The full United States Court of Appeals for the Ninth Circuit recently addressed the issue of whether unions are permitted under the National Labor Relations Act (NLRA) to include in the agency shop fee charged to nonmembers the cost of organizing their employers’ competitors. (United Food and Commercial Workers Union, Local 1036 v. National Labor Relations Board, 284 F3d 1099 (9th Cir. 2002)).
Background
Several nonmembers of United Food and Commercial Workers Union, Locals 7 and 951, filed charges with the National Labor Relations Board (NLRB) alleging that the unions’ use of their dues to pay for the costs of organizing their employers’ competitors amounted to an unfair labor practice. The NLRB dismissed the charges, finding that organizing is germane to collective bargaining and that the expenses of organizing are chargeable to the bargaining unit employees.
The Appellate Decision
The Court of Appeals held that where a union serves as a bargaining unit’s exclusive bargaining representative, it “is permitted to charge all employees, members and nonmembers alike, the costs involved in organizing, at least when organizing the employers within the same competitive market as the bargaining unit employer.”
The Court emphasized that it is required to defer to the NLRB’s statutory interpretation. The statute at issue here, § 8(a)(3) of the NLRA, governs the dues that nonmembers are required to pay. However, the Court determined that § 8(a)(3) does not delineate the types of expenditures that a union can make with nonmember dues and is therefore ambiguous. The Court concluded that as long as a claim of misuse of dues does not involve their use for political purposes and only “raises the question of whether the challenged union activities are germane to collective bargaining,” it will defer to the NLRB. The Court agreed with the NLRB and found that organizing is germane to collective bargaining as organizing “may be crucial to improving the wages, benefits, and working conditions of employees in the bargaining unit.”
The Court also declined to follow court decisions that have held that organizing is not germane to collective bargaining under the Railway Labor Act (RLA). The Court determined that the RLA decisions are not applicable because, while the courts are charged with interpreting which expenditures are germane to the collective bargaining process under the RLA, primary jurisdiction to make such decisions under the NRLA is specifically left to the NLRB, not to the courts.