United Nurses & Allied Professionals (Kent Hospital)

UNITED NURSES AND ALLIED PROFESSIONALS (KENT HOSPITAL) 469 359 NLRB No. 42 United Nurses and Allied Professionals (Kent Hospi- tal) and Jeanette Geary. Case 01–CB–011135 December 14, 2012 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HAYES, GRIFFIN, AND BLOCK This case presents several novel issues arising from the Supreme Court’s decision in Communications Workers v. Beck.1 The first issue is whether the Respondent Union violated the Act by failing to provide Charging Party Jeanette Geary, a nonmember objector, with an audit verification letter. We adhere to precedent and find that it did not. The remaining issues concern whether the Union unlawfully charged the Charging Party for expenses the Union incurred while lobbying for bills pending in the Rhode Island and Vermont legislatures. We hold that, like all other union expenses, lobbying expenses are chargeable to objectors to the extent that they are ger- mane to collective bargaining, contract administration, or grievance adjustment. We further hold that otherwise germane lobbying activities are chargeable even if they are extra unit, provided, that the expenses are reciprocal in nature, i.e., that the contributing local reasonably ex- pects other locals to contribute similarly on its behalf. However, because we have never substantively addressed the extent to which lobbying expenses are germane for the purposes of chargeability, we invite briefing to pro- vide the parties and amici an opportunity to assist us in giving content to the framework set forth herein.2 I. BACKGROUND The Employer is a private acute care hospital in War- wick, Rhode Island. Since November 2008, the Re- spondent Union, United Nurses and Allied Professionals 1 487 U.S. 735 (1988). There, the Court held that the Act does not privilege a collective-bargaining representative, over the objection of nonmember employees it represents, to expend funds collected from those employees under a union-security agreement on activities unre- lated to collective bargaining, contract administration, and grievance adjustment. Id. at 745. 2 On March 30, 2011, Administrative Law Judge Joel P. Biblowitz issued the attached decision. The Acting General Counsel and the Charging Party each filed exceptions and supporting briefs, the Re- spondent Union filed an answering brief and the Charging Party filed a reply brief. The Respondent Union filed exceptions and the Charging Party filed an answering brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Deci- sion and Order. The Charging Party moves for disqualification of Members Block and Griffin from ruling in this proceeding on the ground that their recess appointments to the Board by the President were invalid. For the reasons set forth in Center for Social Change, Inc., 358 NLRB 161 (2012), the motion is denied. (UNAP), has been the exclusive bargaining representa- tive of the Employer’s full-time, part-time, and per diem registered nurses (over 600 at the time of the hearing). In July 2009, the Union and the Employer entered into a collective-bargaining agreement, effective through June 2011, that included a union-security provision. The pro- vision required all new unit members to join the Union by their 30th day of employment. II. AUDIT VERIFICATION LETTER A. Facts In late September 2009, Jeannette Geary and several other unit employees resigned their membership in the Union and, citing Beck, objected to the assessment of dues and fees for activities unrelated to collective bar- gaining, contract administration, or grievance adjust- ment. By letter dated September 30, 2009, the Union provided the objectors with their reduced fee amounts, as well as several charts setting forth the major categories of expenses for the UNAP international and the Kent Hos- pital local. The Union’s letter asserted that “[t]he major categories of expense have been verified by a certified public accountant.” The judge implicitly credited testi- mony by Richard Brooks, executive director of the Un- ion, that the Union’s accounts had been examined and verified by an independent auditor, and that the financial figures presented to the objectors were culled from the auditor’s report. Brooks testified that a verification letter from the auditor had accompanied the report, but that the Union did not provide the letter to objectors because it was not required to do so by law. The Acting General Counsel alleged that the Union vi- olated Section 8(b)(1)(A) by “fail[ing] to provide Geary and other similarly situated employees with evidence beyond a mere assertion that the financial data [enclosed with the letter] was based on an independently verified audit.” In his opening statement, counsel for the Acting General Counsel clarified that the allegation concerned the Union’s failure to provide a copy of the accountant’s audit verification letter to objectors along with the finan- cial information. He acknowledged that the Board had never previously required the production of an audit veri- fication letter, but made clear that he was seeking to es- tablish a new requirement. He confirmed repeatedly dur- ing the hearing that his allegation did not go to the accu- racy of the figures that the Union provided, or to whether an audit was actually performed, but only to the Union’s failure to provide a separate verification letter from the accountant. The judge found that the Union did not violate the Act. Although he acknowledged that the Ninth Circuit in 470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cummings v. Connell3 had imposed a similar audit veri- fication letter requirement, he noted that the Board had never ruled on the issue, and that Cummings was a pub- lic-sector employee case. The Acting General Counsel and Charging Party except to the judge’s dismissal. The absence of such a letter, they argue, created uncertainty for the objectors as to whether the Union’s claimed ex- penses were actually incurred, and thereby prevented the objectors from making an informed decision about whether to challenge the Union’s chargeability calcula- tions.4 B. Legal Landscape In California Saw & Knife Works,5 the Board’s 1995 seminal decision on the procedural and substantive issues arising under the Supreme Court’s decision in Communi- cations Workers v. Beck,6 the Board held that once an employee objects to paying dues for nonrepresentational activities and seeks a reduction in fees, she must be ap- prised of the percentage of the reduction, the basis for the calculation, and the right to challenge the union’s figures. To ascertain whether the information provided to objec- tors satisfied the union’s duty of fair representation, the Board stated that it would assess whether the information 3 316 F.3d 886 (9th Cir. 2003). 4 Throughout the hearing, and in his exceptions brief, counsel for the Charging Party expressed repeatedly his dissatisfaction with the Acting General Counsel’s theory of the case, arguing that the financial infor- mation that the Union provided had not been audited and was not accu- rate. In support of this allegation, counsel for the Charging Party sought to adduce extensive evidence that was beyond the scope of the com- plaint, including: (1) in a subpoena duces tecum, 26 documents relating to the Union’s communications with outside accountants, and the calcu- lation of specific expenses set forth in the Union’s disclosure to objec- tors; and (2) expert testimony from a certified public accountant regard- ing proper accounting procedures. The judge granted the Union’s peti- tion to revoke the subpoena and sustained the Union’s objection to the expert testimony, reasoning that the evidence would not have been relevant to the complaint. The judge also sustained the Union’s objec- tion to testimony by several Beck objectors who were presented by the Charging Party to discuss their “real-life experiences.” In so doing, the judge emphasized that the complaint raised a purely legal issue and that the proffered testimony would not help him resolve it. The Charging Party now contends that she was unduly prejudiced by the judge’s decision to exclude this evidence. We disagree. A charging party can- not enlarge upon or change the General Counsel’s theory of the com- plaint. See Penntech Papers, 263 NLRB 264, 265 (1982). The judge correctly found that the proffered evidence was simply not relevant to the complaint. (Notably, counsel for the Acting General Counsel agreed.) Similarly, we decline to consider arguments in the Charging Party’s brief that are inconsistent with the Acting General Counsel’s theory of the case as set forth in the complaint. 5 320 NLRB 224, 233 (1995), enf. sub nom. Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. denied mem. sub nom. Strang v. NLRB, 525 U.S. 813 (1998). 6 487 U.S. 735 (1988). was sufficient to enable objectors to determine whether to challenge the union’s dues-reduction calculations.7 In 1999, the Board in Television Artists AFTRA (KGW Radio)8 found that a union did not satisfy this standard where it failed to have its expenditure information veri- fied by an independent audit.9 Specifically, the Board held that the union was required to have an accountant confirm the reliability of its expenditures through proce- dures such as gathering information from outside entities and testing selected information.10 Not presented in KGW Radio was the issue whether the union was also required to provide objectors with a letter from an accountant ver- ifying that an audit had been conducted. The Ninth Circuit, in its 2003 decision in Cummings, supra, held that a public-sector union was required to provide objectors with an independent verification that an audit had been performed. There, the union provided objectors with a breakdown of its major categories of expenditures, and informed them that the figures were taken from an independent audit that had been prepared by a certified public accounting firm.11 Applying Chica- go Teachers Union Local 1 v. Hudson,12 another public- sector employee case, the court held that the information provided was not adequate to assure objectors that the expenditures cited had been independently verified.13 In so finding, the Cummings court observed that the union’s disclosure “essentially required the [objectors] either to accept that the expenditures were indeed audited or to go through the trouble of requesting a copy of the audit re- port to verify the Union’s summary.”14 Although the court did not require the union to provide objectors with a full copy of the underlying audit, it held that the un- ion’s expenditure information should “include certifica- tion from the independent auditor that the summarized figures have indeed been audited and have been correctly reproduced from the audited report.”15 7 320 NLRB at 239. 8 327 NLRB 474 (1999), petition for review dismissed 1999 WL 325508 (D.C. Cir. 1999). 9 Id. at 477. Alternatively, the Board found dues-reduction infor- mation provided by a local union to a charging party could be based on a “local presumption,” which permits a local union to presume that its allocation of chargeable and nonchargeable expenses is the same as that of its international affiliate. Id. at 477. Here, because the Union did not rely on a local presumption, it is appropriate to analyze the sufficiency of the Union’s disclosure of its allocations under California Saw. Id. at 477 fn. 15. 10 Id. at 476–477. 11 Id. at 889–890. 12 475 U.S. 292 (1986). 13 Cummings, 316 F.3d at 890–891. 14 Id. at 891. 15 Id. at 892. See also Wessel v. City of Albuquerque, 299 F.3d 1186, 1193–1194 (10th Cir. 2002) (public-sector case in which the court held UNITED NURSES AND ALLIED PROFESSIONALS (KENT HOSPITAL) 471 C. Analysis Contrary to the Acting General Counsel’s request, we decline to incorporate into Board law a requirement simi- lar to the one imposed in Cummings. Unlike cases in- volving public-sector unions, such as Hudson and Cum- mings, in which unions’ conduct is evaluated under a heightened First Amendment standard, the Union’s con- duct here is properly analyzed under the duty of fair rep- resentation.16 A union violates its duty of fair representa- tion only if its actions are “arbitrary, discriminatory, or in bad faith,”17 and its actions are considered arbitrary “only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far out- side a ‘wide range of reasonableness’ as to be irration- al.”18 Although not disputing the standard for evaluating the conduct of unions toward objectors, the Acting General Counsel and the Charging Party in essence assert that, without an audit verification letter, the objectors lacked an unequivocal assurance that the Union’s claimed ex- penses were incurred.19 But the Board has long endeav- ored in this area of the law to achieve a “careful balance between the competing interests involved,” rather than promote the unqualified interests of the individual or the union.20 In our view, the Board’s current approach strikes the appropriate balance. Additionally, we find that the Union acted reasonably by promptly providing the objectors with its major cate- that a union was required to provide objectors with “a report expressing the auditor’s opinion on the schedule”). 16 California Saw, 320 NLRB at 230, 240–241; Machinists Local 2777 (L-3 Communications), 355 NLRB 1062, 1063 (2010); see Office Employees Local 29 (Dameron Hospital Assn.), 331 NLRB 48, 48 fn. 1 (2000). 17 Vaca v. Sipes, 386 U.S. 171, 190 (1987). 18 Air Line Pilots Ass’n v. O’Neill, 499 U.S. 66, 67 (1991) (citation omitted) (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)). As the Board stated in California Saw, supra, “the procedures required to protect the constitutional rights of objectors in the public sector, including those defined and elaborated on in Hudson . . . were not formulated to comport with a union’s obligations under Beck to represent its employees fairly.” 320 NLRB at 240–241. Even accepting Hudson’s applicability, we disagree with the Ninth Circuit’s suggestion that the Supreme Court’s holding would require the production of an audit verification letter. The Court in Hudson, supra, stated that “adequate disclosure surely would include the major categories of expenses, as well as verification by an independent audi- tor.” 475 U.S. at 307 fn. 18. What the Acting General Counsel seeks here, however, is verification of a verification, namely written proof that an audit occurred. There is simply nothing in Hudson to suggest that a union would be required to provide anything more to objectors than its major categories of expenditures. 19 This amounts to a suggestion that the Union should be presumed to be lying about the verification of its expenses. We decline to so presume. 20 California Saw, 320 NLRB at 230. gories of expenditures, along with an assurance that the figures were independently verified. Significantly, the Acting General Counsel does not allege that the Union failed to have the information audited, or that its audit did not comport with the requirements set forth in KGW Radio. Under these circumstances, we find that the Un- ion acted well within the “wide range of reasonableness” permitted it under the fair representation standard. Ab- sent an allegation that the Union has failed to comply with KGW Radio’s audit requirement, we need not ad- dress whether, in other circumstances, a union might be required to produce an audit verification letter.21 The only question before us here is whether the duty of fair representation imposes a per se obligation on unions to provide objectors with an audit verification letter. We find that it does not. Finally, the Charging Party, in her exceptions brief, ar- gues that requiring the Union to provide an audit verifi- cation letter would prevent the Union “from blurring the lines between chargeable and non-chargeable expenses.” This assertion confuses the issue. As the Board stated in KGW Radio, supra, “the function of the auditor is to veri- fy that the expenditures that the union claims it made were in fact made for the purposes claimed, not to pass on the correctness of the union’s allocation of expendi- tures to the chargeable and nonchargeable categories.”22 The Charging Party’s assertion goes not to the veracity of the underlying expenditure figures, but to the Union’s chargeability designations, which are properly contested via the Union’s challenge procedure. An audit verifica- tion letter would not provide objectors with any new or useful information regarding chargeability. For all of these reasons, we find that the Union did not violate the Act by failing to provide objectors with an audit verification letter. 21 Cf. Food & Commercial Workers Local 4 (Safeway, Inc.), 355 NLRB 634 (2010) (incorporating by reference 353 NLRB 469 (2008)) (finding that the union violated Sec. 8(b)(1)(A) by failing to sufficiently verify its expenditure information), enf. denied and order vacated and remanded No. 10–72655 (unpublished) (9th Cir. 2011). The dissent mistakenly asserts that the Board’s holding in Safeway somehow sug- gested that a union is required to provide an audit verification letter to objectors. There, the only issue before the Board was whether the fi- nancial information the union provided the objector had been suffi- ciently verified. The issue of whether the union was required to provide an audit verification letter to the objector was not presented in that case, and at no point in its decision did the Board state or even imply that such a requirement would be appropriate under the duty of fair repre- sentation. 22 Id. at 477 (citing California Saw, 320 NLRB at 241). 472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD III. CHARGEABILITY OF LOBBYING EXPENSES A. Facts UNAP comprises 15 local unions in Rhode Island, Vermont, and Connecticut. The locals range in size from 2269 unit employees at the Rhode Island Hospital to 5 registered nurses at the Putnam Board of Education in Connecticut. Members of each local pay monthly dues, a portion of which is remitted to UNAP as per capita pay- ments. UNAP deposits the per capita payments into its general operating fund, which it uses to pay for programs and services it undertakes for all of the locals. UNAP acts on behalf of the locals in all representational matters, including contract negotiations, grievance processing, and arbitrations. The degree to which each local benefits from UNAP’s services is not necessarily proportional to the amount it pays into the fund. A small local, for in- stance, that pays relatively little into the fund may re- ceive services that exceed the value of its contributions in any given year. Executive Director Brooks testified that UNAP adopted this arrangement, in part, because its locals “vary greatly in size and none of them would be in a position to[,] on their own, fund the array of supports and services that they receive [from] the UNAP by pool- ing their resources.” In 2009, UNAP used money from its general operating fund to subsidize lobbying efforts for various bills that were before the Rhode Island and Vermont State legisla- tures. Brooks testified that he spent approximately 33 hours lobbying for bills in Rhode Island. The Union also indicated that from July 1, 2008, through June 30, 2009, it spent $22,650 lobbying for bills in Vermont, $21,970 of which it deemed chargeable to objectors. The Acting General Counsel alleged that the Union vi- olated Section 8(b)(1)(A) by charging objectors dues that it used to fund lobbying, which the Acting General Counsel categorized as nonrepresentational activity. Spe- cifically, he contested the chargeability of lobbying ex- penses related to the following seven bills: (1) The Hospital Merger and Accountability Act (Rhode Island): This bill, among other things, would have empowered a state government council to monitor and regulate hospitals that own more than 50 percent of hospital beds in the state. (2) Public Officers and Employees Retirement bill (Rhode Island): This bill would have raised the cap on post-retirement earnings that former State-employed reg- istered nurses could earn without reducing their retire- ment benefits. (3) Hospital Payments bill (Rhode Island): This bill, among other things, would have provided all acute care hospitals in Kent County (home of Kent Hospital) with $800,000 in funding. (4) Center for Health Professions bill (Rhode Island): This bill would have created a center tasked with devel- oping a sufficient, diverse, and well-trained healthcare work force in the state. (5) Safe Patient Handling bill (Vermont): This bill would have required hospitals to establish a safe patient handling program, which would entail, among other things, establishing rules to protect nurses and purchas- ing new equipment to improve patient-handling proce- dures. (6) Mandatory Overtime bill (Vermont): This bill, among other things, would have prohibited hospitals from requiring any employee to work more than 40 hours a week. (7) Mental Health Care Funding bill (Vermont): This bill would have provided additional funding for mental healthcare services at three facilities at which the Union has bargaining units. B. The Judge’s Decision The judge found, with relatively brief analysis, that the Union violated the Act by charging objectors for lobby- ing expenses related to the Public Officers and Employ- ees Retirement bill (2), above; the Center for Health Pro- fessions Act (4); the Safe Patient Handling Act (5); and the Mandatory Overtime Act (6). In so finding, he rea- soned that the Union’s support for these bills, although well intentioned, was not germane to its bargaining obli- gations. The Union excepts to these findings. The judge dismissed the allegations regarding the Un- ion’s lobbying for the three other bills: the Hospital Mer- ger and Accountability Act (1); the Hospital Payments Act (3); and the Mental Health Care Funding Act (7). He reasoned that the Hospital Merger and Accountability Act would have given the Union some say in whether hospitals in the State could merge, which would have an effect on its bargaining strength. And he found that both the Hospital Payments Act and the Mental Health Care Funding Act would have provided additional funding to facilities where UNAP represented employees. Accord- ingly, he found that the Union lawfully charged objectors for those expenses. The Acting General Counsel and the Charging Party except to these findings. C. Issues before the Board These allegations raise two fundamental questions: (1) What is the appropriate standard for assessing whether lobbying expenses are germane for purposes of chargea- bility? and (2) Under what circumstances can objectors be charged for extra-unit lobbying expenses? The Charging Party argues that, under the Supreme Court’s decision in Beck, lobbying expenses incurred by private sector unions are per se nonchargeable. In her view, UNITED NURSES AND ALLIED PROFESSIONALS (KENT HOSPITAL) 473 Court precedent requires an outright prohibition against charging objectors for any activities that are political or ideological in nature. Because lobbying expenses can never be chargeable, the Charging Party contends, the question of extra-unit expenses is irrelevant in this case. The Acting General Counsel, citing the Supreme Court’s plurality opinion in Lehnert v. Ferris Faculty,23 a public-sector employee case, contends that lobbying ex- penses are only chargeable if oriented toward the ratifica- tion or implementation of a collective-bargaining agree- ment.24 Finally, the Union argues that, like other union ex- penses, lobbying expenses may be chargeable if they are germane to its representational functions. Citing the Su- preme Court’s decision in Locke v. Karass,25 it also con- tends that objectors may be charged for extra-unit lobby- ing expenses, including those incurred on behalf of out- of-state units, where all of the locals contribute to the national’s general fund and benefit from a reciprocity arrangement. D. Key Principles Although the Board has never specifically addressed chargeability in a case involving lobbying expenses, we do not write on a blank slate.26 In Beck, the Supreme Court held that the first proviso to Section 8(a)(3) of the Act does not privilege a collective-bargaining representa- tive, over the objection of nonmember employees, to 23 500 U.S. 507 (1991). 24 Id. at 520. 25 555 U.S. 207, 210 (2009). 26 We note that the parties and the judge largely failed to address rel- evant case law. Contrary to the judge, we find Fell v. Independent Assn. of Continental Pilots, 26 F.Supp.2d 1272 (1998), to be inapplicable. In that Railway Labor Act (RLA) case, a district court held that a union lawfully charged objectors for expenses related to the union’s merger with another union in anticipation of a possible airline merger. Unlike here, those expenses were directly related to the union’s internal admin- istrative functions. In addition, we reject the Union’s reliance on Transport Workers Local 525 (Johnson Controls World Services), 329 NLRB 543 (1999), for the broad proposition that the Board has already established that lobbying expenses are chargeable. There, the Board held that expenses incurred by a union in representing its unit members before Federal agencies were chargeable to objectors. Significantly, the union repre- sented employees of a private sector employer that performed service contracts with governmental agencies. The Board found that the Feder- al Government, through its contractual relationship with the employer, played a unique role in setting terms and conditions of employment for unit employees. Thus, the union’s dealings with government officials on issues such as hours and job security resembled traditional represen- tational activities. We rely on that case for the general principle that chargeable expenses need not be incurred within the narrow confines of a union-employer relationship, and we find the case instructive on the chargeability of lobbying activities that directly advance the union’s representative role. Nonetheless, the case is not dispositive of the chargeability of legislative lobbying generally. expend funds collected from the employees under a un- ion-security agreement on activities unrelated to collec- tive bargaining, contract administration, and grievance adjustment.27 As the Court has explained more fully, objecting employees may be compelled to pay their fair share of not only the direct costs of negotiating and ad- ministering a collective-bargaining contract and of set- tling grievances and disputes, but also the expenses of activities or undertakings normally or reasonably em- ployed to implement or effectuate the duties of the union as exclusive representative of the employees in the bar- gaining unit.28 Applying these principles, the Board and the Supreme Court have found a wide range of union activities to be chargeable to objectors, including certain litigation29 and organizing expenses,30 as well as expenses for conven- tions, social activities, and publications.31 For expenses that are attributable to activities outside the objector’s bargaining unit, the Board has held, consistent with Court precedent, that, in order to be chargeable, the charges must be incurred for “services that may ultimate- ly inure to the benefit of the members of the local union by virtue of their membership in the parent organiza- tion.”32 In so holding, the Board noted that it does not require “a direct relationship between the expense at is- sue and some tangible benefit to the dissenter’s bargain- ing unit.”33 A unanimous Court affirmed this principle recently in Locke, in which it held that a public-sector union could lawfully charge objectors for extra-unit liti- gation expenses.34 The Court observed that “a local non- member [can] benefit from national litigation aimed at helping other units if the national or those other units will similarly contribute to the cost of litigation on the local union’s behalf should the need arise.”35 Because the local union paid an affiliation fee that gave it general access to the national’s financial resources, the Court concluded that objectors could be charged for national litigation expenses.36 27 487 U.S. at 752–754. See California Saw, 320 NLRB at 239. 28 Ellis v. Railway Clerks, 466 U.S. 435, 448 (1984). 29 Id. at 453; California Saw, 320 NLRB at 237–239. 30 See Food & Commercial Workers Locals 951, 7, & 1036 (Meijer, Inc.), 329 NLRB 730, 733 (1999), enf. denied in relevant part sub nom. Food & Commercial Workers v. NLRB, 284 F.3d 1099 (9th Cir. 2002), modified and superseded 307 F.3d 760 (2002). 31 Ellis, 466 U.S. 435, 448–451. 32 California Saw, 320 NLRB at 239 (quoting Lehnert, 500 U.S. at 524). 33 Id. at 237 fn. 66 (quoting Pilots Against Illegal Dues v. Air Line Pilots Assn., 938 F.2d 1123, 1127–1128 (10th Cir.1991)). 34 555 U.S. at 218. 35 Id. 36 Id. at 219–220. 474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Finally, and contrary to our dissenting colleague’s con- tention, we emphasize that although RLA cases and pub- lic sector cases may provide limited guidance on what types of lobbying may be chargeable to objectors under the Act, neither category of cases is determinative. As the Board explained at length in California Saw, public sector and RLA cases both implicate State action and are therefore subject to constitutional scrutiny.37 In contrast, private sector union-security clauses pursuant to the Act do not involve State action implicating constitutional considerations.38 Accordingly, the Board found the less stringent duty of fair representation applies to chargeabil- ity issues under the Act.39 The RLA and public sector cases in effect establish a floor, rather than a ceiling, on chargeable expenses under the Act: any expense that is chargeable under the more stringent constitutional stand- ard is chargeable under the less stringent duty of fair rep- resentation standard; however, not every expense that is nonchargeable under the more stringent standard is like- wise nonchargeable under the less stringent standard. E. Analysis Next, we apply these principles to answer the two questions before us: (1) What is the appropriate standard for assessing whether lobbying expenses are germane for the purposes of chargeability? and (2) Under what cir- cumstances can objectors be charged for extra-unit lob- bying expenses? 1. Chargeability First, consistent with Beck and existing Board prece- dent, we hold that lobbying expenses are chargeable to objectors if they are germane to collective bargaining, contract administration, or grievance adjustment. Thus, we will carry out a “case-by-case analysis”40 to deter- mine whether expenses incurred toward securing a spe- cific legislative goal are sufficiently related to the un- ion’s core representational functions. The approach that the Board and the Supreme Court have used in evaluating litigation expenses is particularly 37 320 NLRB at 226–228. 38 Id. at 228. 39 Id. 40 California Saw, 320 NLRB at 238. The Acting General Counsel points out that the California Saw Board, in finding extra-unit litigation to be chargeable, stated that “[t]he kinds of extra-unit litigation that we contemplate as being properly chargeable to objectors under a union- security clause would not be the kinds of lawsuits that are ‘akin to lobbying.’” Id. at 238, quoting Lehnert, 500 U.S. at 528. He argues that this was an implicit acknowledgement that lobbying expenses are not chargeable. We disagree. In the context of the decision, the Board was merely explaining why Lehnert’s Constitution-based restrictions on charging litigation expenses were not applicable under the Act. Lobby- ing was not before the Board at that time and the decision includes no substantive discussion of that issue. instructive here. In California Saw, the Board found liti- gation expenses to be chargeable “as long as the catego- ries of litigation charged to objecting employees are re- lated to the union’s basic representational functions.”41 Rather than creating a per se rule, the Board acknowl- edged that the chargeability of litigation expenses is con- tingent on the substantive character of the litigation being pursued. The Supreme Court has taken a similar ap- proach, holding that [t]he expenses of litigation incident to negotiating and administering the contract or to settling grievances and disputes arising in the bargaining unit are clearly chargeable to petitioners as a normal incident of the du- ties of the exclusive representative. The same is true of . . . any other litigation before agencies or in the courts that concerns bargaining unit employees and is normal- ly conducted by the exclusive representative.42 Lobbying, like litigation, is a means rather than an end–—a strategic activity that a union undertakes to advance the interests of its members. When a union engages in lobbying activity, it seeks to influence legislators to pass legislation. The question of whether such activity is representative in nature necessarily turns on the legislative goals that the lob- bying is used to pursue. Thus, as in all other chargeability cases, we will ask whether the union’s lobbying expenses are germane to collective bargaining, contract administra- tion, or grievance adjustment. The Charging Party contends that the Supreme Court’s decision in Beck created an outright prohibition on charg- ing objectors for any expenses related to the political process. Specifically, the Beck Court stated that the Railway Labor Act section 2, Eleventh, which it found to be the statutory equivalent of Section 8(a)(3), did not permit unions “to expend compelled agency fees on po- litical causes.”43 But that was hardly the Court’s final word on the sub- ject. Indeed, 3 years later, the Court expressly acknowl- edged that some political expenses are in fact chargeable. In Lehnert, a plurality of the Court recognized that “[t]o represent their members effectively . . . public-sector unions must necessarily concern themselves not only with negotiations at the bargaining table but also with advancing their members’ interests in legislative and other ‘political’ arenas.”44 To this end, the Court rea- soned that 41 320 NLRB at 239. 42 Ellis, 466 U.S. at 453. 43 487 U.S. at 745, citing Machinists v. Street, 367 U.S. 740 (1961). 44 500 U.S. at 520, quoting Lehnert v. Ferris Faculty Assn., 881 F.2d 1388, 1392 (6th Cir. 1989). UNITED NURSES AND ALLIED PROFESSIONALS (KENT HOSPITAL) 475 [p]ublic-sector unions often expend considerable re- sources in securing ratification of negotiated agree- ments by the proper state or local legislative body . . . . Similarly, union efforts to acquire appropriations for approved collective-bargaining agreements often serve as an indispensable prerequisite to their implementa- tion.45 This principle applies to representation of employees in the private sector as well. As the Court has recognized, “labor’s cause often is advanced on fronts other than collective bargaining and grievance settlement within the immediate employment context.”46 Legislative proposals involving core employee concerns such as wages, hours, and working conditions all clearly raise issues that relate to a union’s most essential representative functions.47 And even outside the public sector, legislative action can substantially alter the context in which collective bar- gaining takes place. Here, for instance, Kent Hospital, a private employer, relies on public funding that is allocat- ed by the Rhode Island State legislature. Contrary to the Charging Party’s characterization, political expenses and representational expenses are not mutually exclusive. The Beck Court’s formulation of chargeability sup- ports this approach. Significantly, the Court did not de- fine chargeability to exclude all union expenses that are political or ideological in nature. Instead, the Court spe- cifically interpreted chargeable expenses as those “ger- mane to collective bargaining, contract administration, and grievance adjustment.”48 This standard places the focus squarely on a union’s representative duties rather than other secondary concerns. We reject the Charging Party’s contention that such a reading of Beck improperly gives a union carte blanche to charge objectors for any 45 Id. 46 Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). See also Bethle- hem Shipbuilding Corp. Limited v. NLRB, 114 F.2d 930 (1st Cir. 1940) (“But the right of employees to self-organization, and to engage in concerted activities, now guaranteed by Section 7 of the National Labor Relations Act, is not limited to direct collective bargaining with the employer, but extends to other activities for ‘mutual aid or protection,’ including appearance of employee representatives before legislative committees.”). 47 The Eastex Court found that employees engaged in protected con- duct by distributing fliers in support of prounion legislation. In so do- ing, the Court explained that the “mutual aid or protection clause” of the Act protects employees from retaliation by their employers when they seek to improve working conditions through resort to administra- tive and judicial forums, and that employees’ appeals to legislators to protect their interests as employees are within the scope of this clause. To hold that activity of this nature is entirely unprotected—irrespective of location or the means employed—would leave employees open to retaliation for much legitimate activity that could improve their lot as employees. 437 U.S. at 565–567. 48 487 U.S. at 745. and all political expenses. Indeed, because chargeable expenses must be closely tethered to a union’s repre- sentative duties, a union may not lawfully charge objec- tors for purely partisan expenses. The Acting General Counsel contends that the Board is bound by the Lehnert plurality’s conclusion that charge- able lobbying expenses must be limited to those made in support of “the ratification or implementation of a dis- senter’s collective-bargaining agreement.”49 We disa- gree. In setting out this standard, the Lehnert plurality stated expressly that its primary consideration was the protection of objectors’ First Amendment interests.50 For the reasons set forth in California Saw and discussed above, such constitutional considerations are not relevant under the Board’s less stringent inquiry pursuant to the duty of fair representation.51 Thus, we do not read Lehnert as foreclosing our conclusion that a wider range of lobbying expenses may be chargeable.52 Moreover, to restrict chargeability to such a small subset of lobbying expenses would inevitably exclude many other activities that further the representational goals emphasized by the Court in Beck. The Lehnert Court also based its holding on the fact that “worker and union cannot be said to speak with one voice.”53 But an objector’s mere disagreement with a union’s decision to pursue its representational objectives via lobbying activity surely does not render the related expenses nonchargeable. Given the absence here of the First Amendment concerns that dominate in the public sector, an objection to the union engaging in lobbying is no different from disagreeing with the union over any strategic representational action, e.g., filing a lawsuit or taking a grievance to arbitration. The fact that the activity occurs within the political sphere does not change our core analysis. So long as lobbying is used to pursue goals that are germane to collective bargaining, contract ad- ministration, or grievance adjustment, it is chargeable to objectors. 2. Extra-unit expenses Next, we address the chargeability of extra-unit lobby- ing expenses. This issue is before us because the Union 49 500 U.S. at 520. 50 Id. at 521. 51 320 NLRB at 240-241. 52 For the same reasons, Miller v. Air Line Pilots Assn., 108 F.3d 1415 (D.C. Cir. 1997), is inapplicable here. In holding that a union’s advocacy-related expenses were not chargeable to objectors under the RLA, the court made clear that its central consideration was the protec- tion of the objectors’ constitutional interests. Id. at 1422. Thus, contrary to the dissent, we reject the notion that the court’s holding in Miller carries controlling weight under our duty of fair representation analysis. 53 500 U.S. at 521. 476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD here lobbied for three bills in Vermont which, by the Union’s admission, would not provide a direct benefit to members of the Kent Hospital unit in Rhode Island. Con- sistent with precedent, we hold that a union may charge objectors for extra-unit lobbying expenses as long as they are “for services that may ultimately inure to the benefit of members of the local union by virtue of their member- ship in the parent organization.”54 In so holding, we em- phasize that a union can make this showing where the charge was reciprocal in nature, i.e., where “the contrib- uting local reasonably expects other locals to contribute similarly to the [parent union’s] resources used for costs of similar [activity] on behalf of the contributing local if and when it takes place.”55 In our view, this formulation best accounts for “the unified-membership structure under which many unions . . . operate.”56 When a local union pools its resources with other locals into a national, intermediate, or regional fund, it enters into an arrangement that is “akin to insur- ance.”57 Its primary benefit is the promise of protection: that the national union will use the pooled assets to “bring to bear its often considerable economic, political, and informational resources when the local is in need of them.”58 When the contributing local partially subsidizes a chargeable activity that more immediately benefits an- other local, it does so with the assurance that its own costs of the same type will be similarly subsidized by the other locals. In this way, “[i]t is indisputable that, by pooling its resources on a union-wide basis, a union, which is the bargaining representative of all its members, provides some benefit to members of the various local unions.”59 The Board has already acknowledged this principle in the context of extra-unit litigation by holding that such activity “may confer benefits on employees beyond those units immediately affected.”60 The same holds true for 54 California Saw, 320 NLRB at 239. 55 Locke, 555 U.S. at 210. 56 Id. at 216 (quoting Lehnert, 500 U.S. at 523). 57 Otto v. Pennsylvania State Education Assn.-NEA, 330 F.3d 125, 138 (3d Cir. 2003). The court explained further that the pooling ar- rangement confers potential benefits on the plaintiffs. First, the ar- rangement generates economies of scale that redound to their benefit. Second, by spreading the costs of otherwise-chargeable expenses over a pool of employees whose chargeable-expense levels are not perfectly correlated with their own . . . education professionals reduce their risk of being assessed unusually high chargeable expenses in any given year. Moreover, this pooling arrangement does not necessarily increase the dollar amount of chargeable expenses assessed to plaintiffs for any particular year. Id. at 140. 58 Lehnert, 500 U.S. at 523. 59 Finerty v. NLRB, 113 F.3d 1288, 1292 (D.C. Cir. 1997) (emphasis in original). See also Reese v. City of Columbus, 716 F.3d 619 (6th Cir. 1995). 60 California Saw, 320 NLRB at 238–239. lobbying. When a participating local contributes to oth- erwise chargeable lobbying on behalf of the parent union or another local, it can reasonably expect that its own lobbying costs will be partially covered by the contribu- tions of other locals.61 Here, for instance, although em- ployees in the Kent Hospital local in Rhode Island would be unlikely to benefit directly from State legislation that UNAP supported in Vermont, the contributions of other units to the Union’s general operating fund were clearly intended to subsidize similar efforts on their behalf. In- deed, the record evidence makes clear that UNAP’s fund also covered lobbying efforts intended to benefit its Rhode Island members. Moreover, as the Union asserts, the Kent Hospital local would not have the financial re- sources to engage in lobbying on its own but for its par- ticipation in the pool.62 Thus, assuming that the Vermont legislation is otherwise chargeable, UNAP may lawfully charge Kent Hospital objectors their pro rata share of the lobbying expenses incurred through this reciprocal ar- rangement. F. The Chargeability of Specific Lobbying Expenses In sum, and consistent with the established precedent in this area of the law, we hold today that (1) lobbying expenses may be charged to objectors, but only if they are germane to the union’s role in collective bargaining, contract administration or grievance adjustment, and (2) extra-unit lobbying expenses may be charged only if they were incurred for services that are otherwise chargeable and that may ultimately inure to the benefit of employees in the objector’s bargaining unit because of the union’s participation in an expense-pooling arrangement. This latter requirement can be established by showing that the lobbying charge is reciprocal in nature. To hold that intra- and extra-unit lobbying expenses are potentially germane and thus chargeable, however, leaves open the question of how, going forward, we should determine whether particular lobbying expenses 61 Contrary to our dissenting colleague, nothing in Locke suggests that the Court’s holding there should be limited to litigation expenses. As we have explained, the Court based its analysis on the general no- tion of reciprocity, i.e., the idea that a unit member may be required to subsidize a chargeable activity on behalf of a nonunit member where there is an expectation that her own expenses for the same activity will be similarly covered by the general fund. So long as the expenses in- curred by the union are otherwise chargeable, the only relevant ques- tion is whether such an arrangement exists. Thus, we do not suggest here that all lobbying expenses may be chargeable to extra-unit mem- bers, but only those that are germane to the union’s representative functions, consistent with Beck. 62 See Otto, 330 F.3d at 136 (“Even if a local union party to such an arrangement does not litigate in any given year, it still derives a tangi- ble benefit from participating in an expense-pooling agreement: the availability of on-call resources greater than those it could muster indi- vidually.”). UNITED NURSES AND ALLIED PROFESSIONALS (KENT HOSPITAL) 477 satisfy the germaneness test. We propose an approach to this question using rebuttable presumptions of germane- ness, and solicit the views of stakeholders in this process and other interested parties. To begin, we adhere to the rule that, as in other chargeability contexts, a union has the ultimate burden to justify all of its claimed expenditures and the percentages of each that are chargeable and nonchargeable.63 We propose, however, that, as to certain kinds of lobbying expenses, there may exist such a direct, positive relation- ship between the union’s representational duties and the union’s goals in pursuing legislative or other action that a rebuttable presumption of germaneness is warranted.64 For instance, proposed legislation may be so closely linked to the union’s representational functions that it would directly affect subjects of collective bargaining. Where the legislature has effectively pulled up a seat at the bargaining table, it is hard to see how the union’s effort to influence the legislature in such matters is not germane to collective bargaining. In those circumstanc- es, we propose presuming that lobbying expenses are germane to the union’s representative functions and thus chargeable. To give concrete examples, lobbying for or against minimum wage legislation, professional licensing and certification legislation affecting employees repre- sented by the union, and State supplements to the Worker Adjustment and Retraining Notification (WARN) Act might be types of lobbying expenses that would reasona- bly be treated as presumptively germane and thus chargeable. On the other hand, some union lobbying activities may bear a relationship to the union’s representational duties so attenuated that a presumption of germaneness would seem difficult to justify. For example, lobbying related to general economic stimulus or broad social or envi- ronmental policies might be difficult to view as presump- tively germane to a union’s representative functions. In those circumstances, we propose that no presumption of germaneness apply. Presumptions of germaneness would be useful to the public: they would simplify for unions the task of ensur- ing compliance with their Beck obligations and for ob- jecting employees the determination whether their union is in compliance. As with any general rule, however, there may arise an exceptional case that demands an ex- 63 California Saw, 320 NLRB at 242. 64 See Food & Commercial Workers Locals 951, 7, & 1036 (Meijer, Inc.), 329 NLRB 730, 738 (1999), enf. denied in relevant part sub nom. Food & Commercial Workers v. NLRB, 284 F.3d 1099 (9th Cir. 2002), modified and superseded 307 F.3d 760 (9th Cir. 2002) (expenses are germane where there is a “direct, positive relationship” between the activity and a representational objective). ception to even the most reasonable presumption. It would therefore be advisable for any such presumptions to be rebuttable based on the specific circumstances of a particular case. Thus, for those expenses that are pre- sumptively germane, the General Counsel or a charging party might rebut the presumption by showing, for ex- ample, that the relationship of the expenses to the union’s representative functions is too attenuated. For instance, lobbying for a minimum wage rate may not be chargea- ble where the union represents only employees in a high- ly compensated field of work that would not be affected by such a rate. By the same token, a lobbying expense that is not presumptively germane may still be shown to be chargeable if the particulars of the legislation, indus- try, or employee group, for example, make it germane to collective bargaining, contract administration, or griev- ance adjustment. The Board invites all interested parties to file briefs in this case regarding the question of how the Board should define and apply the germaneness standard in the context of lobbying activities. In particular, we encourage inter- ested parties to address the appropriateness of presump- tions concerning germaneness and to provide examples of the types of lobbying activities that should or should not be subject to such presumptions. Briefs not exceed- ing 25 pages in length shall be filed with the Board in Washington, D.C. on or before [60 days from the date of issuance], 2013. No extensions will be granted. The par- ties to the matter may file responsive briefs on or before [14 days later], 2013, which shall not exceed 10 pages in length. No other responsive briefs will be accepted. The parties and amici shall file briefs electronically at https://mynlrb.nlrb.gov/efile. If assistance is needed in filing through https://mynlrb.nlrb.gov/efile, please con- tact [Executive Secretary Name], Executive Secretary, National Labor Relations Board. ORDER The complaint allegation that the Respondent unlaw- fully failed to provide objectors with an audit verification letter is dismissed. IT IS FURTHER ORDERED that the complaint allegations pertaining to the chargeability of lobbying expenses to Beck objectors are severed from this case, and that the Board shall retain jurisdiction over those matters for fur- ther consideration. MEMBER HAYES, dissenting. Contrary to my colleagues, I find that the Respondent- Union should be required to provide Beck objectors veri- fication that the financial information disclosed to them has been professionally audited by an independent ac- countant. Furthermore, I disagree with their overly broad 478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD test for determining the chargeability of lobbying ex- penses. I find that the Respondent-Union improperly charged the Beck objectors for lobbying expenses associ- ated with all seven bills because those lobbying activities are not so related to the Union's representational duties to employees in the objecting employees’ bargaining unit as to justify their compelled financial support of them. I The complaint alleged that the Union violated Section 8(b)(1)(A) by “fail[ing] to provide [the objecting] em- ployees with evidence beyond a mere assertion that the financial data [enclosed with the letter] was based on an independently verified audit.” At the hearing, the Acting General Counsel clarified that the complaint allegation concerned only the Union’s failure to accompany the expense statements provided to the objectors with a copy of the accountant’s letter verifying that the audit actually occurred; it did not concern verification of the accuracy of the figures the Union provided to the objectors.1 Although the Board has not expressly stated that a un- ion must provide a copy of an independent accountant’s audit verification letter to the objectors, the Board has consistently held that a union must provide some form of verification of the information provided to nonmember objectors. Such a requirement is further consistent with the Board’s policy that objectors receive reliable infor- mation necessary to making informed decisions. I would therefore require the Union to provide the verification letter at issue. In California Saw & Knife Works, 320 NLRB 224 (1995), enfd. sub nom. Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. denied sub nom. mem. Strang v. NLRB, 525 U.S. 813 (1998), the Board set out the in- formation a union must provide potential and actual ob- jectors at three stages. At stage 2, an employee who ob- jects to paying dues for nonrepresentational activities under Beck must be apprised of the percentage of dues reduction, the basis for the calculation, and the right to challenge the union’s figures. Id. at 233. In setting the notice requirements, the Board specifically relied on Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986), finding that “basic considerations of fairness” 1 The Charging Party disagreed with the Acting General Counsel’s limited theory of the case and argued that the accuracy of the expense information provided to the objectors must be verified by the Union. I agree with the Charging Party that an objector is entitled to verification by the independent auditor both that the expense information has in- deed been audited and that the figures provided are accurately stated or extracted from the audited report. The Acting General Counsel, how- ever, controls the litigation theory of the case and has limited the com- plaint allegation to the requirement that the Union provide the account- ant’s audit verification letter. dictate that potential objectors be given sufficient infor- mation to gauge the propriety of the union’s fee. Id. at 232–233. As to the scope of the union’s duty to verify its calculations, the Board stated that “Hudson requires only that the usual function of an auditor be performed, i.e. to determine that the expenses claimed were in fact made.” Id. at 241 (citing Price v. Auto Workers UAW, 927 F.2d 88, 93 (2d Cir. 1991)). The Board further explained its verification require- ment in Television Artists AFTRA (KGW Radio), 327 NLRB 474 (1999), petition for review dismissed 1999 WL 325508 (D.C. Cir. 1999). The Board held that Cali- fornia Saw “clearly envisioned some type of verification of the information provided to nonmember objectors is necessary for a union to fulfill its obligations under the duty of fair representation to provide sufficient infor- mation.” Id. at 476. In addition, under California Saw, verification meant “an audit within the generally accept- ed meaning of the term, in which the auditor inde- pendently verifies that the expenditures claimed were actually made” rather than merely accepted as correct.2 Id. at 477. In KGW Radio, the union provided the objector a compilation of chargeable and nonchargeable expenses in a report prepared by the union’s accountant. The ac- countant did not audit or verify the accuracy of the ex- penditures in the report and relied solely on representa- tions by the union’s executive director in compiling his report. Id. at 476. The Board concluded that the report did not satisfy its requirements that an accountant inde- pendently confirm the reliability of the union’s financial figures in an audit consistent with standard accounting practices. Id. at 476. The Board confirmed that objecting nonmembers must be given a reliable basis for calculat- ing the fees they must pay and determining whether to challenge the union’s dues-reduction calculations. Id. at 477. See also Ferriso v. NLRB, 125 F.3d 865, 869–870 (D.C. Cir. 1997) (“nonmembers cannot make a reliable decision as to whether to contest their agency fees with- out trustworthy information about the basis of the union's fee calculation”). In Food & Commercial Workers Local 4 (Safeway, Inc.),3 the Board again found that the expenditure infor- 2 The Board in California Saw, supra, held that, as an alternative to an audit, a union may utilize a “local presumption.” Id. at 242. Here, the Union did not rely on a local presumption. I express no opinion on the use of “local presumption” as an appropriate alternative means of allocating chargeable expenses. 3 353 NLRB 469 (2008), affd. by 355 NLRB 634 (2010). I recog- nize that the Ninth Circuit subsequently vacated the Board’s Order as unreviewably ambiguous in an unpublished order issued on October 31, 2011. Still, the Board has never disavowed the two-member Board’s UNITED NURSES AND ALLIED PROFESSIONALS (KENT HOSPITAL) 479 mation provided to the objector was insufficiently veri- fied. After the objector complained that the Union’s ini- tial statement was inadequate to explain how the agency fee was calculated, the union provided her with a copy of an “Independent Accountant’s Report.” The report stat- ed that, although the accountant reviewed the expendi- ture statement, the information was based solely on the union’s representations, “that it was substantially less in scope than an audit,” and that the accountant expressed no opinion as to the financial statement as a whole. Id. at 469–470. As in KGW Radio, the Board found that the expenditure information provided by the Union had not been sufficiently verified. Id. at 470–471. In Safeway and KGW Radio, the objectors received a report of the union’s expenditures prepared or reviewed by an independent accountant. The Board nevertheless found that the union violated its duty of fair representa- tion because the expenditure information in the account- ant’s report was not verified by an independent audit. Similarly, in this case, the objectors received a letter stat- ing that the report was verified by a certified public ac- countant. That information, like the information in KGW Radio and Safeway, does not confirm that the accountant independently verified the Union’s figures. That specific verification is in the accountant’s letter. The majority claims that the Acting General Counsel seeks a “verification of a verification.” I disagree. As the Board stated in Safeway, lawful verification requires “that an audit must be prepared . . . and the auditor must independently verify that the expenditures claimed were actually made rather than accept the representations of the union.” Safeway, supra, 353 NLRB at 471 (citing KGW Radio, supra, 327 NLRB at 477). Here, the Union has informed objectors that some sort of independent audit has occurred, but it did not provide the verification as described by the Board in Safeway.4 The Ninth Circuit, in Cummings v. Connell, 316 F.3d 886 (9th Cir. 2003), makes explicit what seems implicit in the Board’s decisions. The court held that a public sector union’s disclosure to objectors was insufficient because it did not include an independent verification that an audit had been performed. There, the union’s report provided to objectors broke down its annual ex- penditures into chargeable and nonchargeable categories. Id. at 889. As here, the union informed objectors that its rationale in the original 2008 decision. Even if it lacks precedential value, I find the rationale persuasive as to the issue presented here. 4 I agree with my colleagues that the issue of an audit verification letter was not directly presented in Safeway. Obviously, I disagree with them that the Board’s reasoning did not implicitly encompass to obliga- tion to provide such a letter affirming that an independent audit has been done. figures were taken from an independent audit that had been prepared by a certified public accounting firm. Id. The court held that, under Hudson, the information pro- vided was inadequate to assure objectors that the expend- itures cited had been independently verified. It observed that the union’s document “essentially required the [ob- jectors] either to accept that the expenditures were indeed audited or to go through the trouble of requesting a copy of the audit report to verify the Union’s summary.” Id. at 891. Although the court did not require the union to pro- vide objectors with a full copy of the underlying audit, because the union contended that it lifted the relevant figures from an audited statement, the court ordered it to “include certification from the independent auditor that the summarized figures have indeed been audited and have been correctly reproduced from the audited re- port.”5 Id. at 892 (emphasis added). I find the Ninth Cir- cuit’s rationale in Cummings persuasive and consistent with the Board’s own precedent. As the majority notes, the Board has long endeavored in this area to achieve “a careful balance of the compet- ing interests involved.” California Saw, 320 NLRB at 230. In my view, requiring the Union here to produce the auditor’s verification letter is consistent with main- taining that careful balance. Objectors would be assured of the accuracy of the Union’s nonchargeable expenses— as is their right—and the Union, which undisputedly pos- sessed the letter, would incur no additional burden by providing that assurance. II I do not agree with the vague, overbroad test the ma- jority proposes for determining whether the lobbying expenses are chargeable to objecting employees. Unlike my colleagues, I believe that relevant Supreme Court precedent compels holding that there are only very lim- ited circumstances, if any, in which these costs may be chargeable as incurred during the union’s performance of statutory duties as the objectors’ exclusive bargaining agent. The law governing what union expenses may be chargeable to objectors originated in public sector and Railway Labor Act (RLA) cases raising constitutional and statutory challenges to compulsory union dues that 5 The court cited other circuits’ decisions that also require that the notice to objectors include some verification or certification by the independent auditor. See also Wessel v. City of Albuquerque, 299 F.3d 1186, 1193–1194 (10th Cir. 2002) (holding that the union was required to provide, in its disclosure to objectors, “a report expressing the audi- tor’s opinion on the schedule”); Tierney v. City of Toledo, 824 F.2d 1497, 1504 (6th Cir.1987) (“[A]ll nonmembers must receive an ade- quate accounting, certified by an independent auditor and setting forth the major categories of the union's budgeted expenses.”). 480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD support activities not germane to collective bargaining. The Supreme Court upheld agency shop agreements un- der the RLA—Machinists v. Street, 367 U.S. 740 (1961)—and in the public sector—Abood v. Detroit Board of Education, 431 U.S. 209 (1977)—but only in- sofar as employees who objected to the expenditure of their funds on nonrepresentational activities were shield- ed from the compulsion to support them. In Ellis v. Railway Clerks, 466 U.S. 435 (1984), the Court reaffirmed that the union's role as bargaining agent for all unit employees justified compelling dues from nonmembers to fairly distribute the costs of the union’s performing its statutory duties which necessarily accrue to the nonmembers in the unit. The Court stated that “[w]e remain convinced that Congress’ essential justifi- cation for authorizing the union shop was the desire to eliminate free riders-employees in the bargaining unit on whose behalf the union was obliged to perform its statu- tory functions, but who refused to contribute to the cost thereof.” Id. at 447 (emphasis added). Thus, the test “when employees . . . object to being burdened with par- ticular union expenditures, . . . must be whether the chal- lenged expenditures are necessarily or reasonably in- curred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.” Id. at 448 (emphasis added). My colleagues minimize RLA and public sector prece- dent as offering only limited guidance because those cas- es implicate governmental action and thus are subject to constitutional scrutiny. They contend, therefore, that un- der the Act a less stringent standard of the duty of fair representation applies to whether lobbying may be chargeable to objectors. But in Communications Workers v. Beck, 487 U.S. 735 (1988), the Court extended its reasoning and holdings in those cases to the Act, concluding that Congress intended that Section 2, Eleventh of the RLA and Section 8(a)(3) function as statutory equivalents, thereby making the law developed in the Supreme Court’s RLA and public sector decisions relevant to interpretation of the Act, even ab- sent the element of State action. The Court stated: In Street, we concluded that our interpretation of § 2, Eleventh [Congress did not intend to permit unions to compel dues from objectors except for collective bar- gaining and grievance adjustment] was “not only ‘fairly possible’ but entirely reasonable,” 367 U.S. at 750, and we have adhered to that interpretation since. We there- fore decline to construe the language of § 8(a)(3) dif- ferently from that of § 2, Eleventh on the theory that our construction of the latter provision was merely constitu- tionally expedient. Congress enacted the two provi- sions for the same purpose, eliminating “free riders” and that purpose dictates our construction of 8(a)(3) no less than it did that of 2, Eleventh, regardless of wheth- er the negotiation of union-security agreements under the NLRA partakes of governmental action. [487 U.S. at 762.] [Emphasis added.] The Court, accordingly, concluded that “Section 8(a)(3), like its statutory equivalent, Section 2 Eleventh of the RLA, authorizes the exaction of only those fees and dues necessary to ‘performing the duties of an exclu- sive representative of the employees in dealing with the employer on labor-management issues.’” Id. at 762–763 quoting Ellis, supra at 448 (emphasis added). In short, the Court has consistently treated the limits on compulsory union dues as rooted in the union’s duty of fair representation regardless of the legal basis for challenging an expense. Consequently, the union’s au- thority to compel nonmembers’ financial support under the “free riders” rationale cannot go beyond the expenses “necessary to ‘performing the duties of an exclusive rep- resentative,’” Beck, supra, 487 U.S. at 762, otherwise described as “the cost of performing the union's “statuto- ry functions,” Ellis, 466 U.S. at 447. This is limiting language, far more so than my colleagues concede, fun- damentally restricting chargeable expenses to those that can reasonably be defined as incurred when “negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling dis- putes and processing grievances,” Abood, 431 U.S. at 221. Under Ellis, the challenged lobbying expenses for the seven bills here cannot be charged to the nonmembers because, though they may in general relate to terms of employment or may incidentally affect collective bar- gaining, the lobbying activity is not part of the union’s statutory collective-bargaining obligation and therefore, is nonchargeable. Indeed, in Lehnert v. Ferris Faculty, 500 U.S. 507 (1991), the Court specifically concluded that a public sector union could not lawfully charge ob- jectors for legislative lobbying expenses which were “re- lated not to the ratification or implementation of a dis- senter's collective-bargaining agreement, but to financial support of the employee's profession or of public em- ployees generally.” In such circumstances, “the connec- tion to the union's function as bargaining representative is too attenuated to justify compelled support by object- ing employees.” Id. at 520. (Emphasis added.) Although constitutional concerns were “[perhaps] most important,” the Lehnert Court also rejected permitting the union to charge objectors for lobbying expenses unre- UNITED NURSES AND ALLIED PROFESSIONALS (KENT HOSPITAL) 481 lated to effectuation of the collective-bargaining agree- ment as not justified by governmental interests in pro- moting labor peace or any “free rider” concerns, which likewise limit compulsory dues under the RLA and the Act. Id. at 520–522. Lobbying activity is not a representational function simply because the proposed legislation involves a mat- ter that may also be the subject of collective bargaining. This argument was explicitly rejected by the D.C. Circuit in Miller v Air Line Pilots Assn., 108 F.3d 1415 (D.C. Cir. 1997), where the court concluded that lobbying ex- penses incurred for the purpose of improving employee safety were not chargeable. The union argued that ex- penses related to making its views about Federal regula- tion of airline safety known to Congress and Government agencies were “interconnected with those airline safety issues that animate much of its collective-bargaining and therefore they should be regarded as germane to that bar- gaining.” Id. at 1422. Finding “major difficulties with the union's position,” the court observed that “[i]f there is any union expense that, given the logic of Hudson and its progeny, must be considered furthest removed from “germane” activities, it is that involving a union’s politi- cal actions.” Id. The court rejected the union’s attempt to have us see its lobbying on safety related issues as somehow nonpolitical because all pilots share a com- mon concern with these activities. . . . That the subject of safety is taken up in collective- bargaining hardly renders the union's government re- lations expenditures germane. Under that reasoning, union lobbying for increased minimum wage laws or heightened government regulation of pensions would also be germane. Indeed if the union's argument were played out, virtually all of its political activities could be connected to collective-bargaining. Citing, inter alia, Lehnert at 516 (expenses are not germane to col- lective bargaining “at least in the private sector” if they involve political or ideological activities); Ellis at 447– 48; Street at 768. [Emphasis added.] Id. at 1422–1423. Rather than narrowly defining chargeable lobbying expenses as limited to those few instances germane to representation of a particular objector’s unit, the majori- ty’s test broadly permits a union to charge an objector even for extra-unit lobby expenses that “may ultimately inure to the benefit of members of the local union by virtue of their membership in the parent organization.” As applied, this test is essentially founded on the theory that a rising tide lifts all boats. Even so, the potential for extra-unit lobbying for changing the minimum wage or enacting State WARN legislation to realistically ever “inure” to the benefit of any specific objectors’ unit is far too attenuated. Recognizing that a union may still have difficulty proving that most extra-unit lobbying expenses inure to the benefit of objectors in a particular unit, the majority eliminates this proof problem by deeming the require- ment satisfied where the charge is part of a reciprocal, pooling arrangement. They rely on Locke v. Karass, 555 U.S. 207 (2009), where the Court concluded that expens- es of the national union’s litigation, that did not directly benefit the nonmembers’ local, were chargeable because those litigation expenses would otherwise be chargeable and the nonmembers’ local had a reasonable expectation that the contributions of other locals to the national’s resources would be available to support litigation on its behalf if and when it takes place. The majority, however, reads far too much into Locke. First, the pooling arrangement in Locke concerned a national union’s litigation expenses, not lobbying. Noth- ing about the Court’s reasoning or findings suggests that it should be construed as extending to lobbying expenses. Indeed, the Court noted that nonmembers in Locke were not charged for national expenses that were “political, public relations, or lobbying activities” (emphasis added) or national litigation costs associated with those activi- ties. Id. at 211. It also observed that, under the Court’s own precedent, a union could not charge a nonmember for “political or ideological activities” but “may charge non-members for activities more directly related to col- lective-bargaining.” Id. at 213. In reaching its conclusion that litigation expenses may be chargeable, the Court, furthermore, noted that in Lehnert “three irreconcilable” views as to the chargeabil- ity of national litigation expenses divided the Justices, and that the Court’s “failure [in Lehnert] to find a majori- ty [view]” had created “uncertain[ty] about the matter” in the lower courts. Locke, supra at 216. After examining the issue further, the Court could find “no significant difference between litigation activities and other national activities the . . . Court has found chargeable . . . [and] no sound basis for holding that national social activities, national convention activities, and activities involved in producing the nonpolitical portions of national union publications all are chargeable but national litigation activities are not.” Id. Significantly, the Locke opinion did not disturb or question Lehnert’s nearly unanimous holding that lobbying expenses unrelated to contract rati- fication or implementation are not chargeable. Lehnert, supra at 522. 482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Last, Locke does not support the majority’s presump- tion that the existence of a pooling arrangement to pay for extra unit activity suffices as establishing that any- thing will “ultimately inure to the benefit of members of the local union.” The parties in Locke did not challenge the “reciprocal nature” of the litigation charge so “the existence of reciprocity” was not in dispute. Locke, su- pra at 807. See also Locke, supra at 808 (“case does not require us to address what is meant by a charge being “reciprocal in nature,” or what showing is required to establish that services “may ultimately inure to the bene- fit of the members of the local union by virtue of their membership in the parent organization’”). (Alito, J., concurring.) Thus, Locke neither suggests it is applicable to lobbying expenses nor provides a basis for presuming that the mere existence of a pooling arrangement proves it will “inure” to benefit the objector’s unit. On the con- trary, a key requirement of Locke is that, even for extra- unit litigation expenses to be chargeable, “the subject matter of the (extralocal) litigation [must be] of a kind that would be chargeable if the litigation were local, e.g., litigation appropriately related to collective bargaining rather than political activities.” Id. at 802. In sum, my colleagues make an extraordinary effort in their analysis of the chargeability of lobbying expenses to narrowly read multiple decisions of the Supreme Court in an attempt to persuade that the Court did not say what it clearly did say about this specific issue, and that the Court did not mean to apply its reasoning to the defini- tion of the duty of fair representation under our Act. They then turn about and expansively read one decision of the Court that does not involve lobbying expenses as opening the door wide to chargeability of even those extra-unit lobbying expenses, including lobbying for political purposes, whose inferential relationship to rep- resentation of a particular objector’s unit is greatly atten- uated. Obviously, I disagree with that analysis and the result- ant standard for chargeability. Consequently, I disagree that there is a need for further briefing and analysis of any of the lobbying activities at issue in this case. None of them can reasonably relate to the Respondent Union’s performance of representational duties to the Beck objec- tors’ as part of their bargaining unit. Accordingly, based on the clearly applicable restrictive standard for chargea- bility derived from a proper reading of Ellis, Beck, and Lehnert, I would find that the Respondent violated its duty of fair representation by charging nonmember ob- jectors for expenses incurred as to any of these lobbying activities. I dissent. Don Firenze, Esq., for the General Counsel. Christopher Callaci, Esq., for the Respondent. Matthew Muggeridge, Esq. (National Right to Work Legal De- fense Foundation), for the Charging Party. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. This case was heard by me on February 14, 2011, in Boston, Massachu- setts. The amended complaint herein, which issued on Decem- ber 29, 2010, and was based on an unfair labor practice charge and an amended charge that were filed by Jeanette Geary on November 23, 2009, and May 27, 2010, alleges that United Nurses and Allied Professionals (the Union) and/or (the Re- spondent), while providing Geary and other nonmembers with certain information concerning its expenditures for representa- tional activities, failed to provide them with evidence beyond a mere assertion that this information was based on an inde- pendently verified audit, and since September 2009, the Union has continued to seek from Geary and the other nonmembers, as a condition of their employment at Kent Hospital ( the Em- ployer), dues and fees expended by the Union for lobbying activity, in violation of Section 8(b)(1)(A) of the Act. I. JURISDICTION The Respondent admits, and I find, that the Employer, an acute care hospital located in Warwick, Rhode Island, has been an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act and a health care institution within the meaning of Section 2(14) of the Act. II. LABOR ORGANIZATION STATUS Respondent admits, and I find, that it has been a labor organ- ization within the meaning of Section 2(5) of the Act. III. THE FACTS The issue herein is whether the Respondent properly noti- fied, and charged, its nonmember objectors pursuant to Com- munication Workers v. Beck, 487 U.S. 735 (1988). More par- ticularly, there are two issues. One is a “normal” Beck issue: can objecting nonmembers, such as the Charging Party, be charged for lobbying expenses that the Union incurred in Rhode Island and Vermont, where the Union also represents health care employees. The other issue relates to the statement that the Union sent the Charging Party and other nonmember objectors concerning its expenditures for its representational activities for its fiscal year. Counsel for the General Counsel is not alleging that any of these expenditures were improperly charged to the objectors (with the exception of the lobbying expenses referred to above). Rather, counsel for the General Counsel is alleging that the Union violated the Act by not in- cluding its independent auditors attached letter to this listing. A. The Cover Letter Richard Brooks is the executive director of the Union. He testified that prior to issuing its expenditures that was sent to its objecting nonmembers, the Union’s accounts were examined by, and subject to, an independent auditor, who verified these figures. A letter from the auditor accompanied this verified audit, but the Union did not send the accompanying letter to the Beck objectors. He testified that the reason the auditor’s letter UNITED NURSES AND ALLIED PROFESSIONALS (KENT HOSPITAL) 483 was not sent to the objectors was because he understood that the law did not require it. B. The Union and its Lobbying Expenses There were seven bills that were lobbied in the State of Rhode Island. The Union admits that three of these were admit- tedly not chargeable to the Beck objectors leaving the chargea- bility of four Rhode Island bills to be litigated. In addition, the Union lobbied for three bills in the State of Vermont where it represents employees as well. Counsel for the General Counsel also alleges that the expenses for lobbying for these Vermont bills should not be chargeable to the Beck objectors. Respondent is composed of 15 local unions in the States of Rhode Island, Vermont, and Connecticut. The locals range from 2269 bargaining unit employees at the Rhode Island Hos- pital, 619 at Kent Hospital, to five registered nurses at the Put- nam Board of Education in Putnam, Connecticut. Because of this large discrepancy in the number of members in the differ- ent locals, there is a corresponding discrepancy in the amount of monthly per capita dues that the Union receives from these locals, from about $125 from the Putnam local to about $50,000 from the Rhode Island Hospital local. Regardless of the amount that the local unions pay to the Respondent monthly as per capita dues, it is the Respondent, rather than the local unions comprising the Respondent, that handles the local un- ion’s collective-bargaining obligations, from negotiating con- tracts to processing and handling grievances and arbitrations. In addition, the Union does not collect dues from employees until a contract has been signed with their Employer, so the Union did not have any per capita income from the Employer’s em- ployees until about July 2009 when the first contract with the Union was entered into. The Hospital Merger Accountability Act (Jt. Exh. 6) was in- troduced in the Rhode Island General Assembly on March 5, 2009. The Findings state that “any entity that owns more than fifty percent (50%) of the hospital beds in Rhode Island would have extraordinary influence on the cost, quality, and access to health care services, the economy of Rhode Island, the health care labor market and the overall health of Rhode Islanders.” Brooks testified that he spent between 25 and 30 hours lobby- ing the State legislature in support of this bill. At the time that this bill was introduced, Lifespan Corporation, which owns four hospitals in the State, including Rhode Island Hospital, where the Union represents about 2200 employees, and Care New England, which owns the Employer and two other hospi- tals, were discussing a merger. Brooks testified: UNAP actually initiated this bill. We were very concerned about the potential adverse impact of what would have been an enormous merger and consolidation of hospitals in Rhode Island had Lifespan and Care New England accomplished their merger they would have owned 75% of the hospital business in Rhode Island. And we were very, very concerned that that merger, if successful, would have the potential to se- verely threaten the jobs of members either at Kent or Rhode Island Hospital, as a result of likely consolidation or closure of services at one or more of the facilities. We were also concerned that a merger of that size could ad- versely impact those remaining hospitals in our union that weren’t part of the system, because of the competitive disad- vantage that they might find themselves at. And last, we were very concerned that If Lifespan and Care New England to- gether had that type of market share that they might lower the standards of staffing levels for nurses at their hospitals. . . . So, it was jobs, it was the financial viability of non-affiliated hos- pitals and finally to preserve the adequate working conditions for nurses. If this bill had passed, the Union would have been able to inter- vene before the Health Services Council of the Department of Health to present evidence in opposition to proposed mergers or consolidations that the Union felt could result in the loss of jobs by its members. Brooks testified that he spent between 5 to 10 hours in 2009 lobbying on behalf of one of its locals that represent registered nurses employed by the State of Rhode Island for a bill entitled Relating to Public Officers and Employees-Retirement System- Contributions and Benefits (Jt. Ex. 7). The Union supported and lobbied for this law because it would have increased the cap on post retirement earnings that the former state employees could earn from $12,000 to $24,000 a year. Brooks also spent 2 to 3 hours in 2009 lobbying in favor of a Hospital Payments Act (Jt. Ex. 12) in Rhode Island because this bill would have increased state funding to two hospitals where the Union represents employees, the Employer and Westerly Hospital in Washington County. At the time, the Union was involved in negotiations with the Employer and was preparing to begin negotiations with Westerly Hospital. If the bill had passed, the Employer would have received an additional $800,000 and Westerly Hospital would have received an addi- tional $500,000. John Callaci, director of collective bargaining and organizing for the Union, testified to the effect that this bill would have had on the Union’s members, more particularly those employed at Westerly Hospital and the Employer. In their negotiations with the Employer, the Employer was alleging large losses because of inadequate reimbursements. An infusion of an additional $800,000 would have amounted to approxi- mately $1200 per full-time employee. The effect at Westerly was even more direct. He testified that the contract with West- erly Hospital provides that if they lost less than $500,000, then for every dollar that they lost less than $500,000 half of it would go into a pool of money that would be distributed equally among the employees. So, just in the way of an example, if they lost $100,000 that year, that means they were 400,000 under the benchmark. That 400,000 would be divided in two to make 200,000, and that 200,000 would be distributed in a bonus check to the employees. Brooks spent about 1 hour in 2009 lobbying in favor of a bill before the Rhode Island General Assembly entitled An Act Relating to Health and Safety-Center for Health Professionals Act (Jt. Exh. 11). This bill was also favored by the Hospital Association of Rhode Island and would promote and focus on education, recruitment, and retention of registered nurses in order to address the nursing shortage. He testified that the nurs- ing shortage was impacting the Union’s members by requiring 484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD them, at times, to handle more patients than they can safely care for and to float from one unit to another. He testified: So, by supporting this legislation to create incentives to educate, recruit and retain registered nurses, we were doing our part to address the nursing shortage and reduce the impact that the nursing shortage has on our members’ working conditions. Three additional bills before the Rhode Island General As- sembly in 2009 (Jt. Exhs. 8, 9, and 10) related to health and safety. One related to the need for new health care equipment and another related to the licensing of health care facilities in the state. Brooks testified that the Union spent about an hour lobbying for each of these three bills. Admittedly, the lobbying expense for these bills should not have been charged to the nonmember objectors. The remaining bills were in the State of Vermont. In 2009 the Union spent $22,600 for lobbying costs in the State of Vermont, and its objectors were charged for 97 percent of this amount. The Union represents approximately 500 employees in Vermont and they lobbied for a bill that would have required certain hospitals to adopt and acquire equipment and mechani- cal means in order to ameliorate the stress and injuries caused when health care employees have to lift or carry patients. The bill would have required that a committee be formed in each unit and shift at health care facilities. The Union also lobbied for a bill that would have prohibited mandatory overtime for certain health care employees except when there is an emergen- cy. Callaci testified that mandatory overtime is one of the most onerous aspects of working conditions in the health care indus- try: And, as you can imagine, if you were working on a day shift for example, you come to work, you expect to work 7:00, 8:00 to 3:30 and you have to work for 7A to 11P, that’s very onerous both physically from a work point of view and how it adversely affects family life and personal life. And so, for our members at Retreat Healthcare and Copley Hospital, the right of an employer to impose mandatory overtime, as they fre- quently do, is really onerous. Finally, the Union paid for some lobbying activities related to a bill in the Vermont legislature with regard to mental health care funding. Retreat Healthcare, some of whose employees the Union represents, would have received some of these funds. The contract covering these employees provides that if the state provides the employer “with new money earmarked for per- sonnel costs over and above that which is already covered by the current state budget,” either party can reopen the agreement to negotiate about the distribution of those additional funds. IV. ANALYSIS The initial allegation is that the Respondent violated the Act by not providing the Beck objectors with an accompanying letter from its auditor confirming the reliability of the audit. Admittedly, the Board has never found that to be a violation, although Cummings v. Connell, 316 F.3d 886 (9th Cir. 2003), did make such a finding in a case involving employees of the State of California, stating: We find that the Union’s 1999 notice did not satisfy the dic- tates of Hudson. Although it informed nonmembers that the figures in the notice were derived from an audited statement, it did not include any “independent verification” of this fact. Because the Board has not yet ruled on this issue, and because Cummings involved public sector employees, I recommend that this allegation be dismissed and leave it to the Board to decide. The principal issue is the chargeability of the Union’s lobby- ing expenses in Rhode Island and Vermont. What is not in dis- pute is that the Union improperly charged the nonmember ob- jectors for approximately 3 hours that Brooks spent lobbying for three bills before the Rhode Island General Assembly in 2009: An Act Relating to Health and Safety—Department of Health, introduced on February 26, 2009 (Jt. Exh. 8); An Act Relating to Health and Safety—Determination of Need for New Health Care Equipment and New Institutional Health Services, introduced February 4, 2009 (Jt. Exh. 9); and An Act Relating to Health and Safety—Licensing of Health Care Facilities, introduced March 10, 2009 (Jt. Exh. 10). As the Respondent admits that these charges were improper, I find that they violat- ed Section 8(b)(1)(A) of the Act. The remaining allegations relate to the charges for lobbying the remaining bills in both Rhode Island and Vermont. The difficulty in establishing a dividing line between chargeable and nonchargeable derives from the broad language in the deci- sions. Beck states that objectors’ financial obligations to the union may not include support for activities “beyond those germane to collective bargaining, contract administration and grievance adjustment,” while Abrams v. Communications Workers of America, 59 F.3d 1373 at fn. 8, states: We disagree with the employees’ contention that CWA must demonstrate that chargeable expenses provide an “actual ben- efit” to nonmembers. As the district court declared, “plaintiffs want CWA to have to prove that all charged expenses, no matter how squarely those expenses fall with the Supreme Court’s definition of chargeable ones, actually benefit them. There is no basis for such a requirement in Supreme Court precedent or in CWA’s statutory duty of fair representation.” 818 F. Supp. at 404. The three most relevant cases herein are Lehnert v. Ferris Fac- ulty Assn., 500 U.S. 507 (1991), Locke v. Karass, 555 U.S. 207 (2009), and Fell v. Independent Assn. of Continental Pilots, 26 F.Supp.2d 1272 (1998). In Lehnert, a public sector case, the Court stated, inter alia: The Court of Appeals determined that unions constitutionally may subsidize lobbying and other political activities with dis- senters’ fees so long as those activities are “pertinent to the duties of the union as a bargaining representative.” In reach- ing this conclusion, the court relied upon the inherently politi- cal nature of salary and other workplace decisions in public employment. “To represent their members effectively,” the court concluded, “public sector unions must necessarily con- cern themselves not only with negotiations at the bargaining table but also with advancing their members’ interests in leg- islative and other ‘political’ arenas.” This observation is clearly correct. UNITED NURSES AND ALLIED PROFESSIONALS (KENT HOSPITAL) 485 The Court then went on to say, however: Where as here, the challenged lobbying activities relate not to the ratification or implementation of a dissenter’s collective- bargaining agreement, but to financial support of the employ- ee’s profession or of public employees generally, the connec- tion to the union’s function as bargaining representative is too attenuated to justify compelled support by objecting employ- ees. The Court concluded that because none of the charged activities were shown “to be oriented toward the ratification or imple- mentation” of the collective-bargaining agreement, they could not be supported by the funds of objecting employees. In Locke, also a public sector case, the local union charged nonmembers at the local union a service fee that reflects an affiliation fee that it pays to its national organization. The non- members challenged these service fees on the ground that they did not directly benefit the local union. The Court, citing Lehnert, found the service charge valid, stating, inter alia: We focus upon one portion of that fee, a portion that the na- tional union uses to pay for litigation expenses incurred in large part on behalf of other local units . . . we conclude that under our precedent the Constitution permits including this element in the local’s charge to nonmembers as long as (1) the subject matter of the (extra-local) litigation is of a kind that would be chargeable if the litigation were local, e.g., liti- gation appropriately related to collective bargaining rather than political activities, and (2) the litigation charge is recip- rocal in nature, i.e., the contributing local reasonably expects other locals to contribute similarly to the national’s resources used for costs of similar litigation on behalf of the contrib- uting local if and when it takes places. In Fell, the court had to determine whether the union’s charges for its merger with ALPA were “germane” and proper- ly chargeable expenses. The union was concerned that Conti- nental Airlines, whose pilots it represented, would merge with another airline, possibly one whose pilots were represented by ALPA. As this might have resulted in the union’s members losing seniority status, the union attempted to preempt the sit- uation by affiliating with ALPA and charged its nonmembers for this expense. The court found the expenditures for the mer- ger should be considered “germane” and chargeable: Clearly, protecting pilots’ seniority, which Plaintiff himself considers to be one of the most important aspects of his em- ployment, is an undertaking “reasonably employed” to effec- tuate the union’s duties as exclusive bargaining representative. The legality of the Union’s charges for lobbying these bills in Rhode Island and Vermont must be determined on the basis of Lehnert, Locke, and Fell. I find that the subject matter of the Hospital Merger Accountability Act (Jt. Exh. 6) and the Hospi- tal Payments Act (Jt. Exh. 12) were germane to the Union’s duty as the collective-bargaining representative of certain em- ployees in the state, and are therefore properly chargeable to the objecting nonmembers. The Hospital Merger Act would have given the Union some say in whether hospitals in the State could merge their operations, which would have an effect on the bargaining strength and position of the parties. Clearly, the Hospital Payments Act, which if passed would have given an additional $1300 to two hospitals whose employees the Union represents and would have loosened those employers’ purse strings to the benefit of the employees. On the other hand, I find that the Rhode Island Retirement Pension Act (Jt. Exh. 7) and the Center for Health Professional Act (Jt. Exh. 11), while well intentioned, were not germane to the Union’s collective- bargaining obligations and were therefore not chargeable to the objecting nonmembers. Of the three Vermont bills that the Union lobbied for, I find that only the bill that would have pro- vided for mental health care funding was germane and chargea- ble. The contract for Retreat Healthcare, whose employees the Union represented, provides for a reopener if the state provided the employer with “new money.” That would clearly be ger- mane to the Union and the employees. The other two bills, which were lobbied for the health and safety of the represented employees, and is to be commended for that reason, however was not germane to collective bargaining and therefore is not chargeable to the objecting nonmembers. CONCLUSIONS OF LAW 1. The Employer has been engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and a health care institution within the meaning of Section 2(14) of the Act. 2. The Union has been a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Union violated Section 8(b)(1)(A) of the Act by charging objecting nonmembers of the Union for lobbying activities involving the following bills before the States of Rhode Island and Vermont: (a) Bill Relating to Public Officers and Employees- Retire- ment System—Contributions and Benefits (Jt. Exh. 7). (b) Bill Relating to Health and Safety—Center for Health Pro- fessionals Act (Jt. Exh. 11). (c) The three bills before the Rhode Island General Assembly related to health and safety that the Union admits should not have been charged to the objecting nonmembers (Jt. Exhs. 8, 9 and 10). (d) The bills before the Vermont legislature that would have required certain hospitals to purchase equipment to assist em- ployees in lifting and moving patients, and to prohibit certain mandatory overtime work for certain health care employees. THE REMEDY Having found that the Respondent has unlawfully charged its nonmember objectors for certain lobbying costs incurred in the States of Rhode Island and Vermont, I recommend that it be ordered to reimburse those individuals for those charges and post a notice to that effect at each of its local offices, as well as mailing a copy of the notice to each of its nonmember objec- tors. [Recommended Order omitted from publication.]