In a case that strongly upholds union rights, the full Ninth U.S. Circuit Court of Appeals reversed a lower court panel and ruled that unions - in union shops or agency shops - can charge non-members for organizing costs.

The case pitted the National Labor Relations Board and two United Food and Commercial Workers locals - one each in Michigan and Colorado - against the anti-worker National Right to Work Committee and its legal defense foundation. They financed the challenge by five 'non-member' workers covered by UFCW contracts.

The NLRB won in the March 25 ruling, as the judges said that organizing is vital to bargaining, and thus 'chargeable' to non-members in the union shop or agency shop.

'This is a very important development,' said attorney Bruce Feldacker, author of Labor Guide to Labor Law. 'This is the full circuit court upholding the NLRB. But it could be heading to the U.S. Supreme Court,' if the losers appeal, he added.

Using Beck decision
The right to work committee and the five non-members argued the Supreme Court's Beck decision meant unions could not charge them for organizing. Beck ordered unions to give non-members the right to opt out of paying for politics. But organizing is a different matter, Judge Stephen Reinhardt said for the court.

'A union serving as a bargaining unit's exclusive bargaining representative is permitted to charge all employees, members and non-members alike, the costs involved in organizing, at least when organizing employers within the same competitive market as the bargaining unit employer,' Reinhardt wrote.

He noted this case involved the agency's expertise. NLRB's intensive investigation, plus past statistical studies, showed organizing is vital to bargaining - and to results.

That's because an organized employer is less likely to bargain, or agree to higher wages and better working conditions, if the employer's competitors are unorganized, the judge said.

'Organizing is central to the purpose' of labor law, he declared. 'It is the necessary first step to collective bargaining because without organizing, there can be no majority of union member employees who may lawfully insist that an employer bargain collectively.

'Because the union can only become the collective bargaining representative if enough employees agree, the initial recruitment and incorporation of new members into a nascent bargaining unit through organizing is crucial.'

Organizing viewed as critical
Organizing competitors in the same industry and market area is also critical, Reinhardt said. It 'may be crucial to improving the wages, benefits and working conditions of employees' in the unionized company - even the wages of the non-members covered by the union shop or agency shop, he noted.

'Organizing outside the bargaining unit' - the competitors -'when successful, eliminates the competition of employers and employees based on labor conditions regarded as substandard,' Reinhardt said, quoting a 1940 Supreme Court labor law decision.

Reinhardt left to the NLRB the definition of the local market and what the germane expenses of organizing are. He said that is not an area where courts have any expertise.

'The specific question presented here - whether organizing is germane to collective bargaining - is a complex and difficult one for the layman, member of the judiciary or not,' the judge commented laconically.

Reinhardt also threw out the anti-union group's reliance on Beck by noting that case involved free speech - in a political form - in addition to union rights. This one didn't.

'Where the claim made by the non-members does not involve unions' use of dues for political purposes, but only raises the question of whether the challenged union activities are germane to collective bargaining, we defer to' the NLRB's expertise, Reinhardt said.

The anti-union group and its allied workers also tried to equate the bargaining sections of the National Labor Relations Act with the more-circumscribed bargaining sections of the older Railway Labor Act. Reinhardt threw that out, too. He noted the two laws are very different, and that the bargaining processes in general industry are very different from those in railroads and airlines. The RLA covers those two industries.

The RLA orders mandatory arbitration and cooling-off periods and permits presidential intervention through emergency boards - which delays strikes and lockouts. The NLRA does not, he noted.

Mark Gruenberg is a writer for Press Associates, Inc., news service. Used by permission.