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

Opinion by Judge NOONAN; Concurrence by Judge WARDLAW

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…

concurring:

I agree with the majority that we are bound by the Supreme Court’s decisions in Communications Workers of America v. Beck, 487 U.S. 735 , 108 S.Ct. 2641 , 101 L.Ed.2d 634 (1988), and Ellis v. Brotherhood of Railway, Airline, and Steamship Clerks, 466 U.S. 435 , 104 S.Ct. 1883 , 80 L.Ed.2d 428 (1984), to reverse the decision of the Board. Neither the Board nor we can alter or even meaningfully distinguish Beck’s twin holdings that (i) NLRA § 8(a)(3) and § 2, Eleventh of the RLA are “statutory equivalents,” which (ii) preclude charging organizing expenses to objecting nonmembers. This rule would make sense in an industry and a competitive environment where no benefit inured to the nonmember objectors from uniform wage and benefit standards. But here, after reviewing academic research, empirical data and specific evidence as to the direct, positive relationship between the extent of unionization of employees and negotiated wage rates in the retail food industry, the Board concluded otherwise. It is troubling that Beck precludes us from giving the deference to the fact-finding and expertise of the agency charged with administering the labor laws that it would otherwise be…