United Food and Commercial Workers v. N.L.R.B., 99-71317.
| Decision Date | 25 March 2002 |
| Docket Number | No. 99-71596.,No. 00-70189.,No. 99-71442.,No. 00-70156.,No. 99-71317.,99-71317.,99-71442.,99-71596.,00-70156.,00-70189. |
| Citation | 307 F.3d 760 |
| Parties | UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 1036, Petitioner, Phillip Mulder; Charles Buck; Leon Gibbons; United Food and Commercial Workers Union, Local 7; United Food and Commercial Workers Union, Local 951, Intervenors, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Glenn Hilton; United Food and Commercial Workers Union, Local 951, Respondent-Intervenor. Phillip Mulder; Glenn Hilton; Charles Buck; Leon Gibbons, Petitioners, United Food and Commercial Workers Union, Local 7; United Food and Commercial Workers Union, Local 951, Intervenors, v. National Labor Relations Board, Respondent. Rebecca McReynolds; Barbara Kipp, Petitioners, United Food and Commercial Workers Union, Local 7; United Food and Commercial Workers Union, Local 951, Intervenors, v. National Labor Relations Board, Respondent. National Labor Relations Board, Petitioner, United Food and Commercial Workers Union, Local 7; United Food and Commercial Workers Union, Local 951, Intervenors, v. United Food and Commercial Workers Union, Local 1036, Respondent. National Labor Relations Board, Petitioner, United Food and Commercial Workers Union, Local 7; United Food and Commercial Workers Union, Local 951, Intervenors, v. United Food & Commercial Workers International Union, Local 7, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David A. Rosenfeld, Van Bourg, Weinberg, Roger & Rosenfeld, Oakland, CA, for the petitioner-respondent, United Food and Commercial Workers Union, Local 1036.
James B. Coppess, AFL-CIO, Washington, DC, for the intervenors, United Food and Commercial Workers Union, Locals 7 and 951.
Steven Goldstein, for the respondent-petitioner, National Labor Relations Board.
Glenn Taubman, National Right to Work Legal Defense Foundation, Inc., for the respondents-intervenors, Phillip Mulder, Charles Buck, Leon Gibbons, and Glenn Hilton.
Richard J. Clair, National Right to Work Legal Defense Foundation, Inc., on the briefs for respondents-intervenors, Rebecca McReynolds and Barbara Kipp.
On Petition for Review of Orders of the National Labor Relations Board.
Before: SCHROEDER, Chief Judge, PREGERSON, REINHARDT, KOZINSKI, T.G. NELSON, TASHIMA, THOMAS, SILVERMAN, WARDLAW, W. FLETCHER and FISHER, Circuit Judges.
The Opinion filed March 25, 2002 is amended to include docket number 00-70189, which was inadvertently omitted from the opinion caption.
The mandate shall issue forthwith in docket number 00-70189.
The National Labor Relations Act ("NLRA" or "the Act"), as amended, establishes an elaborate and complicated structure that governs labor relations in almost all of the industries within the nation's private sector.1 Collective bargaining is the central concern of that structure, and labor unions are essential to the collective bargaining process. The Act contains a union security provision, § 8(a)(3), that helps secure the role of unions in the collective bargaining process by permitting unions and employers to enter into agreements requiring employees to become union members.2 It is the interpretation of that provision that is at issue in this case.
The union intervenors, United Food and Commercial Workers Union Locals 7 and 951, serve as the exclusive bargaining representatives for the employees of several retail food companies. Collective bargaining agreements ("CBAs") negotiated between the employers and the unions govern the terms and conditions of the employees' employment. The National Labor Relations Act, as amended, requires that an exclusive bargaining representative must represent all employees in a bargaining unit — union members and non-members alike — when bargaining for wages, benefits, and working conditions, and when resolving grievances with the employer.3 29 U.S.C. § 158(b)(2)-(3). The NLRA also permits the exclusive bargaining representative and the employer to require that all employees become dues-paying "members" of the union. NLRA § 8(a)(3). Thus all persons in the bargaining unit receive the benefits and share the economic costs of union representation. Were "free riders" able to obtain the full benefits of the union's efforts without paying their share of the costs, union membership would likely be drastically reduced and the collective bargaining system seriously undermined. Communications Workers of America v. Beck, 487 U.S. 735, 743, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988)
The Supreme Court held, in NLRB v. General Motors, 373 U.S. 734, 743, 83 S.Ct. 1453, 10 L.Ed.2d 670 (1963), that § 8(a)(3)'s "membership" requirement can be satisfied simply by the payment of the requisite dues.4 Thus, employees under a "union shop" arrangement who are required by contract to become union members, may be subjected to only one membership requirement — the payment of dues — and employees under an "agency shop" arrangement who are required by contract only to pay dues need not become union members even in form. See Marquez v. Screen Actors Guild, 525 U.S. 33, 46, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998) (). Therefore, there is no realistic difference from a legal standpoint between a union shop and an agency shop, although under a union shop the union may, if it wishes, place an employee who only pays dues on its "membership" rolls. General Motors, 373 U.S. at 743-44, 83 S.Ct. 1453. There are, however, certain limitations on the costs that members in name only — or nonmembers5 — can be compelled to bear by way of dues.6 The Supreme Court held in Communications Workers of America v. Beck, 487 U.S. at 762-63, 108 S.Ct. 2641, that nonmembers need pay "only those fees and dues necessary to `performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.'" (quoting Ellis v. Brotherhood of Railway, Airline and Steamship Clerks, 466 U.S. 435, 448, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984)). The Beck Court further characterized `necessary duties' as those functions that are "germane to collective bargaining, contract administration or grievance adjustment." 487 U.S. at 745, 108 S.Ct. 2641 (emphasis added). The issue to be decided in this case is whether or not Locals 7 and 951 violated the Beck rule by compelling nonmembers to pay their share of the costs of organizing their employers' competitors or, conversely, whether unions are permitted under the NLRA to charge nonmembers for the costs of such organizing activities. In short, is the function of organizing other employers in a competitive market germane to collective bargaining with the nonmembers' employer?
The individual petitioners in this matter are nonmembers of Locals 7 and 951, which serve as their exclusive bargaining representatives, and are employed by various employers in the retail food industry.7 They filed charges with the National Labor Relations Board ("NLRB") contending that it was an unfair labor practice for the unions to use their dues to pay for the costs of organizing. The Board dismissed the charges, relying on its decision in California Saw and Knife Works, 320 NLRB 224, 1995 WL 791959 (1995), the first case in which it was called upon to apply Beck. In California Saw, the Board held that nonmembers' dues may be used for a union's activities outside the nonmembers' bargaining unit, but only if those activities are "germane to the union's role in collective-bargaining, contract administration and grievance adjustment."8 In the present case, the Board determined, after extensive fact-finding, that "at least with respect to organizing within the same competitive market as the bargaining unit employer," organizing is germane to collective bargaining, and concluded that "[such] organizing expenses are chargeable to bargaining unit employees under the California Saw standard." United Food and Commercial Workers, 329 NLRB No. 69, 162 L.R.R.M. (BNA) 1177, 1999 WL 818607, at *6 (Sep. 30, 1999). The Board seeks enforcement of its order dismissing the petitioners' unfair labor practice charge, while the nonmembers seek review and ask us to vacate the order.
We have jurisdiction over the respective petitions under §§ 10(e) and 10(f) of the NLRA, 29 U.S.C. §§ 160(e)-(f). A panel of this court declined to enforce the Board's order, and granted the relief sought by the nonmembers, concluding that it was compelled to do so by Beck and Ellis.9 United Food and Commercial Workers Union v. NLRB, 249 F.3d 1115 (9th Cir.2001). The court convened en banc to reconsider the matter.
We now enforce the order of the Board and hold that, under § 8(a)(3) of the NLRA, a union serving as a bargaining unit's exclusive bargaining representative 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.
The NLRB is one of the defining features of the NLRA's statutory scheme. Courts are required to defer to the NLRB on statutory interpretation under Chevron, and the deference to be accorded to the NLRB in its decisions on questions of fact and policy determinations is well settled. Moreover, under the NLRA, the Board has primary jurisdiction over claims of unfair labor practices, and the claim made by the petitioners — of improper assessment and use of union dues — constitutes an unfair labor practice claim under § 8(a)(3). Beck, 487 U.S. at 742, 743, 108 S.Ct. 2641 (...
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