Commercial Workers Local 4

National Labor Relations Board - Board Decisions

Aug 26, 2010

355 N.L.R.B. 634 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 133
634
United Food and Commercial Workers Union, Local
4, affiliated with United Food and Commercial
Workers Union and Pamela Barrett. Case 19–
CB–9660
August 26, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
On October 31, 2008, the two sitting members of the
Board issued a Decision and Order in this proceeding,
which is reported at 353 NLRB 469, as modified by the
January 21, 2009 unpublished order.1 Thereafter, the
General Counsel filed an application for enforcement in
the United States Court of Appeals for the Ninth Circuit.
On June 17, 2010, the United States Supreme Court is-
sued its decision in New Process Steel, L.P. v. NLRB,
130 S.Ct. 2635, holding that under Section 3(b) of the
Act, in order to exercise the delegated authority of the
Board, a delegee group of at least three members must be
maintained. Thereafter, the court of appeals remanded
this case for further proceedings consistent with the Su-
preme Court’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
2 Consistent with the Board’s general practice in cases remanded
from the courts of appeals, and for reasons of administrative economy,
the panel includes the members who participated in the original deci-
sion. Furthermore, under the Board’s standard procedures applicable to
all cases assigned to a panel, the Board Members not assigned to the
panel had the opportunity to participate in the adjudication of this case
at any time up to the issuance of this decision.
The Board has considered the judge’s decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and conclu-
sions and to adopt the recommended Order to the extent
and for the reasons stated in the decision reported at 353
NLRB 469, as modified by the January 21, 2009 unpub-
lished Order, which is incorporated by reference.3

3 Member Becker writes separately to express the view that the
Board should consider, in an appropriate case, whether the Board’s
holding in Television Artists AFTRA (KGW Radio), 327 NLRB 474
(1999), should be read to permit the financial disclosure in a union’s
notice to be verified by an audit that relies on expenditure information
provided by the union to the Department of Labor (DOL) in satisfaction
of the union’s financial disclosure obligations under the Labor Man-
agement Reporting and Disclosure Act. See 29 U.S.C. Sec. 431. The
Board held in KGW Radio that the auditor must independently verify
“that the expenditures claimed were actually made” rather than accept
“the representations of the union.” Id. at 477. A union’s statutorily
required report to the DOL is more than the mere “representations of
the union,” however, as it must be signed by a union’s president and
treasurer (or corresponding principal officers) who are subject to crimi-
nal and civil penalties for false reporting and filing violations. See 29
U.S.C. Secs. 431(b), 439, and 441. Sound Federal labor policy should
seek, if possible, to reconcile the overlapping financial disclosure re-
quirements that different Federal statutes impose on unions in order to
fully fulfill the purposes of the disclosure requirements while not im-
posing unnecessary burdens on unions, particularly small, local unions,
which may detract from their ability to fully and vigorously fulfill their
duty to fairly represent employees.