United States Court of Appeals For the First Circuit
Nos. 19-1490, 19-1602
UNITED NURSES & ALLIED PROFESSIONALS,
Petitioner, Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent, Cross-Petitioner,
JEANNETTE GEARY,
Intervenor.
PETITION FOR REVIEW OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD AND CROSS-PETITION FOR ENFORCEMENT
Before
Kayatta, Circuit Judge, Souter,* Associate Justice, and Selya, Circuit Judge.
Christopher Callaci for petitioner, cross-respondent. Milakshmi V. Rajapakse, Attorney, National Labor Relations Board, with whom Julie Brock Broido, Supervisory Attorney, Peter B. Robb, General Counsel, Alice B. Stock, Associate General Counsel, and David Habenstreit, Acting Deputy Associate General Counsel, were on brief, for respondent, cross-petitioner. Glenn M. Taubman, with whom Aaron B. Solem and National Right to Work Legal Defense Foundation, Inc. were on brief, for intervenor.
* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. September 15, 2020 KAYATTA, Circuit Judge. United Nurses and Allied
Professionals ("the Union") is the exclusive bargaining
representative of nurses and other employees at the Rhode Island
hospital where Jeanette Geary works as a nurse. Geary, who is no
longer a member of the Union, has challenged the Union's decision
to charge her for some of its 2009 lobbying expenses and to refuse
her a letter verifying that its expenses were examined by an
independent auditor. The National Labor Relations Board ("the
Board") agreed with Geary, ruling that lobbying expenses are
categorically not chargeable to objecting employees and requiring
the Union to provide Geary with an audit verification letter. The
Union petitioned for review of the decision. For the following
reasons, we deny the petition and grant the cross-petition for
enforcement of the challenged order.
I.
The Union is a group of fifteen local unions in Rhode
Island, Vermont, and Connecticut. One of the hospitals for which
the Union is nurses' exclusive bargaining representative is an
acute-care hospital in Warwick, Rhode Island. In late September
2009, Jeannette Geary and others at that hospital resigned
membership in the Union and objected to dues for activities they
claimed were unrelated to collective bargaining, contract
administration, or grievance adjustment. The Union lowered the
objectors' fees but still required them to contribute to covering
- 3 - expenses for lobbying for several bills in the Vermont and Rhode
Island legislatures. The Union reported in writing that its
expenses had been verified by an independent auditor, but the Union
declined to provide a verification letter from the auditor. Geary
brought her complaint to the Board.
II.
A.
The primary issue in this proceeding is whether the
Union's lobbying expenses are properly chargeable to the
dissenting nurses. The Board determined that the dissenting nurses
should not have to pay for any of the Union's lobbying expenses,
reasoning that "relevant Supreme Court and lower court precedent
compel[led] holding [that] lobbying costs are not chargeable as
incurred during the union's performance of statutory duties as the
objectors' exclusive bargaining agent." United Nurses and Allied
Professionals (Kent Hospital), 367 N.L.R.B. No. 94, at *7 (2019).
The Union contends that the Supreme Court has never adopted such
a bright-line rule in interpreting the National Labor Relations
Act of 1935 ("NLRA"), 29 U.S.C. §§ 151–69, and asks us to overturn
the Board's decision.
When presented with the Board's rational choice between
two reasonable interpretations of the NLRA, we defer to the Board's
chosen interpretation. See Fall River Dyeing & Finishing Corp. v.
NLRB, 482 U.S. 27, 42 (1987) ("If the Board adopts a rule that is
- 4 - rational and consistent with the Act, then the rule is entitled to
deference from the courts." (citations omitted)). In this case,
though, the Board has made no claim to have brought to bear its
authority and expertise to resolve an ambiguous law. Rather, it
determined that it had no choice in the matter because both Supreme
Court and lower court precedent "compel[led]" the Board to rule as
it did, obviating, for example, any need for the Board to explain
prior agency decisions arguably contrary to the rule applied in
this case.1 As we have previously explained, we are "not obligated
to defer to an agency's interpretation of Supreme Court precedent."
NLRB v. U.S. Postal Serv., 660 F.3d 65, 68 (1st Cir. 2011) (quoting
N.Y., N.Y., LLC v. NLRB, 313 F.3d 585, 590 (D.C. Cir. 2002)). We
therefore conduct de novo our own review of the precedent that the
Board found compelling. See id.
The core principles at play here come from
Communications Workers v. Beck, in which the Supreme Court
clarified that employees have the right to refuse to pay union
fees for activities other than those "necessary to '[the union's
performance of] the duties of an exclusive representative of the
1 Cf. Transport Workers, 329 N.L.R.B. 543, 544–45 (1999) (finding chargeable certain activities involving communication with government entities, including telephone calls and other conversations with Air Force and NASA Labor Relations personnel about working conditions and other representation issues, where the employer was a contractor and the employees were contracted to work at the Air Force or NASA).
- 5 - employees in dealing with the employer on labor-management
issues.'" 487 U.S. 735, 762–63 (1988) (quoting Ellis v. Bhd. of
Ry., Airline & S.S. Clerks, 466 U.S. 435, 448 (1984) (evaluating
a parallel provision of the Railway Labor Act)); see also id. at
745 (asking whether charges are permitted for "activities beyond
those germane to collective bargaining, contract administration,
and grievance adjustment.").
The expenses found to be nonchargeable by the circuit
court in Beck included those for "lobbying efforts." Beck v.
Commc'ns Workers, 776 F.2d 1187, 1210–11 (4th Cir. 1985), aff'd.
487 U.S. at 742. But the record made clear that the Union made no
attempt to show that the lobbying was germane to collective
bargaining. Id. at 1211. Indeed, the special master's conclusion
as affirmed by the Fourth Circuit suggested that some types of
lobbying, not at issue in Beck, might be chargeable. Id.
(approving a special master's determination that, while "there
might have been some areas" in which "'lobbying' would have some
relevance" to collective bargaining, the union "had made no effort
to identify any such permissible 'lobbying activities'"). So
Beck's ultimate affirmance of the lower court ruling, 487 U.S. at
742, provides us with no rule categorically dealing with lobbying
expenses.
While Beck provides the only Supreme Court holding
evaluating the chargeability of lobbying expenses in the context
- 6 - of private-employer unions governed by the NLRA, the Court's
earlier decision interpreting the Railway Labor Act in
International Association of Machinists v. Street can be read as
perhaps categorically treating as nonchargeable amounts spent "to
support candidates for public office, and advance political
programs." 367 U.S. 740, 768 (1961); see id. at 744 & n.2, 768–
70 (discussing funds used to "promote legislative programs" and
determining that the Railway Labor Act did not allow unions to use
non-members' fees "to support political causes objected to by the
employee"). By 1963, however, the Court did not seem to presume
that it had already limned a clear boundary between political
expenses and those germane to collective bargaining. See Bhd. of
Ry., Airline & S.S. Clerks v. Allen, 373 U.S. 113, 121 (1963)
(declining in a Railway Labor Act case to "attempt to draw the
boundary between political expenditures and those germane to
collective bargaining" where the courts below had declined to do
so). And to the extent that boundary is more of an overlap
consisting of expenses that can be called both political and
germane to collective bargaining, the court offered no view in
either case, or subsequently in Beck, on how to resolve the
conflict.
There are several Supreme Court cases addressing the
chargeability of lobbying expenses by public-sector unions. See,
e.g., Lehnert v. Ferris Fac. Ass'n, 500 U.S. 507, 520 (1991)
- 7 - (explaining that when "challenged lobbying activities relate not
to the ratification or implementation of a dissenter's collective
bargaining agreement, but to financial support of the employee's
profession or of public employees generally, the connection to the
union's function as bargaining representative is too attenuated to
justify compelled support by objecting employees"); Abood v.
Detroit Bd. of Educ., 431 U.S. 209, 235–36 (1977) (holding that
objecting non-members could not be compelled to pay agency fees
for "the advancement of other ideological causes not germane to
[the union's] duties as collective-bargaining representative").
These holdings distinguishing chargeable from nonchargeable
lobbying expenses incurred by public-sector unions no longer serve
their intended purpose in the public-sector context, because the
Supreme Court more recently decided that public-sector unions
cannot require nonmember employees to pay any expenses at all.
See Janus v. Am. Fed'n of State, Cnty., & Mun. Emps., 138 S. Ct.
2448, 2486 (2018). The parties in this case nevertheless cite to
and rely on pre-Janus public-sector lobbying cases as analogous
authority for their respective positions.2 And indeed, there is
2 Thus, the Board points to Harris v. Quinn, 573 U.S. 616, 636–37 (2014), and Lehnert as supporting its position that "relevant Supreme Court . . . precedent compels holding that lobbying charges are not chargeable as incurred during the union's performance of statutory duties as the objectors' exclusive bargaining agent." The Union on the other hand cites to the same cases to back up its argument that lobbying may sometimes be a part of collective bargaining. See Harris, 573 U.S. at 636–37
- 8 - nothing in Janus that purports to reject or modify Abood's
assumption that some lobbying might be at least germane to
collective bargaining by public-sector unions. See Janus, 138 S.
Ct. at 2486 (explaining that Abood should be overruled given "that
Abood's proponents have abandoned its reasoning, that the
precedent has proved unworkable, that it conflicts with earlier
First Amendment decisions, and that subsequent developments have
eroded its underpinnings [seeking to promote labor peace and avoid
free riders]" but saying nothing about the conceptual possibility
that some lobbying could be germane to bargaining); see also Abood,
431 U.S. at 236 ("The process of establishing a written collective-
bargaining agreement prescribing the terms and conditions of
public employment may require not merely concord at the bargaining
table, but subsequent approval by other public authorities;
related budgetary and appropriations decisions might be seen as an
integral part of the bargaining process.").
We therefore consider the pre-Janus public-sector
Supreme Court cases, but with a recognition that the concerns
arising from compelled union fees differ markedly in the public
(explaining that "both collective-bargaining and political advocacy and lobbying are directed at the government"); Lehnert, 500 U.S. at 519–20 ("To 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.").
- 9 - sector as compared to the private sector. On one hand, the Supreme
Court has been clear that in the public sector, acting as a
collective-bargaining representative often necessarily involves
interaction with government officials in a way that is not often
necessary in the private sector. Lehnert, 500 U.S. at 520
("Public-sector unions often expend considerable resources in
securing ratification of negotiated agreements 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 implementation.
. . . The dual roles of government as employer and policymaker in
such cases make the analogy between lobbying and collective
bargaining in the public sector a close one." (citations omitted)).
On the other hand, the concerns about government-compelled
political speech that dominate the question in the public-sector
context, see Janus, 138 S. Ct. at 2478, are less potent in the
private-sector context.
The element common to both private- and public-sector
caselaw regarding the chargeability of union expenses is a focus
on the relationship between the expenses and the union's
performance of its duties as the exclusive bargaining agent for
all the employees. See Lehnert, 500 U.S. at 519 (requiring that
chargeable activities be "germane to collective-bargaining
activity" (internal quotation marks omitted)); Beck, 487 U.S. at
- 10 - 745 (holding that non-members could not be charged "to support
union activities beyond those germane to collective bargaining,
contract administration, and grievance adjustment"); Abood, 431
U.S. at 235–36 (holding that unions may not charge non-members for
"the advancement of . . . ideological causes not germane to its
duties as collective-bargaining representative").
The caselaw asks not whether challenged expenses are
"incurred during" bargaining or the performance of other statutory
duties, as the Board asked in this case, but whether the expenses
are "necessary" for or "germane to" those duties. Beck, 487 U.S.
at 745, 762–63. Further, the cases make clear that activities for
which expenses are chargeable may consist of more than direct
dealing and negotiation with employers. See, e.g., Ellis, 466
U.S. at 448–55 (in the context of the Railway Labor Act finding
expenses chargeable for a national convention "at which the members
elect officers, establish bargaining goals and priorities, and
formulate overall union policy," "refreshments for union business
meetings and occasional social activities," and publications
including "articles about negotiations, contract demands, strikes,
unemployment and health benefits, . . . and recreational and
social activities," excluding the pro rata costs of any lines in
the publications devoted to political issues).
We do agree with the Union that there is no conceptual
reason for concluding that lobbying by a private sector union could
- 11 - never be necessary to the union's performance of its collective
bargaining duties. To illustrate, in collective bargaining the
Union could attempt to secure a wage increase or other benefit
contingent on the employer's receipt of revenues to fund the
increase or benefit. In this very case, for example, the Union
lobbied for a bill in Rhode Island that would have increased state
payments to certain acute-care hospitals, which payments it
believed one hospital would necessarily have to turn over at least
in part to nurses per the terms of the applicable collective
bargaining agreement. Similarly, in Vermont the Union lobbied for
a bill to increase mental health care funding, which it believed
would make more funds available for wages (and which it committed
to lobbying for in the relevant collective bargaining agreements).
Were those funds coming from a private source, we see no obvious
reason why the Union might not reach out to urge that source to
deal with the employer, especially if the Union had some influence
with the source. The Board in turn points to no reason why the
expense of trying to help the employer secure payment to fund
success at the bargaining table would not be germane to collective
bargaining. That same expense aimed at influencing the source of
funds would likely be called "lobbying" if the source, as here,
were the government. And such expenses would become no less
germane merely because the source of funding might be the
government. So we are indeed left to conclude that, in theory,
- 12 - there exist instances in which an expense could reasonably be
called both a form of lobbying and germane to collective
bargaining. And nothing in the Supreme Court's actual holdings
compels us to conclude either that such expenses are properly
chargeable to dissenters, or not.
There is, though, the following statement in Lehnert:
[Street, Allen, and Ellis] make clear that expenses that are relevant or "germane" to the collective-bargaining functions of the union generally will be constitutionally chargeable to dissenting employees. They further establish that, at least in the private sector, those functions do not include political or ideological activities.
Lehnert, 500 U.S. at 516 (emphasis added). While dictum (because
Lehnert was a public-sector case), the above passage is Supreme
Court dictum, and it also claims a provenance in the Court's
earlier opinion in Street, which we have acknowledged can be read
as perhaps categorically treating as nonchargeable amounts spent
"to support candidates for public office, and advance political
programs" (see p. 6–7, supra). Furthermore, two decades later the
Supreme Court strongly suggested that it had drawn a "line" in the
private sector between collective-bargaining and lobbying. See
Harris v. Quinn, 573 U.S. 616, 636–37 (2014) ("In the private
sector, the line is easier to see. Collective bargaining concerns
the union's dealings with the employer; political advocacy and
lobbying are directed at the government. But in the public sector,
- 13 - both collective-bargaining and political advocacy and lobbying are
directed at the government."). Certainly, too, Janus, while
dealing only with public-sector unions, signals no increased
tolerance for the compelled funding of lobbying by non-member
dissenters in the private sector.
We are bound by the Supreme Court's "considered dicta."
McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991)
("[F]ederal appellate courts are bound by the Supreme Court's
considered dicta almost as firmly as by the Court's outright
holdings, particularly when, as here, a dictum is of recent vintage
and not enfeebled by any subsequent statement."); see also United
States v. Moore-Bush, 963 F.3d 29, 39–40 (1st Cir. 2020)
("Carefully considered statements of the Supreme Court, even if
technically dictum, must be accorded great weight and should be
treated as authoritative when, as in this instance, badges of
reliability abound." (quoting United States v. Santana, 6 F.3d 1,
9 (1st Cir. 1993))). Given the clarity of the Supreme Court's
statement in Lehnert, its basis in the Court's analysis of its
previous cases, and the suggestion in Harris that a line has been
drawn, we cannot dismiss Lehnert's dictum as anything but
"considered." It would appear, not surprisingly, that the Board
may have to accord similar deference to considered Supreme Court
dicta, see 800 River Rd. Operating Co., 369 N.L.R.B. No. 109, at
*6 n.16 (2020) ("Even if properly characterized as dicta, the
- 14 - meaning of the [Supreme] Court's language is clear, and we have
serious doubts whether the Board has the authority to 'change its
mind' in contravention of the Court's own mindset."). Neither
party argues to the contrary.
Applying Lehnert's considered dictum to this case, we
see no convincing argument that legislative lobbying is not a
"political" activity -- at least as conducted here. See Political,
Merriam-Webster Unabridged Dictionary,
https://unabridged.merriam-webster.com/unabridged/political (last
visited Sept. 10, 2020) (defining "political" as "of or relating
to government, a government, or the conduct of governmental
affairs"); see also Lobby, Merriam-Webster Unabridged Dictionary,
https://unabridged.merriam-webster.com/unabridged/lobbying (last
visited Sept. 10, 2020) (defining "lobby" as "to conduct
activities (as engaging in personal contacts or the dissemination
of information) with the objective of influencing public officials
and especially members of a legislative body with regard to
legislation and other policy decisions"). And in fact, the Supreme
Court in Harris grouped "lobbying" with "political advocacy" as a
presumably nonchargeable "activity directed at the government."
Harris, 573 U.S. at 636.
There is added reason that may well inform Lehnert's
categorical rejection of charging dissenters for lobbying expenses
in private-sector unions. The best case for charging such expenses
- 15 - would apply very rarely in the private sector precisely because
the government is not the employer with whom the union bargains.
A more flexible approach that nevertheless made room for charging
such expenses only when the nexus to bargaining was especially
clear would apply with little frequency, and would come with no
easy-to-apply objective measure. As a result, the transaction
costs of establishing the chargeability of such expenses would
likely outweigh the amounts involved. Furthermore, in the ordinary
case, the dissenting employees would lack the resources to press
their objections. Unions, in turn, would be tempted to press the
margins, figuring that sustained opposition might be unlikely.
There is thus a certain practicality to drawing a brighter line,
as Lehnert suggests and as the Board did here.3
Finally, the Board's decision also appears to be in
accord with the decision of the only other circuit to address the
issue at hand. See Miller v. Air Line Pilots Ass'n, 108 F.3d 1415,
1422–23 (D.C. Cir. 1997) (employing a different analysis but
arriving at the same result, a "line between . . . collective
3 We cite this practicality as a reason to take Lehnert's dictum at face value. We do not rely on it as an alternative basis -- not adopted by the Board, though employed at oral argument by its counsel -- for sustaining the Board's ruling even if the caselaw left room for the Board to rule either way. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) ("[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.").
- 16 - bargaining expenditures and those relating to the union's
government relations," reasoning that "[i]f there is any union
expense that . . . must be considered furthest removed from
'germane' activities, it is that involving a union's political
actions").
Of course, the Supreme Court is not bound by its own
dicta. And as our foregoing discussion illustrates, the Court
might well regard its actual holdings and reasoning as leaving
room for the Board to interpret the statute either way. Unless
and until the Court does so, however, we must regard the matter as
settled.4 We uphold the Board's decision on the Union's lobbying
expenses.
B.
The Union also petitions for review of the Board's
determination requiring it to provide Geary a letter signed by an
auditor verifying that the financial information disclosed to the
objectors had been independently audited (the "audit verification
letter"). In Chicago Teachers Union v. Hudson, the Supreme Court
held that "basic considerations of fairness . . . dictate that the
potential objectors be given sufficient information to gauge the
4 Our agreement with the Board that the Supreme Court's decisions compel the Board's ruling that expenses germane to collective bargaining do not include lobbying eliminates any need to consider the Union's argument that the Board abused its interpretative discretion by failing to acknowledge that it was changing Board policy.
- 17 - propriety of the union's fee." 475 U.S. 292, 306 (1986).5 The
Board had determined well before it decided this case that, under
Hudson, union expenditures provided to objecting employees must be
verified by an independent audit. See United Food & Com. Workers
Union, 363 N.L.R.B. No. 127, at *4 (2016); Am. Fed'n of Television
& Rec'g Artists, 327 N.L.R.B. 474, 476 (1999). The Union does not
challenge that baseline requirement. Instead, the Union argues
that the additional requirement of providing a letter verifying
that the audit took place is unreasonable.
The Board's conclusion here reasonably applied and
extended the Hudson standard. As the Board pointed out, providing
an audit verification letter to objecting employees avoids
"requiring [employees] to accept the union's bare representations
that the figures were appropriately audited." See Cummings v.
Connell, 316 F.3d 886, 892 (9th Cir. 2003) (requiring the same and
reasoning that an auditor's certification "that the summarized
figures have indeed been audited and have been correctly reproduced
from the audited report" would allow the objectors to rely safely
on the union's figures). At oral argument, counsel for the Union
acknowledged that the additional step of providing a letter
5 Although Hudson was a public-sector case and not an NLRA case, the Board has applied it to its analyses of unions' statutory duty of "fair representation" under NLRA § 8(b)(1)(A). See Cal. Saw & Knife Works, 320 N.L.R.B. 224, 233 (1995) (citing Abrams v. Commc'ns Workers, 59 F.3d 1373, 1379 n.7 (D.C. Cir. 1995)). Neither party contests Hudson's applicability to the issue here.
- 18 - verifying the audit would cause no harm to a union, and of course
the additional step might save both parties litigation costs. As
a result, we see no reason why the Board erred in adopting a
requirement that such an audit verification letter be included in
the "information" to be supplied objectors under Hudson. Nor does
the fact that no one in this case apparently had any reason to
doubt the accuracy of the Union's factual assertions concerning
both its expenditures and its audit give us pause. "Trust but
verify" is a reasonable approach for the Board to take, especially
when the Union can cite no good reason for not supplying an audit
verification letter to confirm that an audit has been performed as
claimed. See Fall River Dyeing & Finishing Corp., 482 U.S. at 42
("If the Board adopts a rule that is rational and consistent with
the Act, then the rule is entitled to deference from the courts."
(citations omitted)).
The Union argues, alternatively, that even if we uphold
the Board's ruling that unions must supply an audit verification
letter as part of the information to be supplied under Hudson, it
would be unfair -- that is, a manifest injustice -- to apply this
rule to the Union in this very case.6 New rulings most often do
6 The Board argues that, by not raising it before the Board, the Union waived its retroactivity argument. Under section 10(e) of the NLRA, 29 U.S.C. § 160(e), "[n]o objection that has not been urged before the Board . . . shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." The Union,
- 19 - apply to the parties in the case in which the rule is adopted.
See SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) ("Every case of
first impression has a retroactive effect . . . .").
To identify exceptions, the Board considers: (1) the
parties' reliance on preexisting law, (2) the "effect of
retroactivity on accomplishment of the purpose of the Act," and
(3) "any particular injustice arising from retroactive
application." Graymont PA, Inc., 364 N.L.R.B. No. 37, at *11
(2016). Here, the Union claims to have relied on preexisting law
in refusing to provide the letter but points to no law clearly
indicating that it need not produce the letter. See, e.g.,
Teamsters Local 75, 329 N.L.R.B. No. 12, at *30 (1999) (explaining
that "[t]he Union's duty of fair representation . . . is met if it
supplies its major categories of expenditures and supplies
verified figures," but not clarifying whether or how a union might
be required to show that the figured are indeed verified). The
argument in favor of producing the audit verification letter --
described above -- was certainly foreseeable. Hoping that one
wins a contested issue is hardly the type of reliance that provides
though, did argue in front of the Board that requiring an audit verification letter would amount to a new rule. Whether that contention preserved the retroactivity argument, we need not decide, given our finding that the argument fails. Cf. Seale v. INS, 323 F.3d 150, 155–57 (1st Cir. 2003) (explaining that we may bypass the question of statutory jurisdiction where there is a clear answer on the merits).
- 20 - cause for not applying a ruling to the case in which it is issued.
On the second factor, we acknowledge -- as the Union points out --
that no party has contended that Geary was unable to decide which
expenses to challenge without the audit verification letter, nor
does there appear to be any dispute as to whether the expenses
actually were verified by an independent audit in this case. On
the other hand, however, the Union has clearly acknowledged that
it will suffer no injury at all by providing the audit verification
letter. And the audit verification letter would clearly further
the purposes of the NLRA, as described above. For those reasons,
we find no injustice in the Board's application of its ruling in
this case to the parties in this case.
Lastly, the Union argues that we may not reach the audit
verification issue at all because it was not raised in Geary's
amended complaint. This is untrue. That complaint alleges:
"Since on or about September 30, 2009, Respondent has failed to
provide Geary and other similarly situated employees with evidence
beyond a mere assertion that the financial disclosure . . . was
based on an independently verified audit."
III.
For the reasons explained above, we uphold the Board's
decision on the lobbying expenses. On the issue of the audit
verification letter, we uphold the Board's decision. Consequently,
- 21 - we deny the Union's petition for review in its entirety and grant
the Board's cross-petition for enforcement.
- 22 -