UFCW & NLRB Loose Appeal of Dues Case

U.S. Court of Appeals for the Ninth Circuit held May 17 that unions may not include organizing costs in determining the agency fees nonmembers must pay under a union-security clause in a collective bargaining contract. Reversing a 1999 decision by the Nat’l Labor Relations Bd., the court found that the U.S. Supreme Court has already ruled in a case under the Railway Labor Act (Ellis v. Bhd. of Ry., Airline, & S.S. Clerks, 466 U.S. 435 (1984)) that a union cannot charge nonmembers for the union’s organizing activity outside of the bargaining unit. The case arose from objections filed with United Food & Commercial Workers Locals 7, 951, & 1036 by nonmember agency-fee payers in bargaining units in Cal., Col., & Mich. covered by bargaining agreements containing a union-security clause.

The Ninth Circuit rejected NLRB’s attempt to distinguish the Ellis case from Communications Workers of Am. v. Beck (487 U.S. 735 (1988)), a case decided under the Nat’l Labor Relations Act that found objecting nonmembers can only be charged agency fees for union activities related to collective bargaining, contract administration, and grievance adjustment. The appeals court found that Beck had ruled that section  of RLA and a section 8(a)(3) of NLRA (which authorize union security agreements) have the same meaning in both statutes.

Judge John T. Noonan, wrote the opinion and noted that NLRB had presented a case for “rethinking the Ellis-Beck equivalence” of two sections. However, he wrote, NLRB “does not have the power to reverse the Supreme Court…Accordingly, its order must be vacated, and the case returned to it for an order upholding the rights of the petitioners.”

Judge M. Margaret McKeown joined in the opinion and Judge Kim McLane Wardlawn wrote a concurring opinion. Glen M. Taubman & Richard J. Clair of the Nat’l Right to Work Legal Def. Fdn. represented the union members. Fred L. Cornnell & Steven B. Goldstein represented the NLRB. David A. Rosenfeld of Van Bourg, Weinberg, Roger & Rosenfeld in Oakland, Cal., represented UFCW Local 1036. James B. Coppess of the AFL-CIO, represented UFCW Locals 7 & 951. [BNA 5/18/01 (citing UFCW Local 1036 v. NLRB)]