Forced Union Dues May Be Used for Organizing

Tuesday, March 26, 2002

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Forced Union Dues May Be Used for Organizing—Ninth Circuit

By KENNETH OFGANG, Staff Writer/Appellate Courts

Dues or agency fees that workers are compelled to pay under a collective bargaining agreement may be used for organizing activity, at least within the same industry, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

An 11-judge en banc court unanimously rejected the view of a three-judge panel, which ruled last May that organizing activity outside the immediate bargaining unit is unnecessary to the union’s role as collective bargaining representative and thus workers cannot be forced to pay for it.

That panel included Senior Judge John T. Noonan and Judge M. Margaret McKeown, who were not on the en banc court, and Judge Kim M. Wardlaw, who switched and joined with her colleagues yesterday in an opinion by Judge Stephen Reinhardt.

At issue in the case were rulings by the National Labor Relations Board, which rejected unfair labor practice charges by workers in the retail food industry who pay agency fees to locals of the United Food & Commercial Workers.

Under the NLRA, unions representing workers for a particular employer may negotiate compulsory membership clauses in labor agreements. Workers represented by the union must satisfy those clauses either by joining the union or paying an agency fee.

The fee would be an amount equal to union dues, but a series of Supreme Court decisions permit workers to deduct the percentage of its dues money that the union uses for political advocacy or for other activities considered unrelated or unnecessary to collective bargaining.

In the UFCW cases, the NLRB ruled that compulsory fees could be used for organizing “within the same competitive market,” but the workers—represented by the National Right to Work Legal Defense Committee—appealed and were successful before the three-judge panel.

Political Purposes

But Reinhardt said the board was right and the three judges who heard the case initially was wrong. Unlike cases involving the related issue of use of compulsory fees for political purposes, the judge explained, the NLRB’s rulings in this case are entitled to special deference as an agency adjudication.

The decisions, the judge went on to say, “are fully consistent with the realities of collective bargaining.”

He elaborated:

“Organizing is central to the purpose of the NLRA. It is a necessary first step to collective bargaining because without organizing, there can be no majority of union member employees who may lawfully insist that an employer bargain collectively. Because the union can only become the collective bargaining representative if enough employees agree, the initial recruitment and incorporation of new members into a nascent bargaining unit through organizing is crucial.”

Different Case

Reinhardt distinguished Ellis v. Brotherhood of Railway, Airline and Steamship Clerks, 466 U.S. 435 (1984), in which the high court held that a transportation union could not use nonmember compulsory fees for organizing.

Ellis, the judge noted, involved the Railway Labor Act, which governs transportation unions and—unlike the NLRA—is not enforced by a federal agency. The transportation industry has a separate act, Reinhardt explained, because it had a different labor structure that other industries when the act became law.

“In addition,” he explained, “Ellis involved organizing that, in contrast to the case before us, was directed in part at employers that were not in the same branch of the transportation industry as the bargaining unit employer, and even at employers that were not in the transportation industry at all.”

The case is United Food and Commercial Workers Union, Local 1036 v. National Labor Relations Board, 99-71317.