Court Restores Organizing to Labor

Workers in unions negotiating with an employer are more successful when they organize multiple employers in the same industry. "Organize the unorganized" has been the rallying cry for workers seeking higher pay and greater solidarity for the whole history of unionism. Economists have amply documented the fact that the higher the percentage of workers organized in unions in a particular industry or region, the higher the wages workers are able to demand when they bargain with employers.

This is all pretty obvious. Or should have been obvious to the three-judge panel of 9th Circuit Appeals Court judges who a year ago in May ruled that organizing expenses were not "germane to collective bargaining, contract administration, and grievance adjustment."

In the case, UFCW v. NLRB, a couple of workers backed by the antiunion National Right to Work Foundation had argued that the First Amendment gave them the right to take a good-paying union job but not pay their fair share of the union expenses needed to win that contract in the first place. They based their argument on the 1988 Supreme Court Beck decision which had declared that workers in a union shop could refuse to pay the portion of their dues used by unions for political lobbying and other expenses not "germane" to collective bargaining. The 9th Circuit panel agreed with the bizarre idea that union spending on organizing in an industry is not "germane" to success in getting a decent contract.

Luckily, a full 11-judge panel of the 9th Circuit decided to rehear the case. On March 25, they unanimously overturned last year's decision. Citing extensive economic evidence developed by the National Labor Relations Board, the Court emphasized that organizing competing companies is crucial to winning good contracts for union workers. As the Court noted, "management is far more willing to negotiate higher wage rates when its competitors are subject to the same union costs."

This decision is crucial in affirming that the core of labor law was designed to promote new union organizing. It will not only help unions raise funds they need to organize new workplaces but has implications for a host of other areas of law. Unions have increasingly negotiated contracts that require companies to accept unionization in non-union divisions if a simple majority of those workers sign union cards, so-called "card check" agreements. However, if organizing is not considered a core concern of collective bargaining, such negotiating demands to promote unionization could be declared illegal by the courts.

However, the 9th Circuit decision is likely to be appealed to the Supreme Court, where that court's antiunion majority has happily twisted logic and the intent of legislation to strip unions of rights they had won in their workplaces and in Congress. In at least one case involved railway workers, who are covered by a separate labor statute from most workers, the Supreme Court had ruled that under that law, organizing expenses were not a core part of collective bargaining. Other decisions have made more ambiguous rulings on the subject of what expenses are supposedly "germane" to union collective bargaining, but there is no doubt a core of conservative justices centered on Antonin Scalia will vote against the unions if the case comes before them.

Many Supreme Court justices have increasingly treated unions as "service" institutions who grieve and negotiate on behalf of members in workplaces already organized, but those justices ignore the original intent of the National Labor Relations Act to facilitate organizing in non-union workplaces. What needs to be restored to our labor law is the original understanding of unions as social institutions that transcend specific workplaces and improve wages and conditions in whole industries.

As the National Labor Relations Board argued in the UFCW case in its original findings back in 1999, a key part of the labor law was "Congress' understanding that organization of multiple groups of employees, not just a single bargaining unit or the employees of a single employer in an industry, was necessary to achieve its goals of stabilizing wage rates and preventing depression of employees' wage rates and purchasing power." Organizing is key to such multi-employer bargaining.

The late Justice Blackmun noted in his dissent against the antiunion Beck decision that the Supreme Court's attack on union use of dues ignored the plain language of the legislation in narrowing the union activities that Congress meant to promote. While it may end up being a short-lived victory, the full 9th Circuit UFCW decision upholding the broader vision of organizing as a core function of unions and labor law is a relief amidst courts that have abandoned all reasonable respect for justice and Congressional intent.

Nathan Newman is a union lawyer and author of the forthcoming book Net Loss on Internet policy and economic inequality. See

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