Ninth Circuit Chips Away at Beck Rights

On Mar. 25 an eleven-judge panel representing the the full U.S. Court of Appeals for the Ninth Circuit chipped away at the Supreme Court’s landmark union dues decision, CWA v. Beck. The Ninth Circuit ruled that organizing costs may be included in the agency fees charged to nonmembers covered by a collective bargaining agreement’s union-security clause, Mar. 25, upholding a 4-1 Nat’l Labor Relations Bd. decision. Circuit Judge Stephen R. Reinhardt (9th Cir., Carter), who is a ex-union attorney and ex-executive committee member of the Democratic Nat’l Committee, wrote for the court that a union “is permitted to charge all employees, members and nonmembers alike, the costs involved in organizing, at least when organizing employers within the same competitive market as the bargaining unit employer,”

A three-judge panel of the appeals court in May 2001 overturned NLRB’s decision, applying the U.S. Supreme Court’s decision in a Railway Labor Act case that a union cannot charge nonmembers for the union’s organizing activity outside of the bargaining unit. However, the full court voted to rehear the case. Eleven of the approximately 45 Ninth Circuit judges represented the full court. Judge Kim M. Wardlaw (9th Cir., Clinton), the one judge from the three-judge panel who also participated in the en banc ruling, changed sides.

The Nat’l Right to Work Legal Def. Foundation Inc., which represented the nonmembers in the case, said it will ask the U.S. Supreme Court to review the case.  “No worker should be forced to fund the recruitment of  supporters to a private ideological cause,” said NRTWLDF’s Stefan Gleason. “This ruling is an outrageous  affront to employee freedom and previous rulings of  the U.S. Supreme Court.”

United Food & Commercial Workers Local 7-R in Denver and Local 951 in Grand Rapids, Mich. are the exclusive bargaining representatives of two units of employees. Certain nonmembers claimed it was an unfair labor practice for the unions to charge them for organizing costs. NLRB in Sept. 1999 ruled that “at least with respect to organizing within the same competitive market as the bargaining unit employer,” organizing is germane to collective bargaining. The board found that “there is a direct, positive relationship between the wage levels of union-represented employees and the level of organization of employees of employers in the same competitive market.”  The new Ninth Circuit decision enforced NLRB’s interpretation of the Nat’l Labor Relations Act against the employees.

Circuit Judges Mary M. Schroeder (9th Cir., Carter), Harry Pregerson (9th Cir., Carter), Alex Kozinski (9th Cir. Reagan), Thomas G. Nelson (9th Cir., H.W. Bush), A. Wallace Tashima (9th Cir., Clinton), Sidney R. Thomas (9th Cir., Clinton), Barry G. Silverman (9th Cir., Clinton), Wardlaw, William A. Fletcher (9th Cir., Clinton), and Raymond C. Fisher (9th Cir., Clinton) joined in the decision. James B. Coppess of the AFL-CIO in Washington, D.C., represented Locals 7 and 951. Steven Goldstein in Washington, D.C., represented NLRB. Glenn Taubman and Richard J. Clair of the NRTWLDF represented the employees. [BNA 3/26/02; NRTWLDF 3/25/02]