United Food & Commercial Workers Union, Local 1036 v. National Labor Relations Board

249 F.3d 1115, 2001 Cal. Daily Op. Serv. 3953, 2001 Daily Journal DAR 4889, 167 L.R.R.M. (BNA) 2161, 2001 U.S. App. LEXIS 9419
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 17, 2001
DocketNos. 00-70156, 99-71442, 00-70189, 99-71596 and 99-71317
StatusPublished
Cited by1 cases

This text of 249 F.3d 1115 (United Food & Commercial Workers Union, Local 1036 v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United Food & Commercial Workers Union, Local 1036 v. National Labor Relations Board, 249 F.3d 1115, 2001 Cal. Daily Op. Serv. 3953, 2001 Daily Journal DAR 4889, 167 L.R.R.M. (BNA) 2161, 2001 U.S. App. LEXIS 9419 (9th Cir. 2001).

Opinions

Opinion by Judge NOONAN; Concurrence by Judge WARDLAW

NOONAN, Circuit Judge:

In these consolidated cases, Phillip Mulder, Charles Buck, Leon Gibbons, Glenn Hilton, Rebecca McReynolds and Barbara Kipp (the petitioners) petition for review of an order of the National Labor Relations Board (the Board or the NLRB) holding that they as nonmembers of a union may be charged under union security agreements with their employers with a fee related to the union’s activity directed to organizing employees of the employers’ competitors. The Board cross-petitions for enforcement of its order. We hold that organizational activity is not necessary for the union’s performance of its duties as the exclusive representative of the employees. To require non-member employees to fund such activity is not authorized by section 8(a)(3) of the National Labor Relations Act (the NLRA), 29 U.S.C. § 158(a)(3). Accordingly, we grant the petition for review, vacate the order of the Board, and remand for entry of an order holding Locals 7 and 951 of the United Food and Commercial Workers (the UFCW), to have violated section 8(b)(1)(A) and (2) of the NLRA, 29 U.S.C. § 158(b)(1)(A) and (2), and providing a remedy for the violations.

UFCW, Local 1036 (Local 1036) petitions for review of an order of the Board holding that Local 1036 violated section 8(b)(1)(A), 29 U.S.C. § 158(b)(1)(A), by informing new employees that they were required as a condition of employment to become full members of Local 1036. The Board cross-petitions for enforcement of its order. We hold that Local 1036 did violate section 8(b)(1)(A) but that the Board’s remedial order is too broad. Accordingly, we reverse the Board and remand for the Board to draft an order better tailored to the violation.

FACTS AND PROCEEDINGS

It is uncontested that the petitioners, employees of grocery and general merchandise retail businesses having union security clauses in their respective collective bargaining agreements with locals of the UFCW, are non-members of the union who objected to paying fees for the organizing activities of the UFCW; that the union did charge nonmembers for such activities; and that the locals continued to exact the fees over the objection of the petitioners. The petitioners brought unfair labor practice charges against the respective locals.

After a trial, Administrative Law Judge William J. Pannier III dismissed the charges that Locals 7 and 951 violated section 8(b)(1)(A) of the NLRA. A divided Board sustained the dismissal. Noting testimony both by economists and by union officers, the Board found the record to contain persuasive evidence of a positive relation in the retail food industry between the unionization of employees and negotiated wage rates. When more competitors faced union wages, management was willing to negotiate. “We don’t mind paying the wages as long as everyone else is paying the same thing” was said to typify the prevalent attitude of employers. The Board concluded that the non-members benefitted from the union organizing employees of the other employers and that this activity was fairly chargeable as representational.

The NLRB acknowledged one problem in reaching its conclusion. In Ellis v. Brotherhood of Railway, Airline and Steamship Clerks, 466 U.S. 435, 452, 104 [1118]*1118S.Ct. 1883, 80 L.Ed.2d 428 (1984), the Supreme Court of the United States held that under section 2, Eleventh of the Railway Labor Act (the RLA), 45 U.S.C. § 152, Eleventh, a union was not permitted to charge non-members for the union’s organizing activity outside of the bargaining unit. Then in Communications Workers of America v. Beck, 487 U.S. 735, 745, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988), the Supreme Court held that, despite other differences in the statutory schemes, section 8(a)(3) of the NLRA and section 2, Eleventh of the RLA are “in all material respects identical.” If the Supreme Court was taken at its word, that Court had already determined that organizational expenses were not chargeable to nonunion members.

The Board met this difficulty by stating that “precedent under public sector labor law and the Railway Labor Act, although possibly providing useful guidance, is not binding in the context of the NLRA.” The Board went on to note that the Supreme Court in deciding Ellis had relied on the legislative history of the 1951 amendment that added section 2, Eleventh to the RLA. The major purpose of the RLA, to prevent strikes in the transportation industry, was different from the major purpose of the NLRA. Further distinguishing the two laws, the Board observed that when the RLA was enacted in 1926, railroad employees were already substantially organized; there was no reason for Congress to contemplate further organizing by the existing unions. Finally, the Board stated that in Ellis the only benefit to be achieved by organizing was a stronger union; here the Board found a tangible relation between increased unionization in the same industry and increased wages for all employees in the bargaining unit. The Board was satisfied that it had distinguished Ellis. As to Beck, the Board followed International Ass’n of Machinists and Aerospace Workers v. NLRB, 133 F.3d 1012, 1015 (7th Cir.), cert. denied, 525 U.S. 813, 119 S.Ct. 47, 142 L.Ed.2d 36 (1998), in holding that Beck left open what union expenditures could be charged to objectors under the NLRA.

A second issue before the Board was whether Local 1036 had violated § 8(b)(1)(A) of the NLRA by a welcome letter to new employees in which the union informed them that they were required to become full members of Local 1036 as a condition of employment and did not inform them that they had the right to be nonmembers of the union and the right not to be charged by the union for nonrepresentational activities. The administrative law judge found the letter to be a violation, and the Board agreed. As a remedy for the violation, the Board required Local 1036 to notify all bargaining unit members of their rights and to reimburse nunc pro tunc the employees subject to the union security clause after September 3, 1988 who now objected to being full union members.

The petitioners seek review of the Board’s order as to organizing expenses. Local 1036 seeks review of the Board’s order as to the welcome letter. The Board seeks enforcement of its orders.

ANALYSIS

On the main issue, the changeability of organizing expenses, the Board stands on its decision and asks us to enforce it with the deference due an administrative agency interpreting an ambiguous statute in the area of the agency’s expertise. Chevron, USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

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249 F.3d 1115, 2001 Cal. Daily Op. Serv. 3953, 2001 Daily Journal DAR 4889, 167 L.R.R.M. (BNA) 2161, 2001 U.S. App. LEXIS 9419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-food-commercial-workers-union-local-1036-v-national-labor-ca9-2001.