In United Nurses and Allied
Professionals (Kent Hospital), a divided Board addressed a number of issues
regarding the rights of objecting employees. Among other things, it held that a
union is not required to provide objecting employees with a copy of the
auditor's verification letter in order to satisfy its notice obligations under
California Saw. In this EIA, the author provides insight on this decision.
In California Saw &
Knife Works, the National Labor Relations Board ("Board") held
that a union must provide an objecting employee with the percentage amount of
dues reduction to which the employee is entitled, the basis for the
calculation, and the right to challenge the union's figures. Further:
To ascertain whether the information provided to objectors satisfie[s] the
union's duty of fair representation, the Board [assesses] whether the
information [is] sufficient to enable objectors to determine whether to
challenge the union's dues-reduction calculations. United Nurses & Allied Prof'ls (Kent Hosp.), 359 NLRB No. 42 (Dec. 14, 2012) (footnote omitted) (citing California Saw, 320 N.L.R.B. at 233)
Subsequently, in Television Artists AFTRA (KGW Radio), the Board held
that a union violated the Act by failing to have the financial information on
which it based its calculation of the dues percentage reduction verified by an
independent auditor, but did not reach the issue of whether a union would be
required to provide objectors with the verification letter from the auditor.
In Cummings v. Connell, the Ninth Circuit reached the issue of a union's
obligation to provide the auditor's verification letter. It affirmed the
holding of the lower court that a union's notice to objecting employees was
deficient because, inter alia, it failed to provide independent
verification of the audit:
We find that [CSEA's] notice did not satisfy the dictates of [Chicago
Teachers Union Local 1 v.] Hudson[, 475 U.S. 292 (1986)]. 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. Hudson did not say merely that the expenditures must be
audited, but that "adequate disclosure surely would include ... verification
by an independent auditor." 475 U.S. at 307 n.18 (emphasis added).
Although not expressly addressing the question before us, we recently mirrored
this requirement from Hudson and explained that, although a formal audit
is not always required, "the union must provide a statement of its
chargeable and nonchargeable expenses, together with an independent
verification that the expenses were actually incurred." Harik v. Cal.
Teachers Ass'n, 298 F.3d 863, 866 (9th Cir. 2002). [footnotes
subscribers can access enhanced versions of the opinions cited in this article:
United Nurses & Allied Prof'ls (Kent Hosp.), 359 NLRB No. 42 (Dec. 14, 2012)
Television Artists AFTRA (KGW Radio), 327 N.L.R.B. 474
(1999), petition for review dismissed, 1999 NLRB LEXIS 25 (D.C. Cir.
Cummings v. Connell, 316 F.3d 886 (9th Cir. 2003)
Chicago Teachers Union Local 1 v. Hudson, 475 U.S. 292 (1986)
v. Cal. Teachers Ass'n, 298 F.3d 863 (9th Cir. 2002)
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