlawful mandatory internal appeals proce- dure. Therefore, contrary to my colleagues, I would reverse the judge and find the requirement that non- members file objections with the union’s executive board likewise unlawful. See Teamsters Local 75 (Schreiber Foods), 329 NLRB No. 12, slip op. at 13– 8 The judge subsequently observed that Local 951 did not contend that it had not received information about how the International spent its receipts. The judge ultimately found that the burden was on Local 951 to show that dues deemed chargeable had been spent for repre- sentational activities and that any uncertainty had to be resolved against Local 951. 9 See Teamsters Local 75 (Schreiber Foods), supra, slip op. at 10, fn. 15 and accompanying text (Member Brame, concurring in part, dissenting in part). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 744 14 (Member Brame, concurring in part, dissenting in part).10 3. Contrary to my colleagues, I would find that Re- spondent Locals 7 and 951 violated Section 8(b)(1)(A) of the Act by charging objecting nonmembers for or- ganizing expenses. As I have previously indicated,11 the issue of organizing expenses is, without question, controlled by the Supreme Court’s decision in Ellis v. Railway Clerks.12 In that case, the Court found that, under the Railway Labor Act, a union’s expenditures for organizing were not chargeable to objecting em- ployees. The Court set forth three reasons for its hold- ing. First, the Court found no basis in the legislative history for the notion that, in authorizing the union shop, Congress aimed to enhance union organizational efforts.13 Second, the Court recognized that, where a union shop provision is in place, the bargaining unit employees are already organized, so organizing ex- penses are necessarily spent on employees outside the unit, and the Court found that using dues to recruit members outside the unit “can afford only the most attenuated benefits to collective bargaining on behalf of the dues payer.”14 Third, the Court reasoned that, as organizing “only in the most distant way works to the benefit of those already paying dues,”15 organizing was not the sort of benefit that Congress had in mind in authorizing union security to prevent “free riders” from enjoying benefits obtained by the union for which they had not paid. These reasons apply with equal force to union secu- rity under the National Labor Relations Act. Regarding legislative history, there is nothing to indicate that Congress’ purpose in permitting union-security agree- ments under either the National Labor Relations Act or the Railway Labor Act was to promote organizing. As the Court explained in Beck,16 the 1947 Taft-Hartley amendments that produced Section 8(a)(3) of the Na- tional Labor Relations Act were tailored to abolish the closed shop while still permitting parties to enter into union-security provisions to prevent “free riders” from 10 Additionally, contrary to my colleagues, I would set aside the judge’s approval of a settlement agreement that disposed of the com- plaint allegations against United Food and Commercial Workers Local 7 other than the allegation concerning organizing expenses, and remand the applicable complaint allegations for hearing. In their exceptions, Charging Parties McReynolds and Kipp contend that the settlement agreement inadequately remedied allegations concerning chargeability of lobbying expenses, overhead expenses, and per cap- ita tax. Having reviewed the settlement agreement, I find that McReynolds and Kipp’s contentions have merit. 11 See Teamsters Local 75 (Schreiber Foods), supra, slip op. at 13, fn. 38 and accompanying text (Member Brame, concurring in part, dissenting in part). 12 466 U.S. 435 (1984). 13 Id. at 451–452. 14 Id. at 452. 15 Id. at 453. 16 487 U.S. at 746–754. receiving the benefits of union representation without paying for them. Four years later, partially in response to demands for parity from unions subject to the Rail- way Labor Act, Congress extended the same right to parties under that statute by the addition of Section 2, Eleventh to the Railway Labor Act. Thus, the purpose of allowing union-security agreements under each stat- ute was the same—to prevent “free riders,” not to pro- mote union organizing. The Court’s other reasons in Ellis for finding orga- nizing expenses nonchargeable are similarly applicable to the National Labor Relations Act. It is equally true under the National Labor Relations Act as under the Railway Labor Act that where a union shop provision is in place, the unit employees are already organized, so organizing expenses are necessarily spent on em- ployees outside the unit. Thus, the Court’s finding in Ellis that using dues to recruit members outside the unit “can afford only the most attenuated benefits to collective bargaining on behalf of the dues payer,”17 also applies under National Labor Relations Act. Also applicable is the Court’s finding that organizing was not the sort of benefit that Congress had in mind when it authorized union security to assure that employees would pay for the union-provided benefits that they received. Thus, Ellis’ reasoning in finding organizing expenses nonchargeable under the Railway Labor Act applies similarly to the National Labor Relations Act, and its conclusion that organizing expenses are non- chargeable must also govern under the National Labor Relations Act. Any lingering doubt that Ellis’ holding organizing expenses nonchargeable applies to the National Labor Relations Act was eliminated by the Court’s subse- quent decision in Beck.18 In that case, the Court found the provisions of the Railway Labor Act and those of the National Labor Relations Act that authorized un- ion-security agreements, Section 2, Eleventh and Sec- tion 8(a)(3) respectively, to be “in all material respects identical.”19 The Court explained that “in amending the RLA in 1951, Congress expressly modeled Section 2, Eleventh on Section 8(a)(3), which it had added to the NLRA only four years earlier.”20 Consequently, the Court concluded: “In these circumstances, we think it clear that Congress intended the same language to have the same meaning in both statutes.”21 Thus, the Court in Ellis found that under Section 2, Eleventh of the Railway Labor Act organizing ex- penses are not chargeable to objectors, and the Court in Beck found that Section 8(a)(3) of the National Labor Relations Act has the same meaning as Section 2, 17 466 U.S. at 452. 18 Supra. 19 487 U.S. at 745. 20 Id. at 746. 21 Id. at 746–747. FOOD & COMMERCIAL WORKERS LOCALS 951, 7, & 1036 (MEIJER, INC.) 745 Eleventh of the Railway Labor Act. Taken together, these holdings compel the conclusion that under Sec- tion 8(a)(3) of the National Labor Relations Act orga- nizing expenses are not chargeable, as such expenses are not chargeable under Section 2, Eleventh of the Railway Labor Act, whose meaning the Court has found to be the same as that of Section 8(a)(3). Conse- quently, in my view, Supreme Court precedent man- dates the conclusion that organizing expenses, as a matter of law, are not chargeable to objecting non- members under the National Labor Relations Act. The majority contends that a different interpretation is warranted because of the different legislative history of union-security provisions under the National Labor Relations Act than under the Railway Labor Act. They argue that, unlike the Railway Labor Act, union- security provisions were permitted under the National Labor Relations Act from its inception and that facili- tating organizing was more directly a purpose in enact- ing the National Labor Relations Act than it was in enacting the Railway Labor Act. Assuming that these contentions are correct, they are irrelevant. The right of employees to organize is protected under both stat- utes.22 More importantly, as discussed above, there is nothing to indicate that Congress’ purpose in allowing union-security agreements under either statute was to promote organizing. It is simply too late in the day to contend that a different interpretation is warranted based on Section 8(a)(3)’s legislative history. That argument is foreclosed by Beck’s holding that Section 8(a)(3) of the National Labor Relations Act has the same meaning as Section 2, Eleventh of the Railway Labor Act.23 In any event, even assuming arguendo that Ellis and Beck do not establish that organizing expenses are non- chargeable as a matter of law, the Respondents’ evidence falls well short of demonstrating as a factual matter that organizing efforts afford anything more than “only the 22 Compare Sec. 2, Fourth of the Railway Labor Act (“Employees shall have the right to organize and bargain collectively through representatives of their own choosing. No carrier, its officers, or agents shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees.”) with Sec. 7 of the National Labor Relations Act (“Employees shall have the right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing.”). 23 It is true, as the majority notes, that the Seventh Circuit has stated that “Beck left unresolved the definition of the agency func- tion” and that “[a]ll the details necessary to make the rule of Beck operational were left to the Board.” Machinists v. NLRB, 133 F.3d 1012, 1015 (7th Cir. 1998), cert. denied sub nom. Strang v. NLRB, 525 U.S. 813 (1998). As the issue of the chargeability of organizing expenses, however, has already been decided by the Supreme Court in Ellis, this issue hardly falls within the category of unresolved matters or “details” contemplated by the Seventh Circuit as left for determination by the Board. most attenuated benefits”24 to collective bargaining on behalf of employees who are already organized. That there may be some statistical correlation between the percentage of employees who are organized and wage levels of repre- sented employees fails to establish a cause and effect rela- tionship, and the Respondents’ selectively chosen anecdo- tal evidence adds nothing. Moreover, the majority assumes without supporting evidence myriad necessary steps in the asserted rela- tionship between expenditures for organizing and the wages paid to already-represented employees. For ex- ample, they ignore the fact that not all organizing ac- tivities lead to voluntary recognition or elections and that, even when elections are held, unions win only about half.25 Additionally, as reported Board cases show, not all election wins result in contracts, and not all contracts provide for increased wages.26 Further, not all increased wages at a newly organized employer re- sult in higher wages at its already-unionized competitor. The effect on the competitor depends, among many other things, on the level of unemployment in the mar- ket, the size of the organized employers relative to the total labor market serving the organized employers, the elasticity of demand for the end products, availability and cost of labor saving devices, and the elasticities of the other productive factors.27 Each step in this se- quence requires detailed factual analysis. (See U.S. De- partment of Justice and Federal Trade Commission, Horizontal Merger Guidelines, §§1.1 [“Product Market Definition”] and 1.2 [“Geographic Market Definition”] [1992], for examples of the analyses necessary to de- termine such foundational matters as product and geo- graphic markets.) In addition, the effect may also de- pend on the terms of existing collective-bargaining agreements, for, under any assumptions, employees working under a three year, no-reopener contract could see no benefit of a competitor’s being organized until the contract was renewed.28 Given the many steps of causation necessary for organizing efforts to increase the wages of already organized employees, it is no wonder that the Supreme Court in Ellis found that orga- nizing “only in the most distant way works to the bene- fit of those already paying dues”29 and “can afford only 24 Ellis, 466 U.S. at 452. 25 See Sixty-Third Annual Report of the National Labor Relations Board, 1998, 12 (unions won 48.9 percent of elections conducted by the Board in fiscal year 1998). 26 See, e.g., MGM Grand Hotel, 329 NLRB No. 50 (1999). 27 See generally Clark Kerr, “The Impacts of Unions on the Level of Wages,” in C. A. Meyers (Ed.), Wages, Prices, Profits, and Pro- ductivity (1959) and George Stigler, The Theory of Price c. 16 (3rd ed. 1966). 28 Indeed, the record is devoid of facts and analysis to establish that organizing expenditures charged to the Charging Parties actually produced any benefits for the employees who were already repre- sented. 29 466 U.S. at 453. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 746 the most attenuated benefits to collective bargaining on behalf of the dues payer.”30 In sum, I find that, as a matter of law, organizing ex- penses are nonchargeable to objecting nonmembers and, in any event, the Respondents have failed to dem- onstrate as a factual matter that expenditures on orga- nizing benefit employees who are already represented. Accordingly, I dissent from my colleagues’ finding that Locals 7 and 951 did not violate Section 8(b)(1)(A) of the Act by charging objecting nonmem- bers for organizing expenses. APPENDIX A NOTICE TO EMPLOYEES AND 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 violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT charge, collect, and retain full mem- bership dues from employees who elect not to become union members and who object to paying dues or fees for our activities other than collective bargaining, con- tract administration and grievance adjustment. WE WILL NOT fail to disclose to objecting nonmem- bers the full amounts of expenditures for all our activi- ties. WE WILL NOT charge and continuing collecting from objecting nonmembers, as dues and fees paid pursuant to contractual union-security clauses, amounts which are remitted to United Food and Commercial Workers International Union, AFL–CIO, CLC, unless we dis- close to those objecting nonmembers how United Food and Commercial Workers International Union, AFL– CIO, CLC, allocates its expenditures between representation and nonrepresentation activities. WE WILL NOT collect or retain previously collected dues and fees from objecting nonmembers which are attributable to nonchargeable lobbying expenses. WE WILL NOT require objecting nonmembers to ex- haust remedies provided by our Service Rebate Proce- dure “prior to seeking judicial review of any issue ca- pable of resolution under” that Service Rebate Proce- dure. WE WILL NOT file and maintain in United States Dis- trict Court applications to confirm arbitration awards which are based upon actions that constitute a breach of our duty of fair representation owed objecting non- members. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of rights guaranteed you by the National Labor Relations Act. 30 Id. at 452 WE WILL refund with interest to Philip G. Mulder, Charles Buck, Leon Gibbons, and all other objecting nonmembers whose objections were received on or after May 9, 1988, to the extent not already rebated, those portions of dues and fees allocable to our lobby- ing and other nonrepresentational activities and, also, portions of those dues and fees that have been remitted to United Food and Commercial Workers International Union, AFL–CIO, CLC, and not shown to have been allocable to its representation activities. WE WILL reimburse with interest any personal ex- penses incurred by Philip G. Mulder, Charles Buck, and Leon Gibbons for defending against our Applica- tion for Order Confirming an Arbitration Award filed against them in United States District Court for the Western District of Michigan on July 24, 1991. WE WILL remove from the Service Rebate Procedure the portion stating that “Any objecting nonmember must exhaust the remedies provided by this procedure prior to seeking judicial review of any issue capable of resolution under this procedure,” and distribute to Philip G. Mulder, Charles Buck, and Leon Gibbons and all other objecting nonmembers copies of the Ser- vice Rebate Procedure with that portion deleted. UNITED FOOD AND COMMERCIAL WORKERS LOCAL 951 APPENDIX B NOTICE TO EMPLOYEES AND 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 violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT fail to notify unit employees, when we first seek to obligate them to pay dues and fees under a union-security clause, of their right under NLRB v. General Motors Corp., 373 U.S. 734 (1963), to be and remain nonmembers, and of the rights of nonmembers under Communications Workers v. Beck, 487 U.S. 735 (1988), to object to paying for our nonrepresentational activities and to obtain a reduction in dues and fees for such activities. WE WILL NOT fail to provide unit employees who have resigned their union memberships and filed Beck objections with information about the percentage re- duction in dues and fees charged Beck objectors, the basis for that calculation, and the right to challenge those figures. WE WILL NOT charge nonmember bargaining unit employees for nonrepresentational activities after they file Beck objections. FOOD & COMMERCIAL WORKERS LOCALS 951, 7, & 1036 (MEIJER, INC.) 747 WE WILL NOT threaten to have discharged, or other- wise to interfere with the employment of, Glenn T. Hilton, John B. Nosek, or any other nonmember who objects, or has objected, to paying for activities not germane to our bargaining agent duties, unless such employee continues to pay full membership dues. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of rights guaranteed to you by Section 7 of the National Labor Relations Act. WE WILL notify all bargaining unit employees in writing of their right under General Motors to be and remain nonmembers and of the rights of nonmembers under Beck to object to paying for our nonrepresenta- tional activities and to obtain a reduction in dues and fees for such activities. In addition, the notice will include sufficient information to enable the employees to intelligently decide whether to object, as well as a description of any internal union procedures for filing objections. WE WILL, for each accounting period since Septem- ber 3, 1988, provide Hilton and Nosek with informa- tion setting forth our major categories of expenditures for the previous accounting year and distinguishing between representational and nonrepresentational func- tions. WE WILL notify in writing those employees whom we initially sought to obligate to pay dues or fees under the union-security clause on or after September 3, 1988, of their right to elect nonmember status and to make Beck objections with respect to one or more of the accounting periods covered by the complaint. WE WILL process the Beck objections of any employ- ees whom we initially sought to obligate to pay dues or fees under the union-security clause on or after Sep- tember 3, 1988, who elect nonmember status and file objections with reasonable promptness after receiving notice of their right to so object. WE WILL reimburse, with interest, Hilton and Nosek and any other nonmember bargaining unit employees who file Beck objections with us for any dues and fees exacted from them for nonrepresentational activities, for each accounting period since September 3, 1988. UNITED FOOD AND COMMERCIAL WORKERS LOCAL 1036 Timothy L. Watson and Ruth Small, for the General Counsel. Glenn M. Taubman and Richard Clair, of Springfield, Vir- ginia, appearing for certain Charging Parties (National Right to Work Legal Defense Foundation). Ted Iorio, (Kalniz, Iorio & Feldstein Co., LPA), of Grand Rapids, Michigan, and Christine A. Reardon, of Toledo, Ohio, for Respondent. Robert E. Funk Jr., Associate General Counsel, Edward P. Wendel, Assistant General Counsel, Carol L. Clifford, Assistant General Counsel (United Food & Commercial Workers International Union), of Washington, D.C., for Respondent. Charles Orlove (Jacobs, Burns, Sugarman & Orlove), of Chicago, Illinois, for Respondent (United Food and Commercial Workers Local 7). David Rosenfeld (Van Bourg, Weinberg, Roger, & Rosenfeld), of Oakland, California, for Respondent (United Food and Commercial Workers Local 1036). SUPPLEMENTAL DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III, Administrative Law Judge. This matter was remanded by the Board for issuance of a supple- mental decision in light of its decision in California Saw & Knife Works, 320 NLRB 224 (1995). The hearing was con- ducted on various dates between January 14 and August 28, 1992. The record ultimately was closed on May 16, 1994. All parties were afforded full opportunity to appear, to intro- duce evidence, to examine and cross-examine witnesses, and to file briefs in light of the remand. Based on the entire re- cord, upon the briefs which were filed on behalf of the par- ties, and upon my observation of the demeanor of the wit- nesses, I hereby issue the following findings of fact and con- clusions of law. I. INTRODUCTION The first proviso to Section 8(a)(3) of the National Labor Relations Act (the Act), allows employers and labor organi- zations to enter into agreements which “require as a condi- tion of employment membership [in a labor organization] on or after the thirtieth day following the beginning of . . . em- ployment or the effective date of such agreement, whichever is the later.” However, that allowance cannot be read in isolation. “Full union membership . . . no longer can be a require- ment.” Pattern Makers League v. NLRB, 473 U.S. 95, 106 (1985). With respect to the first proviso to Section 8(a)(3) of the Act, “membership, insofar as it has significance to em- ployment rights, may in turn be conditioned only upon pay- ment of fees and dues. Membership as a condition of em- ployment is whittled down to its financial core.” NLRB v. General Motors Corp., 373 U.S. 734, 742 (1963). Further- more, that proviso “authorizes exaction of only those fees and dues necessary to ‘performing the duties of an exclusive representative of the employees in dealing with the employer on labor management issues.’” Communications Workers v. Beck, 487 U.S. 735, 762–763 (1988) (quoting from Ellis v. Railway Clerks, 466 U.S. 435, 448 (1984).) More specifi- cally, the proviso “does not permit a collective-bargaining representative, over the objection of dues-paying nonmember employees, to expend funds collected under a union-security agreement on activities unrelated to collective bargaining, contract administration, or grievance adjustment.” Califor- nia Saw, supra, 320 NLRB at 224. As a result of settlement agreements which disposed of a number of unfair labor practice charges and some respon- dents, remaining for consideration in this consolidated pro- ceeding are issues which extend across the spectrum of the duty of fair representation, Id. at 228–230, owed to employ- ees as a consequence of union-security provisions negotiated by three local unions chartered by and affiliated with United Food and Commercial Workers, AFL–CIO, CLC (Interna- tional), a labor organization within the meaning of Section 2(5) of the Act. Those three local unions are United Food DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 748 and Commercial Workers Local 7, which represents Colo- rado and Wyoming grocery store and meatpacking industry employees; United Food and Commercial Workers Local 951, which represents Michigan retail, grocery, and mercan- tile employees, as well as employees working at a food proc- essing plant, a nursing home, a pet food processing plant, and certain distribution centers; and, United Food and Com- mercial Workers Local 1036, which represents, at least, retail food market industry employees working in Simi Valley and Thousand Oaks, California. Each of those three local unions is a labor organization within the meaning of Section 2(5) of the Act. The second consolidated amended complaint, as further amended, alleges that Local 951 violated the Act by includ- ing lobbying as a item for which it continued to charge em- ployee-nonmembers who objected to continuing being charged, under union-security provisions, for union expendi- tures other than for collective bargaining, contract admini- stration and grievance adjustment. Moreover, both Local 7 and Local 951 are alleged to have violated the Act by con- tinuing to charge such objectors for expenditures made to organize other employees. With respect to procedures followed under contractual un- ion-security provisions at the threshold of the employment relationship, it is alleged that Local 1036 violated the Act by informing newly hired employees, covered by such provi- sions in successive collective-bargaining contracts with a multiemployer bargaining association, that they were re- quired as a condition of employment to file membership applications with, and become members of, Local 1036. It is alleged that Local 1036 further violated the Act by failing to affirmatively inform those employees of their right to refrain from becoming union members and, further, of what is re- ferred to as their Beck rights. Several allegations arise from events occurring when cer- tain employees did object to paying amounts that would fi- nance union activities other than collective bargaining, con- tract administration, and grievance adjustment. Thus, it is alleged that Local 1036 violated the Act by continuing to charge and collect full dues from employee Glenn T. Hilton after he objected and, by threatening him with discharge if he failed to continue paying full dues. Local 951 is alleged to have violated the Act by continuing to charge and collect from objectors amounts equivalent to full membership dues, though those amounts are placed in escrow and portions al- locable to nonrepresentation expenditures are returned peri- odically to objectors after the actual expenditures have been made, under what is referred to as a “charge and rebate sys- tem.” Local 951 also is alleged to have violated the Act by failing to fully disclose to objectors whether its expenditures had been made for to collective bargaining, contract admini- stration and grievance adjustment, or had been made for other purposes. Moving to the next stage of that process, it is alleged that Local 951 violated the Act by requiring objectors to file their objections with its executive board before presenting their challenges to an arbitrator. It is further alleged that Local 951 violated the Act by requiring objectors to exhaust those internal procedures before filing a charge with the Board concerning their objections. Finally, Local 951 is alleged to have violated the Act by filing an application in United States District Court to confirm an arbitration award against three employees. II. ALLEGATIONS AGAINST UNITED FOOD AND COMMERCIAL WORKERS LOCAL 1036 Local 1036 has been party to a series of collective- bargaining contracts with Food Employers Council, Inc., a multiemployer bargaining association admitting to member- ship employers in the retail food market industry, and exist- ing in part for the purposes of negotiating, executing, and administering collective-bargaining contracts on behalf of those employer-members. Two of its employer-members are Ralph’s Grocery Company (Ralph’s) and Lucky Food Stores (Lucky). Ralph’s is a Delaware corporation with an office and place of business in Simi Valley, where it engages in operation of retail supermarkets. In the course and conduct of those busi- ness operations during a concededly representative period, the 12-month period preceding execution by the appropriate parties of a Stipulation of Facts submitted on March 7, 1994, Ralph’s derived gross revenues in excess of $500,000 and, further, purchased goods and materials valued in excess of $5000 which Ralph’s received at Simi Valley directly from points outside of California. Therefore, Ralph’s is an em- ployer within the meaning of Section 2(2), (6), and (7) of the Act. Lucky also is a Delaware corporation engaged in the retail grocery business. One place that it does so is at an office and place of business in Thousand Oaks, California. In the course and conduct of business operations during the same representative period described above, Lucky derived gross revenues in excess of $500,000 and, further, purchased goods and materials valued in excess of $5000 which it received at Thousand Oaks directly from points outside of California. Therefore, Lucky is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Local 1036 and Food Employers Council, Inc. have nego- tiated a series of collective-bargaining contracts covering employees of employers—including Ralph’s in Simi Valley and Lucky in Thousand Oaks—in the retail food market in- dustry. As of the time of the hearing, the two most recent contracts had been effective by their terms from August 3, 1987, to and including July 29, 1990, and from July 30, 1990, to and including October 3, 1993. As a result, by vir- tue of Section 9(a) of the Act, Local 1036 had been the ex- clusive representative of employees in a multiemployer bar- gaining unit, including employees of Ralph’s in Simi Valley and employees of Lucky in Thousand Oaks, covered by those contracts for purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. The union-security provisions of both most recent con- tracts, article 2, subsection A, requires that, All employees shall, as a condition of employment, pay to the Union the initiation fees and/or reinstatement fees and periodic dues lawfully required by the Union. This obligation shall commence on the thirty-first (31st) day following the date of employment by the Employer who is signatory to this Agreement, or the effective date of this Agreement, or the date of signature, whichever is later. FOOD & COMMERCIAL WORKERS LOCALS 951, 7, & 1036 (MEIJER, INC.) 749 Succeeding subsections of article 2 require signatory em- ployers, such as Ralph’s and Lucky, to submit to Local 1036 the names and addresses of newly hired unit employees, pro- vide that Local 1036 will send an introductory letter to each new hire in which the above-quoted union-security provision will be recited, and specify that delinquent employees will be sent a notice of delinquency which states, “The penalty for noncompliance, i.e., discharge if the obligation has not been met.” with termination notices to be sent to those delinquent employees who have “ignored all efforts by the Union to obtain compliance,” as well as to the employers of those delinquent employees. To implement article 2, Local 1036 formulated a “welcoming” letter which stated, inter alia, that, “as a condition of employment,” the employee-addressee is required to become a member of Local 1036 on the 31st day following the date of employment and, to satisfy that obligation, must file a membership application, along with a tender of initiation fee, other mandatory fees, and dues and/or fees for the current period. The letter does not inform newly hired employees that the union security obligation can be satisfied by, as an alternative to becoming a member, tendering periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in Local 1036. Nor does the letter notify those employees that, should they desire not to become members of Local 1036, they have a right to object to paying for union activities not germane to Local 1036’s duties as bargaining agent and to obtain a reduction in fees for such activities, a right to be given sufficient information to enable them to intelligently decide whether to object, and a right to be apprised of any internal union procedures for filing objec- tions. Such letters, or similarly worded ones, were sent by Local 1036 to all employees hired into the multiemployer contract unit during the period from September 21, 1988, until after July 11, 1990. The uncertainty concerning a concluding date is occasioned by Local 1036’s assertion that it has no records showing when it had ceased sending such letters, nor had it retained records showing names of employees to whom its welcoming letter had been sent. The General Counsel argues, though not necessarily with consistency, that the welcoming letter violated the Act in two respects. Appended to his brief in response to the remand, Counsel for the General Counsel attached has exceptions and brief to the Board, filed in April 1995. In the brief in re- sponse to the remand, he “directs [my] attention to the ‘ISSUES’ section of his brief to the Board for a listing of the identified issues in this matter.” That section of the brief to the Board identifies as issues, in connection with the wel- coming letter, breach of Local 1036’s “duty of fair represen- tation in violation of Section 8(b)(1)(A) of the Act by failing to inform nonmembers of their rights under CWA v. Beck.” The second issue is stated to be: “I. Whether Respondent UFCW Local 1036 breached its duty of fair representation and caused or attempted to cause various employer-members of Food Employers’ [sic] Council, Inc. to discriminate against newly hired employees in violation of Section 8(b)(1)(A) and (2) of the Act by erroneously informing them that they were required as a condition of employment to join Local 1036.” The corresponding heading for that second issue in the “ANALYSIS AND ARGUMENT” section of both the brief to the Board and in the remand brief, however, drops any mention of the “caused or attempted to cause various em- ployer-members of the Food Employers’ Council, Inc. to discriminate against newly hired employees” language, but retains the contention that Local 1036 violated Section 8(b)(2) of the Act: “2. Local 1036 violated Section 8(b)(1)(A) and (2) of the Act by erroneously informing all newly hired employees in a multiemployer bargaining unit that they were required as a condition of employ- ment to join the Union.” Still, the argument under that heading, neither in the brief to the Board nor the remand brief, makes no argument that Section 8(b)(2) of the Act had been violated by issuing the welcoming letter to newly hired employees. Instead, for example in the remand brief, counsel for the General Counsel argues only that the “information, which was disseminated via a so-called ‘welcoming letter,’ coerced employees in the exercise of rights guaranteed by Section 7 of the Act in violation of Section 8(b)(1)(A) of the Act,” and, further, “that Local 1036’s unambiguous requirement that employees become members by activating their membership through the submission of an application for membership as well as the payment of initiation fees along with other man- datory fees violated Section 8(b)(1)(A) of the Act.” As to Section 8(b)(1)(A) of the Act, it is long settled that “notification to new employees that they were required to become full members of [a labor organization] as a condition of their employment constitutes a violation of Section 8(b)(1)(A).” Service Employees, Local 680 (Leland Stanford Junior University), 232 NLRB 326, 326 (1977). As Judge Shapiro explained in his underlying Decision, notification to newly hired employees that they must, inter alia, file a mem- bership application as a condition of employment “consti- tuted an implied threat of reprisal calculated to interfere with the employees’ statutory right to refrain from any and all union activities,” (footnote omitted) and, consequently, “tended to restrain and coerce employees in their statutory right to refrain from abiding by union membership condi- tions.” (supra at 329.) The same situation is presented with respect to Local 1036’s welcoming letter. It informed newly hired employees of the existence of the contractual union-security provision and that the employees must file membership applications, along with tendering money to satisfy the financial obliga- tions, to become members. It warned that such actions were required “as a condition of employment[.]” There is no men- tion in the letter of tendering only uniformly required dues and fees, without having to become a member of Local 1036 and without having to observe other union-imposed obliga- tions, as an alternative to full membership. Therefore, by only notifying newly hired employees in the multiemployer bargaining unit “that they were required to become full members. . .as a condition of their employment,” Id., Local 1036 violated Section 8(b)(1)(A), but not Section 8(b)(2), of the Act. In California Saw, supra, the Board concluded that labor organizations must, inter alia, take “reasonable steps to in- sure that all employees whom the union seeks to obligate to pay dues are given notice of their [Beck] rights.” (supra at 233.) More specifically, whenever a labor organization seeks to obligate an employee to pay dues, that labor organi- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 750 zation must take reasonable steps not only to notify that em- ployee of the right to remain a nonmember, but also that nonmembers have the right (1) to object to paying for union activities not germane to the union’s duties as bargaining agent and to obtain a reduction in fees for such activities; (2) to be given sufficient information to enable the employee to intelligently decide whether to object; and (3) to be apprised of any internal union pro- cedures for filing objections. [supra at 233.] It is undisputed that Local 1036 never provided such notice to any of the employees hired into the multiemployer bar- gaining unit from September 21, 1988 until after July 11, 1990. In fact, there is no contention by Local 1036 that it ever thereafter provided such notice to newly hired employ- ees when it sought to obligate them to pay dues. Therefore, by failing to do so, Local 1036 violated Section 8(b)(1)(A), but not Section 8(b)(2), of the Act. To remedy the foregoing violations, Local 1036 shall be directed to cease and desist notifying employees in the unit encompassed by its collective-bargaining contracts with Food Employers Council, Inc. that they are required to file a membership application and become members of Local 1036 as a condition of employment, or that they are required to perform any obligation of union membership other than the tender of the periodic dues and initiation fees uniformly re- quired as a condition of acquiring or retaining membership in Local 1036. Affirmatively, Local 1036 shall be ordered to notify all employees to whom a “welcoming” letter was sent on and after September 21, 1988, notice of their statutory right to refrain from becoming and remaining a member of Local 1036 and to refrain from performing any obligation of union membership other than tendering periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in Local 1036. With respect to the latter, Local 1036 shall further be ordered to notify each of those employees, that he/she has the rights quoted above from California Saw. As stated above, Local 1036 claimed that it had no records showing names of employees to whom its welcoming letter had been sent. However, two of those employees are charg- ing parties in this proceeding. One is Glenn T. Hilton, who filed the unfair labor practice charge in what has become Case 16–CB–3850–25 on March 3, 1989. The other is John B. Nosek, who filed the charge in what has become Case 16– CB–3850–27 on April 11, 1991. Hilton began working for Ralph’s in the multiemployer bargaining unit on August 15, 1988. Nosek commenced work for Lucky in that unit in June of 1990. Hilton received a welcoming letter dated Septem- ber 21, 1988; Nosek received one dated July 11, 1990. It is undisputed that Local 1036 eventually received no- tices from Hilton and from Nosek, in essence, stating that neither man desired to be other than a “financial core” mem- ber. In his brief to the Board in support of his exceptions, Counsel for the General Counsel concludes his “STATEMENT OF FACTS” pertaining to Local 1036 by stating: In response, Local 1036 advised, inter alia, that it would seek Hilton’s termination if he took any “unilat- eral” action with respect to his dues payment. (G.C. Exh. 1036/8). Moreover, in spite of Hilton’s objection to paying for the nonrepresentational activities of Local 1036, the Local continued to charge him full Union dues, including amounts for nonrepresentational activi- ties. (Tr. 509–510.) So far as it goes, that is an accurate recitation. But, it omits certain other facts pertaining to Hilton and omits altogether Local 1036’s reaction to Nosek’s notice. In his letter to Local 1036, dated November 28, 1988, Hil- ton requested a current accounting statement of dues expen- ditures so that he could determine the amount which he should pay for collective bargaining. He was informed, by letter from Local 1036’s president dated December 21, 1988, that the local was “auditing its records to determine the dues and fees a financial core member is obligated to pay,” and that he would be provided with that information “by separate cover.” In the meantime, continues the letter, Hilton would be afforded “the opportunity to appeal . . . through internal administrative procedures” Local 1036’s determination re- garding his financial obligations. On March 23, 1989, Local 1036’s counsel advised Hilton, inter alia, that, “The Union is in the process of completing its audit and will advise you when it has been completed.” By letter dated April 25, 1989, counsel notified Hilton that the audit had been completed, but Local 1036 “believes that it needs some additional time to refine that audit to make sure it is entirely correct.” That April letter does assert that “somewhat less than 5% of its expenses are non-chargeable,” and offers “to refund to you 5% of the dues which you have paid since you filed your objections,” adding that Local 1036 will “retain in an escrow account an additional 5% to make sure that if any of the amounts you have paid in excess of 5% turn out to be non- chargeable, those amounts are not used for non-changeable activities.” But, that April 25, 1989 letter provided Hilton with no breakdown of Local 1036’s financial expenditures into chargeable and non-chargeable categories. And Local 1036 continued to charge Hilton full membership dues. After receiving his welcoming letter dated July 11, 1990, Nosek requested, but never received by the time that he filed his above-mentioned unfair labor practice charge, informa- tion concerning the percentage of funds spent during the last accounting year for nonrepresentational activities. In fact, there is a stipulation that no unit employee hired since Sep- tember 3, 1988, had been provided with such information. Nor were Hilton, Nosek, or any other unit employee hired since then provided with a statement that nonmembers could object to having their union security payments spent on non- representation or nonchargeable activities, a statement that an objector will be charged only for representation or chargeable activities, nor a statement that an objector will be provided with detailed information concerning the break- down between representation or chargeable activities, on the one hand, and nonrepresentation, or nonchargeable activities, on the other. Notwithstanding the foregoing stipulation, the record does reveal that Nosek did receive notice, by letter dated March 2, 1992, that, as a result of an audit for 1988, Local 1036 had determined that nonchargeable expenses amounted to 6.98 percent of its expenditures for that year. That letter also asserted generally “that there has been no change in this fig- ure for 1989, 1990 and 1991.” An attached audit for calen- dar year 1988 consisted of a list of items with a “% NON- RETAINABLE TO TOTAL EXPENSE” figure opposite FOOD & COMMERCIAL WORKERS LOCALS 951, 7, & 1036 (MEIJER, INC.) 751 each listed item. No similar lists were supplied to Nosek for years after 1988. Local 1036’s March 2, 1992 letter also threatened Nosek with termination if he did not pay membership dues. In fact, Hilton also had received a letter containing such a threat. However, there is no evidence that Local 1036 approached Ralph’s regarding Hilton’s continued employment by it. In contrast, by letter to Lucky dated March 27, 1991, Local 1036 demanded that Lucky cease scheduling Nosek for work until he displayed proof of compliance with his membership obligations. Still, there is no allegation that Lucky ever complied with that demand. With respect to the facts recited immediately above, the General Counsel argues, both in the brief to the Board in support of exceptions and in the remand brief, that Local 1036 threatened “to discharge a nonmember employee for nonpayment of dues to which he objects” and that “such threat violates Section 8(b)(1)(A) of the Act because it has the natural tendency to restrain and coerce nonmembers into financially supporting the union beyond what is permitted under Beck.” Those facts obviously establish that the Gen- eral Counsel’s argument is a correct one—not only with re- gard to Hilton, but also in regard to Nosek. Both employees objected to being regarded as other than “financial core” members. There is no evidence that Local 1036 did not comprehend what was meant by those commu- nications. To the contrary, it threatened Hilton’s employ- ment status if he took any “unilateral” action concerning his dues payments and played games in response to Hilton’s request for current accounting statements of Local 1036’s expenditures from dues. It ignored altogether Nosek’s simi- lar request. It stipulated that it never has supplied such in- formation to any multiemployer unit employee hired since September 3, 1988. The Board has stated that, “If the employee chooses to ob- ject, he must be apprised of the percentage of the [dues] re- duction, the basis for the calculation, and the right to chal- lenge those figures.” (Footnote omitted.) California Saw, supra, 320 NLRB at 233. Failure to do so constitutes breach of a labor organization’s duty of fair representation. Rather than comply with that duty, Local 1036 continued to demand and collect full membership dues from Hilton and, as well, from Nosek. In the process, as set forth above, it threatened both employees with termination if they failed to continue paying full membership dues. Local 1036’s will- ingness to pursue the latter course was demonstrated by its above-described communication to Lucky, Nosek’s em- ployer. Therefore, in the face of objection to paying more than, in effect, representation expenses, Local 1036’s de- mand for continued payment, and its collection, of full mem- bership dues violates Section 8(b)(1)(A) of the Act and its threats of discharge if objecting employees fail to comply with its demand constituted a violation of Section 8(b)(1)(A) of the Act. Local 1036 resisted compliance with the General Coun- sel’s subpoenas for information in connection with the por- tions of the second consolidated amended complaint, as fur- ther amended, which pertained to its alleged unlawful con- duct. Eventually, after district court enforcement of a peti- tion to compel compliance with the General Counsel’s sub- poena, a stipulation was achieved for sufficient information to enable the matter to proceed in connection with the charges of Hilton and Nosek. Still, as pointed out above, a multiemployer bargaining unit is encompassed by the con- clusion that Local 1036 unlawfully informed all newly hired employees from, at least, September 21, 1988, until after July 11, 1990, that they were required to become members of Local 1036 as a condition of employment. In the totality of the foregoing circumstances, it seems proper as a remedial matter, and to implement employee rights under the Act as enunciated by the Supreme Court in Beck and by the Board in California Saw, to direct that Local 1036 reimburse not only Hilton, but also Nosek and any other employee who filed objections to full dues payment with Local 1036 on and after September 21, 1988, and who is not shown to have been furnished with the information specified above in California Saw, but who was obligated to continue paying full membership dues thereafter. Of course a reimbursement remedy does not extend to any such employee who had failed to file an objection with Local 1036 to full dues payment, as did Hilton and Nosek. To be sure, since none were notified of their Beck rights at the threshold of their employment, there is some sympathy for an argument that they were deprived of any opportunity to object and that Respondent was at fault for such a failure. Nonetheless, the Board in California Saw does not appear to contemplate that reimbursement will be extended as a rem- edy to other than employees who are shown to have objected. As to the notice posting remedial requirement, Local 1036 shall be ordered to post at its hall office copies of the notice, as is normally required by the Board. However, inasmuch as employees who are, or were at one time, employed in the multiemployer bargaining unit might not visit Local 1036’s hall, and as Local 1036 pleads lack of complete records of employees’ identities to whom its welcoming letter had been sent, it seems appropriate to order Local 1036 to mail copies of the notice, at its own expense, to each employee who worked in that unit since September 21, 1988, either at his/her last known address or to any other address supplied to Local 1036 by the General Counsel’s office—such as, from employers’ records—during the compliance phase of this proceeding. In addition, the General Counsel requested that the Board order Local 1036 “to post a notice at all stores within the multiemployer bargaining unit[.]” That may seem a logical means for reaching employees who received a welcoming letter. However, none of those employers are respondents in this proceeding and the Board possesses no authority to re- quire them to allow Local 1036 to post notices on their prem- ises, at least absent some form of contractual right for such posting. Therefore, I shall order the usual remedial provision for Local 1036 to submit signed copies of the notices for posting by those employers who are willing to do so. III. ALLEGATIONS AGAINST UNITED FOOD AND COMMERCIAL WORKERS LOCAL 951 The unfair labor practice charges against Local 951 were filed by three employees of Meijer, Inc., a Michigan corpora- tion with a principal office and place of business in Grand Rapids, Michigan, and with places of business throughout that State where it engages in the retail sale of groceries, household appliances, clothing, and other consumer goods. In the course and conduct of those business operations dur- ing the representative period of 12 months prior to March 25, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 752 1992, Meijer derived gross revenues in excess of $500,000 and, further, purchased goods and materials valued in excess of $5000 which were received at its Grand Rapids facilities directly from outside the State of Michigan. Therefore, at all material times, Meijer has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Meijer and Local 951 have been parties to three different collective-bargaining contracts: the Newport Distribution Center Contract, the Retail Contract, and the Distribution Center Contract. The two most recent of those contracts had been effective by their terms from November 29, 1987, through September 2, 1991, and from September 2, 1991, through September 23, 1995. As a result, by virtue of Sec- tion 9(a) of the Act, Local 951 has been the exclusive repre- sentative of units of employees employed by Meijer for pur- poses of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Article 3.2 of each of those six collective-bargaining con- tracts contains a union-security clause. To the extent perti- nent here, those clauses provide:1 It shall be a continuing condition of employment that all employees of the Employer covered by this Agreement who are members of the Union in good standing on the execution date of this Agreement shall remain members in good standing and those who are not members on the execution date of this Agreement shall, following thirteen weeks of active employment, become and remain members in good standing in the Union. It shall also be a continuing condition of employ- ment that all employees covered by this Agreement and hired on or after the date of execution shall, following thirteen (13) weeks of active employment, become and remain members in good standing in the Union. . . . . To be a member of the Union in good standing as required by this section, an employee must tender to the Union the periodic dues and the initiation fee uniformly required as a condition of acquiring or retaining mem- bership. Any employee who is required to be a member of the Union by this section and who fails to render such uniform dues and initiation shall not be retained as an employee in the bargaining unit so long as the Union has given written notice to the Company and employee of such failure, and such failure is not cured by em- ployee within seven (7) days of such notice. Those employees who maintain a non-member status or change their status to a non-member status and are covered by the terms of this agreement shall be required to pay as a condition of employment, an initial service fee, monthly (or otherwise) service fees to the Union for the purpose of aiding the Union in defraying cost in connection with the Union’s obligations and responsi- bilities as the exclusive bargaining agent of the bargain- ing unit herein. 1 The three 1987–1991 contracts contained the phrase “thirty (30) calendar days,” which was replaced by “thirteen (13) weeks of active employment” in the 1991–1995 contracts. In light of the Supreme Court’s Beck decision, Local 951 implemented a Service Rebate Procedure. All nonmembers would continue to be charged for an amount equivalent to full membership dues. However, under the Service Rebate Procedure, by January 15 of each year, each nonmember would be notified of his/her right to object, of the possibility that a portion of service fees paid might be rebated, and of instructions for obtaining financial disclosure materials and for filing timely objections to them. By March 1 of each year, each responding individual would be sent a certified list of expenditures by major cate- gory for the preceding fiscal year, showing whether each category, or portion of it, is chargeable to objecting non- members and the certifying public accountant’s explanation of method used to make those calculations. Also included is to be the percentage of each previous year’s membership dues chargeable to objecting nonmembers and a calculation of the previous year’s chargeable percentage which will be applied to the amount of the current year’s full members’ dues. A copy of the Rebate Procedure, itself, will also be enclosed. As to individuals claiming nonmember status dur- ing a membership year, the Procedure specifies that the above-enumerated notices will be provided within 30 days of claiming nonmember status. Objections to the annual determined service fee amount must be made in writing and received by Local 951’s Grand Rapids office no later than March 31 of each year. As to individuals claiming nonmembership status at other times during a current membership year, they must file an objec- tion within 30 days of receipt by them of the above- mentioned notices. When objections are received, an appeal procedure is con- ducted “and all service fees collected from the objecting nonmembers will be placed into a flat rate interest bearing escrow account pending the outcome of the appeal process.” That process specified “appeal at the next regularly sched- uled meeting of the Local Union’s Executive Board,” which will, in turn, “issue a written decision within fifteen (15) days.” The objecting party then has 10 days to object to the executive board’s decision. If objections are received, Local 951 “will contact the American Arbitration Association within five (5) business days thereafter to arrange for an impartial arbitrator to decide the amount of the service fee.” It is the American Arbitra- tion Association (AAA), which selects the arbitrator and no provision is made for participation in that process by object- ing nonmembers. “All timely objections will be consolidated into one hearing per year, to be held at a location and on a date determined by the arbitrator.” Rebate checks are to be issued semiannually, on or before June 1 and on or before December 1. Adjustment checks will issue, if warranted by an arbitrator’s fee determination, “by the close of the next full pay period after the date of the arbitrator’s determination” from the escrow account, with interest on the amounts owed. In his statement of “ISSUES” in the brief filed with the Board in support of exceptions, counsel for the General Counsel states, as one issue: “C. Whether Respondent UFCW Local 951 violated Section 8(b)(1)(A) and (2) of the Act by requiring nonmembers to file their objections with Local 951’s executive board before presenting their chal- lenges to an arbitrator.” In the “ANALYSIS AND FOOD & COMMERCIAL WORKERS LOCALS 951, 7, & 1036 (MEIJER, INC.) 753 ARGUMENT” Section of that brief, as well as in the brief filed in response to the remand, however, no independent argument is directed to the asserted issue of requiring objec- tions to be filed with Local 951’s executive board before they are presented to an arbitrator. Instead, the issue is con- solidated at the end of an argument section addressed princi- pally to an exhaustion of remedies requirement. In that sec- tion, the asserted issue of filing objections with the executive board of Local 951 is left unargued as a separate alleged violation of the Act. It is difficult to divine, standing alone, how that aspect of Local 951’s procedure could be concluded to be a violation of either Section 8(b)(1)(A) or Section 8(b)(2) of the Act. In fact, it is difficult to ascertain how it could ever be concluded to be a violation of Section 8(b)(2) of the Act. There is no evidence that Local 951 has treated the requirement of filing with its executive board as some sort of technicality or ob- stacle imposed to avoid receiving or addressing challenges to objectors’ periodic payments under union-security provi- sions. Cf. California Saw, supra, 230 NLRB at 235–237. So far as the record discloses, Local 951 acknowledged receipt of challenges which were filed and its Executive Board proc- essed them, albeit not to the satisfaction of employees who filed them. Labor organizations are entitled to some latitude to when establishing a procedure for nonmembers to challenge the amounts being required from those employees pursuant to a union-security provision. Filing with a local union’s execu- tive board is a logical step, given the fact that it is a logical body to make a final determination concerning the alloca- tions between chargeable and nonchargeable expenditures. Seemingly, it is a body, which could direct that changes be made, should there be a conclusion of merit to a challenge. Therefore, I conclude that this aspect of Local 951’s chal- lenge procedure does not give rise to a violation of either Section 8(b)(1)(A) or Section 8(b)(2) of the Act. In his “STATEMENT OF FACT” in his brief to the Board, counsel for the General Counsel points out several facts which he implies, but never alleges directly, render the arbitration step as less than satisfactory, though he never actually contends that it violates Local 951’s duty of fair representation. It should be pointed out that the Board ap- pears to have accepted the propriety of a challenge procedure which specifies that arbitration under the auspices of AAA will be the ultimate step in that procedure. California Saw, supra, 230 NLRB at 239, 242–243. Of itself, therefore, there is no breach of the duty of fair representation by Local 951 in imposing that step as the final one in its challenge proce- dure. Both the General Counsel and some Charging Parties pro- test the lack of discretion, which the arbitration procedure affords nonmember employees who have filed challenges. For example, they have no voice in selecting AAA as the entity under whose auspices the arbitration will be con- ducted. And individual challenging nonmembers did not agree specifically to the arbitrators who conducted those proceedings. Yet, those are not matters alleged specifically to have violated the Act. To the extent that it might be as- serted that they were litigated, and thus subject to inclusion by way of amendment to the complaint, no such motion to amend has been made. Indeed, counsel for the General Counsel makes no specific argument addressed independ- ently to the events of the two arbitration proceedings men- tioned below. In any event, if challenge procedures in spe- cific situations are not conducted properly, or if a particular arbitration fails to conform to what is required under the duty of fair representation, disadvantaged nonmembers may file unfair labor practices concerning them. Here, at best, it can be said only that the General Counsel questions generally arbitration under the auspices of AAA. As to that, the Board has not found a violation of the Act. Another provision of Local 951’s Service Rebate Proce- dure states: “Any objecting non-member must exhaust the remedies provided by this procedure prior to seeking judicial review of any issues capable of resolution under this proce- dure,” though an arbitrator’s determination may be chal- lenged “according to law.” Counsel for the General Counsel argues as to that restriction: Local 951 violated Section 8(b)(1)(A) and (2) of the Act by requiring objecting nonmembers to exhaust internal union remedies before challenging the Union’s account- ing before the NLRB and requiring objecting nonmem- bers to file their objections with the Union’s Executive Board before appealing to an arbitrator. As pointed out above, counsel for the General Counsel makes no argument that the last phrase in that exhaustion requirement independently violates the Act. In any event, as concluded above, there is no basis for concluding that the requirement independently violates the Act. It is accurate that the exhaustion of remedies provision makes no specific mention of the Board. Yet, the Board need not be specified by name for a statement to reasonably imply that proceedings before it are encompassed by an ex- haustion requirement. See Garment Workers, 295 NLRB 411, 414–415 (1989). In that case, the Board adopted Judge Bennett’s reasoning that since the word “charge” had been used in the restriction, “seasoned, experienced, and sophisti- cated union officials” would understand that word to encom- pass “any agency involved in protecting workers rights” and “that certainly the Board would be such an agency.” Here, the quoted restriction does not use the work “charge.” But, neither is it addressed to “seasoned, experi- enced and sophisticated union officials.” At worst, it creates an ambiguity and at least some employees reasonably could interpret the phrase “judicial proceedings” as encompassing unfair labor practice proceedings under the Act. After all, such proceedings do include adversary hearings conducted by administrative law judges and, in some instances, review by United States Courts of Appeals. In fact, in NLRB v. Shipbuilders Workers, 391 U.S. 418 (1968), the restriction before the Court made mention neither of “Board” nor “charge.” It stated only “any court or other tribunal outside of the Union.” Still, the Court had no difficulty concluding that it encompassed filing charges under the Act. Local 951 has not contended, nor presented evidence to support a contention, that it had notified any employees that the above-quoted exhaustion restriction excluded filing charges with the Board. It was Local 951, which formulated and published the restriction. As such, it bears the burden of the consequences of any ambiguity created by its wording. Accordingly, I conclude that the restriction can reasonably be read by employees as including proceedings before the Board. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 754 In Shipbuilders Workers, as here, the subject involved was “in the public domain and beyond the internal affairs of the union.” (supra at 425.) To require, as part of a procedure to challenging amounts charged nonmembers under a union- security provision, that objectors must exhaust internal pro- cedures is to impose an arbitrary and unreasonable require- ment which is contrary to public policy. Therefore, Local 951 violated Section 8(b)(1)(A), but not Section 8(b)(2), of the Act by publishing the above-quoted exhaustion require- ment, since it constitutes a breach of the duty of fair repre- sentation. It shall be ordered to cease and desist imposing that exhaustion requirement and, affirmatively, to republish its Service Rebate Procedure with that requirement deleted. Turning to more specific events, which occurred under the Service Rebate Procedure, when Local 951 was confronted with challenges, there is evidence concerning three non- member-employees. By the time of the hearing, Phillip G. Mulder had been employed by Meijer, in a bargaining unit represented by Local 951, continuously since March 11, 1987. Charles Buck had been employed continuously by Meijer, in a bargaining unit represented by Local 951, since May of 1988. Leon Gibbons became employed by Meijer on August 5, 1985, and, save for periods of military service, remained employed continuously by Meijer until the hear- ing.2 Each became members of Local 951, apparently pursu- ant to the appropriate union-security provisions in then- existing collective-bargaining agree-ments between Local 951 and Meijer. Each also resigned that membership: Mulder on October 27, 1988; Buck on March 30, 1989; and, Gibbons on No- vember 13, 1989. While it acknowledged each resignation, Local 951 continued to demand that full membership dues continue to be paid by each of the three employees. The money received from them was placed in escrow, pursuant to Local 951’s Service Rebate Procedure. Amounts which are attributable to what Local 951 views as nonrepresentation activities are then remitted to the nonmember-employee on June 1 and on December 1 of each year. The General Counsel alleges that such a rebate procedure violates Section 8(b)(1)(A) and (2) of the Act, because it forces nonmembers to continue paying, pursuant to a con- tractual union-security provision, some money allocated to activities for which Local 951 has no right to collect, because not all of its activities involve collective bargaining, contract administration, and grievance adjustment. Local 951 count- ers essentially that it is too burdensome to require it to make an ongoing prediction of its expenditures for activities and to constantly be adjusting amounts which can be charged for representation activities. In that regard, it points to its size, the number of different types of employers with which it maintains collective-bargaining contracts and, indeed, the geographic scope of the bargaining units in contracts with Meijer. That is simply not acceptable as a defense. 2 Mulder filed the unfair labor practice charges in what has be- come Case 16–CB–3850–2 on November 9, 1988, and amended it on March 6, 1989, in what has become Case 16–CB–3850–3 on July 26, 1990, in what has become Case 16–CB–3850–6 on April 11, 1991, and in what has become Case 16–CB–3850–35 on July 30, 1991. The charges in what have become Cases 16–CB–3850–4 and –5 were filed by Buck and Gibbons on August 6, 1990, and on March 15, 1991, respectively. All three employees filed the charge in what has become Case 16–CB–3850–36 on August 5, 1991. Labor organizations are obliged to refrain from utilizing union-security provisions to deprive nonmember-employees of money which will be allocated to activities other than collective bargaining, contract administration and grievance adjustment. To compel such payments through contractual union-security provisions constitutes a “forced exaction.” Chicago Teachers Local 1 v. Hudson, 475 U.S. 292, 305– 306 (1986). That is no less so under the Act than in the pub- lic sector. To be sure, since objectors’ payments were placed in es- crow, Local 951 does not actually spend any of that money for non-representation purposes. Yet, at root, the right at issue is that of not having to surrender coerced amounts des- ignated for activities other than representation ones. When this happens, viewed from their perspective, employees are being obliged to surrender the money for such other activi- ties, even though it may not ultimately be spent to actually finance those activities. Even where only for temporary periods, those exactions deprive nonmembers of those funds and that is not allowable under the Act. Local 951’s situation is not salvaged by defenses of ad- ministrative difficulty and expense. In the first place, there is no actual showing that contracting employers and Local 951 would be completely incapable of adjusting deductions for nonmembers’ payments under their union-security provi- sions. After all, for example, Meijer regularly makes deduc- tions from employees’ paychecks. In the process, it accom- modates changes in those deductions. Of course, there would be problems if Meijer, or any other employer, were obliged to make ongoing daily, weekly, or even monthly changes in amounts of nonmembers’ payments to Local 951. However, in the second place, ongoing changes do not appear to be contemplated by the duty of fair representation. In California Saw, the Board appeared satis- fied with allocations based upon the preceding year’s ex- penses for labor organizations’ activities: “On receipt of the objection, the employee’s dues are reduced automatically according to past allocations of expenses for union activities grouped by categories, and an escrow arrangement is put in place.” (320 NLRB 231.) The Board never concluded that either aspect of that was at odds with the duty of fair repre- sentation. The General Counsel challenges Local 951’s continued compelled collection of full dues when, based upon past expenditures in various categories, it is plainly apparent that some of those payments are allocable to ongoing activities other than collective bargaining, contract administration, and grievance adjustment. Local 951 has made no showing that past expenditures cannot be utilized as a guide for nonmem- bers’ current payments, just as the respondents in California Saw utilized them. In fact, as set forth above, that is exactly what it has been doing. Such a procedure still allows for allocation changes for current years whenever a change in activities is fairly antici- pated – whenever, for example, a labor organization aban- dons a particular non-representation activity or, by way of another example, whenever it anticipates a greater represen- tation expenditure for such matters as an anticipated pro- longed and expensive contract negotiation or for an unusu- ally large number of grievances which will be proceeding to arbitration. If challenges are filed to those changes, Local 951, like the California Saw locals, can place the disputed FOOD & COMMERCIAL WORKERS LOCALS 951, 7, & 1036 (MEIJER, INC.) 755 amounts, allocable to those projected changes, in escrow and allow to run their course the procedures for challenging those payments. For, the General Counsel does not appear to be contending that the Act is violated by the mere act of depos- iting truly disputed amounts in escrow accounts, pending final resolution of their disposition. Therefore, I conclude that by continuing to collect the full amounts of membership dues from objecting nonmembers, Local 951 violated Section 8(b)(1)(A), but not Section 8(b)(2), of the Act. It shall be ordered to cease and desist from doing so and, affirmatively, to release from escrow and return to nonmembers amounts which, based upon past ex- penditures, are not allocable to collective bargaining, con- tract administration and grievance adjustment, with interest to be paid on the amounts owing. Aside from organizing expenses, discussed in the succeed- ing section, counsel for the General Counsel highlights three specific aspects of the disclosures made to Mulder, Buck, and Gibbons. First, Local 951’s comptroller conceded that for calendar year 1989, Local 951 had failed to disclose for what activities 6.62 percent of its total expenditures had been made. Inasmuch as the entire purpose for disclosure is to allow nonmembers to decide whether or not to challenge amounts of dues reductions, a failure to disclose complete information, even when inadvertent, effectively deprives those employees of ability to make reasoned decisions about voicing challenges. Therefore, by failing to disclose its total expenditures for 1989, Local 951 violated Section 8(b)(1)(A) of the Act. It shall be ordered to cease and desist from fail- ing to make full disclosure of its expenditures. The second aspect pertains to lobbying expenses. Local 951 takes the position that such expenses, especially where shown to benefit employees in the bargaining unit in which an objector is employed, are properly chargeable as represen- tation expenditures. Further, it argues that, in footnote 79 of California Saw, the Board, in effect, reserved ruling on the issue of chargeability of lobbying where, contrary to the situation in that case, a respondent contends that lobbying expenses are properly chargeable. In the text of its California Saw decision, however, the Board seems to have endorsed the conclusion that lobbying is the type of activity for which expenditures would not be chargeable, in connection with its discussion of litigation expenses: “The kinds of extra-unit litigation that we con- template as being properly chargeable to objectors under a union-security clause would not be the kind of lawsuits that are ‘akin to lobbying.’” (Footnote omitted.) (supra at 238.) Consequently, it would appear that the Board has concluded that, under the Act, lobbying is not a representation activity and that expenditures for it are not chargeable to nonmem- bers. Of course, consistent with its conclusion regarding litiga- tion expenses, the Board may be willing to allow some spe- cific lobbying expenses to be chargeable to nonmembers. However, seemingly that might occur only where it is shown that particular lobbying activities are confined to collective bargaining, contract administration and grievance adjustment and directly benefit employees in the bargaining unit in- volved in a proceeding. The record and the arguments pre- sented here have not been so finely tuned. Local 951 has created a separate category for lobbying not related to interests of the bargaining unit. Yet, its comptrol- ler testified that she could not be certain, from records of expenditures submitted to her, if there had been lobbying and, if so, what type of lobbying had been conducted. Be- yond that, even if Local 951 had not spent any funds for lob- bying during a particular year, it takes the absolute position that lobbying expenses are properly chargeable to nonmem- bers as a cost of representation. It has made no showing that lobbying which it has conducted had been confined to repre- sentation areas. Therefore, it is a breach of its duty of fair representation to include lobbying among the activities for collective bargaining, contract administration and grievance adjustment, in violation of Section 8(b)(1)(A) of the act. The final aspect of Local 951’s disclosures to nonmembers pertains to money submitted by it to International. Pursuant to International’s constitution and to its own bylaws, Local 951 remits revenues from dues to International as per capita taxes on each member. A equivalent amount is submitted to International for each nonmember paying a service fee.3 Contending that International is an agent of Local 951, the General Counsel argues that the latter is obliged to disclose to objectors the representation and non-representation ex- penditures of International. There are problems with that argument, however. In the first place, International is not named as a respon- dent in this proceeding. So, it cannot be ordered to make disclosures to Local 951 which, in turn, the General Counsel wants Local 951 to make to nonmembers. Second, there is no evidence that International is obliged to disclose categories of its expenditures to its chartered lo- cal unions. Accordingly, there is no evidence that Local 951 possesses power or authority to compel International to make disclosures to it. Third, unlike the apparent situation with other organiza- tions to which Local 951 remits per capita taxes, its remis- sions of such taxes and equivalent nonmember payments to International do not appear to possess any aspect of discre- tion. International chartered Local 951. Seemingly, Local 951 must remain affiliated with International to continue as the entity named as respondent in this proceeding. There is no basis in the record for concluding that, in seeming con- trast to organizations such as the Jackson County Local La- bor Council, for example, Local 951 is freely to simply ter- minate its relationship with International, as a course of last resort if the latter will not comply with Local 951’s requests. Fourth, as the creation and affiliate of International, Local 951 must continue paying to it the per capita tax and equiva- lent nonmember amounts demanded by International. There is no evidence that Local 951 has any greater discretion in that regard than does a citizen with respect to payment of state and federal taxes. As some sort of apparent device for imposing responsibil- ity upon Local 951 for disclosure to nonmembers of Interna- tional’s chargeable and nonchargeable expenditures, the General Counsel alleges that International is an agent of Local 951. Yet, the reality is that, if a general agency rela- tionship exists, it appears to be Local 951 which is the agent of International, in light of the totality of considerations 3 Local 951 also remits per capita taxes to other organizations of which it is a member—such as Michigan State AFL–CIO, Detroit Metro Local Labor Council, Jackson County Local Labor Council— but no allegation has been made concerning those payments. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 756 enumerated above. Beyond that, to the extent that Interna- tional is Local 951’s agent with respect to per capita taxes and equivalent payments submitted by the latter to the for- mer, there is no evidence that Local 951 can compel Interna- tional to submit the information which the General Counsel contends must be provided by Local 951 to nonmembers. It would have been a relatively simple matter for one or more of the charging parties to have included International as a respondent in this proceeding. That could have been ac- complished by filing an unfair labor practice charge against International. That did not happen, apparently. Or if it did occur, the General Counsel chose not to include such a charge among the one which have led to this consolidated proceeding. In the circumstances, therefore, it appears that simply ordering Local 951 to disclose to nonmembers infor- mation regarding International’s expenditures may be to order a meaningless remedy under an agency approach. Still, that does not mean that Mulder, Buck, and Gibbons are left without a remedy concerning the remission to Inter- national of amounts equivalent to per capita taxes. After all, it had been their service fee payments which Local 951 had compelled under union-security provisions. Local 951 has never contended that it has not received some accounting or, at least, explanation for how International expended its re- ceipts. Obviously, whatever such information Local 951 has obtained should, in turn, be made available to nonmembers. For, it is Local 951 which “bears the burden of proving that the expenditures of the challenger’s specific local union are chargeable to the degree asserted.” California Saw, supra, 320 NLRB at 242. That burden cannot be escaped simply by handing compelled exactions over to some other entity and, then, being unwilling to divulge what that other entity has reported as to how it spends remissions made to it. To the extent that such disclosure shows that some per- centage of those expenditures by International have been for non-representation activities, objectors are entitled to a cor- responding reduction in the amounts which they must tender to Local 951. Beyond that, in view of its burden of proving that its expenditures have been chargeable ones, and in light of the facts that it received those payments from nonmem- bers and remitted a portion of them to International, it is Local 951 which must bear the burden of any failure to show that it has spent those funds for representation activities. As in other areas under the Act, any uncertainty must be re- solved against Local 951. Such an approach provides a more direct method of resolving the issue of payments to Interna- tional than, in the circumstances, is provided by an agency approach. Local 951 did not supply Mulder, Buck, and Gibbons with any information concerning International’s expenditures, so far as the evidence discloses. It made no effort, so far as the record shows, to do so. Therefore, it committed a breach of its duty of fair representation owned nonmembers and, thereby, violated Section 8(b)(1)(A), but not Section 8(b)(2), of the Act. It shall be ordered to cease collecting that portion of periodic dues from nonmembers, absent a disclosure of International’s expenditures, and to return to Mulder, Buck and Gibbons those portions of their compelled dues which were remitted to International, with interest on amounts ow- ing. Turning to the final aspect of Local 951’s Service Rebate Procedure, its Executive Board did meet in successive years and, both times, concluded that there was no merit to chal- lenges to Local 951’s allocations and amounts of expendi- tures. That same conclusion was reached in the subsequent successive arbitrations conducted under the auspices of AAA. As a consequence, Mulder, Buck, and Gibbons were obliged to accept results which included a failure to exclude lobbying expenses as a chargeable representation activity and, further, did not account for International’s expenditures of equivalent amounts remitted to it by Local 951. The 1990 arbitration did not end there. On July 24, 1991, Local 951 filed an Application for Order Confirming an Ar- bitration Award with the United States District Court for the Western District of Michigan. That action was filed against Mulder, Buck, and Gibbons. It sought confirmation of the arbitration award issued on July 27, 1990. Based upon the underlying failure to disclose allocation of International’s expenditures and, as well, the inclusion of lobbying expenses as a chargeable item, the General Counsel alleges that Local 951 violated Sections 8(b)(1)(A) and (2) of the Act by filing and pursuing the Application for Order Confirming an Arbi- tration Award. I agree as to the alleged violation of Section 8(b)(1)(A) of the Act, though I find no basis for concluding that there has been a violation of Section 8(b)(2) of the Act in support of which no argument has been advanced. The 1990 arbitration award was inherently defective be- cause it effectively endorsed a failure to disclose information needed by objectors, the International’s expenditure alloca- tion, and endorsed allowing lobbying expenses to be in- cluded as chargeable. As concluded above, both violated Section 8(b)(1)(A) of the Act. Consequently, the arbitration award was based upon and endorsed unfair labor practices. As it turned out, the District Court action was dismissed and the dismissal was upheld on appeal. See, Commercial Workers Local 951, Mulder, 31 F.3d 365 (6th Cir. 1994). Consequently, there is no bar to considering under the Act the lawfulness of Local 951’s action to confirm arbitration as a result of the holdings in Bill Johnson’s Restaurant, Inc. v. NLRB, 461 U.S. 731 (1983). There can be no question that Local 951 knew that lobby- ing expenses had been included as being made for a repre- sentation activity. There can be no question that it also knew that International’s allocation of expenditures had been ex- cluded from its disclosures to objecting employees. In con- sequence, at the time that it filed its district court action, it possessed knowledge of the facts underlying unfair labor practices. The district court action had been commenced and maintained to confirm an arbitration award, which in turn, had endorsed unfair labor practices. In these circumstances, by filing a judicial action to confirm an arbitration award which endorsed unfair labor practices, Local 951 violated Section 8(b)(1)(A), but not Section 8(b)(2), of the Act. IV. ALLOCATION OF ORGANIZING EXPENSES Two local-union-respondents contend that organizing is an activity which should be included within the ambit of collec- tive bargaining, contract administration and grievance ad- justment. They are Local 951 and United Food and Com- mercial Workers Local 7. The appropriate parties stipulated, at all material times, Local 7 has been the exclusive repre- sentative, within the meaning of Section 9(a) of the Act, of employees working in separate units of employees working in Glenwood Springs, Fruita and Steamboat Springs, Colo- FOOD & COMMERCIAL WORKERS LOCALS 951, 7, & 1036 (MEIJER, INC.) 757 rado, for City Markets. The most recent collective- bargaining contracts between Local 7 and City Markets were effective by their terms from September 13, 1987, through August 4, 1990, and from August 5, 1990, through July 31, 1993. Only employees working at Steamboat Springs had been subject to a union-security provision in the 1990 to 1993 contract. The appropriate parties further stipulated that Local 7 is the exclusive representative of a unit of employees working for Champion Boxed Beef, as a result of a series of collec- tive-bargaining contracts between those parties. The two most recent contracts were effective by their terms from May 1, 1988, through May 4, 1991, and from May 5, 1991, through May 5, 1994. Both contained union-security provi- sions. For the most part, the unfair labor practices against Local 7 have been settled. Reserved from those settlements is the issue of allocation of expenses for organizing. The General Counsel and certain Charging Parties contend—contrary to Local 7 and, as well, to Local 951—that expenditures for such activity are not ones for collective bargaining, contract administration and grievance adjustment. I do not agree. The principal reason for the argument that organizing ex- penses are not allocable to representation activities is that they are not chargeable to nonmembers under the Railway Labor Act and in the public sector. It is further argued that such expenditures do not directly benefit employees in units represented by Local 7 and Local 951 or, at least, have not been shown specifically to confer any benefit on employees in those units. To the contrary, it is contended, such expen- ditures are ideological in nature and, like lobbying, should not be allocated to collective bargaining, contract administra- tion and grievance adjustment activities. In California Saw, the Board reached conclusions which are pertinent to, though not dispositive of, that issue. First, it concluded that Railway Labor Act and public sector prece- dent does not govern evaluation under the Act of union ex- penditures and of allocation concerning them. Second, it concluded that unit-by-unit accounting and restriction of expenditures is not requiring under the Act. Third, the Board concluded that costs of some extra-unit activities are prop- erly chargeable to nonmembers if those activities are “ger- mane to the union’s role in collective bargaining, contract administration, and grievance adjustment—regardless of whether the activities were performed for the direct benefit of the objector’s bargaining unit.” (supra at 239.) As to the first of those three conclusions, it is necessary to turn to Section 1 of the Act. It states, in pertinent part, that “inequality of bargaining power between employees” and employers “substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depres- sions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.” In other words, conditions which led Congress to conclude that passage of the Act was warranted included, specifically, concern with the adverse affect upon commerce of wages and working conditions not only within a given industry but, also, in industry generally. Given those “FINDINGS” by Congress, it is difficult to conclude that, under the Act, employees of a particular employers, or of employers in a particular industry, can be viewed in isola- tion. To the contrary, to promote the flow of commerce, Congress believed it necessary to consider the entire em- ployment picture—as opposed to confining or isolating con- sideration of it to individual segments. Section 1 of the Act continues by declaring, inter alia, that it is “the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of com- merce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and proce- dure of collective bargaining.” That policy, of necessity, is a general one and at no point did Congress limit the scope of its reach. To promote the free flow of commerce, and to avoid or minimize business depressions, it is necessary eliminate uncompetitive “wage rates and working conditions within and between industries” and one vehicle for so doing is “encouraging the practice and procedure of collective bar- gaining[.]” Viewed from the perspective of Congress’ concern with the free flow of commerce and with its approach to eliminat- ing obstructions to it, under the Act organizing—even when directed to employees in firms within an industry other than the one where specific employees work and, moreover, even when directed to firms in industries other than the one in which particular employees may work—is an activity consis- tent with representation and, beyond that, is a necessary inci- dent of one means enunciated by Congress to promote the free flow of commerce. The Board’s conclusion concerning unit-by-unit evalua- tion of expenditures by labor organizations is consistent with Section 1 of the Act. So, too, is its conclusion that extra-unit expenses can be properly charged to nonmembers, so long as such expenditures have been made for representation pur- poses. In sum, viewing this issue from the perspective of the Act, itself, and of the Board’s application of it, organizing activities are properly allocable to collective bargaining, contract administration, and grievance adjustment under the Act. During the hearing, different experts testified in support of the opposing positions on this issue. It may well be that in different industries and in different geographic areas the extent of organization of the work force may or may not, in reality, support or refute the abstract proposition that wages, benefits and employment conditions of employees working for one employer are affected by those which prevail in the industry or area. Obviously, Congress thought that they did. Still, this is not exclusively an issue of reality. It is a common opinion—one which rises almost to the level of mantra in many quarters—that competitiveness of a unionized employer is affected adversely whenever that em- ployer’s competitors are not also unionized. That opinion is based upon the common sense view that those competitors possess latitude to reduce prices which a unionized employer does not possess. Rarely is that opinion supported by objec- tive analysis conducted or studied by employers who espouse it. Nevertheless, it is an opinion held firmly and has led to two consequences. First, it is the basis for objections by a unionized employer whenever its employees’ bargaining agent makes demands for increased wages and benefits and, in many instances, for improved working conditions. In other words, it becomes a means for employer resistance to correcting the sometimes depressed “wage rates and the purchasing power of wage DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 758 earners” which Congress sought, in part, to correct through allowing employees to organize and become represented. If organizing is not encompassed as a representation activity under the Act, then such a conclusion undermines the Con- gress’ stated means for correcting ills which it concluded had ultimately been undermining the free flow of commerce. Second, it is not uncommon for particular employers to re- taliate against their employees in an effort to defeat the ef- forts of those employees to become represented, or to retain representation already achieved, so that those employers will not be faced with a situation where they are left with re- stricted latitude to lower prices to meet those of nonunion- ized competitors. Obviously, such conduct violates the Act. Still, it occurs. When it does, it creates industrial strife, dis- rupts the earnings of employees who become targets of unlawful actions, and necessitates expenditure of public re- sources to remedy such situations. As a result, situations outside the immediate employment relationship of employees can affect their own representation and, not infrequently, their continued employment. In view of the foregoing considerations, I conclude that organizing activities are a necessary incident of collective bargaining and of contract administration. Such activities are representational and the duty of fair representation is not breached whenever labor organizations charge nonmembers for the expenses of organizing activities. I conclude that, by allocating organizing expenditures as chargeable to non- members, Local 7 and Local 951 did not violate the Act. CONCLUSION OF LAW United Food and Commercial Workers Local 951 is a la- bor organization which has committed unfair labor practices affecting commerce, in violation of Section 8(b)(1)(A) of the Act, by continuing to charge and collect full membership dues from employees who have objected to continuing to pay dues and fees in amounts allocated to activities other than collective bargaining, contract administration, and grievance adjustment; by failing to disclose to objecting nonmembers all expenditures which it has made; by failing to disclose to objecting nonmembers allocations between representation and nonrepresentation expenditures have been made by United Food and Commercial Workers International Union, AFL–CIO, CLC, in light of remissions to it by Local 951 of amounts for nonmembers which are equivalent to per capita taxes remitted for members; by collecting fees and retaining previously collected fees from objecting nonmembers which are allocable to lobbying expenses; by requiring objecting nonmembers to exhaust remedies provided by Local 951’s Service Rebate Procedure for challenging dues reduction “prior to seeking judicial review of any issue capable of resolution under [that] procedure”; and, by filing an Applica- tion for Order Confirming an Arbitration Award against nonmembers with the United States District Court for the Western District of Michigan to confirm an arbitration award which endorsed Local 951’s breaches of its duty of fair rep- resentation. United Food and Commercial Workers Local 1036 is a la- bor organization which has committed unfair labor practices affecting commerce, in violation of Section 8(b)(1)(A) of the Act, by informing employees that, as a condition of contin- ued employment, those employees must become members of Local 1036, without also informing employees that they have the right to not submit membership applications and to not perform any obligations of union membership other than the tender of periodic dues and initiation uniformly required as a condition of acquiring or retaining membership in Local 1036 and, further, without informing employees of their Beck rights; by continuing to demand that objecting nonmembers continue to pay full membership dues and by continuing to collect and retain those payments; by failing to provide ob- jecting nonmembers with information concerning the amounts of dues reductions, the basis for those calculations and a right to challenge those figures; and, by threatening have discharged employees who fail to continue submitting full membership dues, even though those nonmembers have objected to doing so. However, Local 1036 has not violated the Act in any other manner alleged in the second consoli- dated amended complaint, as further amended. United Food and Commercial Workers Local 7 has not violated the Act by collecting from objecting nonmembers and retaining amounts which are allocated to expenses of organizing activities. THE REMEDY Having concluded that United Food and Commercial Workers Local 951 and United Food and Commercial Work- ers Local 1036 engaged in unfair labor practices, I shall or- der that each of them be ordered to cease and desist there- from and, further, that each of them be ordered to take cer- tain affirmative action to effectuate the policies of the Act. With respect to the latter, United Food and Commercial Workers Local 951 shall be ordered to refund with interest to Phillip G. Mulder, Charles Buck, Leon Gibbons, and all other objecting nonmembers, California Saw, supra, 320 NLRB at 254, all fees collected from them and still retained which are not shown by Local 951 to be allocable to repre- sentation activities. Amounts refunded shall include all fees allocated to lobbying and, as well, amounts remitted on be- half of those objecting nonmembers to United Food and Commercial Workers International Union, AFL–CIO, CLC, except to the extent that Local 951 shows that those remis- sions were allocable for representation activities by Interna- tional. Local 951 shall be further ordered to reimburse with interest Mulder, Buck, and Gibbons for any expenses per- sonally incurred by any of them for defending the application to confirm arbitration award filed against them on July 24, 1991, in the United States District Court for the Western District of Michigan. Finally, it shall be ordered to remove from its Service Rebate Procedure the requirement that “Any objecting non-member must exhaust the remedies provided by this procedure prior to seeking judicial review of any issues capable of resolution under this procedure,” and, fur- ther, to distribute to all objecting nonmembers copies of the Service Rebate Procedure with that portion deleted. Because it failed altogether to notify employees of their right to remain nonmembers and of their Beck rights, United Food and Commercial Workers Local 1036 shall be affirma- tively ordered to notify Glenn T. Hilton, John B. Nosek, and all other employees who are employed since September 21, 1988, in the multiemployer bargaining unit covered by Local 1036’s collective-bargaining contracts with Food Employers Council, Inc. of the right of each of those employees to not file membership applications and to not perform any obliga- tion of union membership other than the tender of periodic FOOD & COMMERCIAL WORKERS LOCALS 951, 7, & 1036 (MEIJER, INC.) 759 dues and initiation fees uniformly required as a condition of acquiring or retaining membership in Local 1036 and, fur- ther, of the Beck rights of those employees. Furthermore, it shall be ordered to refund with interest to Hilton, Nosek, and other objecting nonmembers that portion of dues or fees which were collected from them on and after September 18, 1988, following the objection of each, and which were allo- cated to activities of Local 1036 other than collective bar- gaining, contract administration and grievance adjustment. Finally, in addition to the usual notice posting requirements, Local 1036 shall be ordered to mail at its own expense cop- ies of the notice to all employees employed in the multiem- ployer bargaining unit by members of Food Employers Council, Inc. and, as well, to any other employees who re- ceived “welcoming” letters, since September 21, 1988, to the last known address of each employee or, if the General Counsel’s office directs, to addresses supplied to Local 1036 by the General Counsel during the compliance phase of this proceeding. [Recommended Order is omitted from publication.]