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Eye On Boise

9th Circuit rejects state’s appeal, says anti-union law passed in 2011 was invalid

The 9th Circuit U.S. Court of Appeals today upheld a federal district court ruling that an anti-union law passed by the Idaho Legislature in 2011 was invalid, as it was pre-empted by the federal National Labor Relations Act. The law, which was immediately enjoined and never took effect, banned “job targeting” or “market recovery” programs, in which unions use funds they collect from workers to subsidize bids by union contractors on jobs.

When lawmakers were considering the measure in 2011, the Idaho Attorney General’s office warned that it likely would be overturned in court, but the bill passed anyway; it included criminal penalties and hefty fines for violations. A group of labor unions immediately sued and won. The state appealed to the 9th Circuit.

“Construction unions have developed such programs to increase their members’ access to work and stem the long-term decline in the percentage of construction workers represented by unions,” wrote 9th Circuit Judge Marsha Berzon, on behalf of a unanimous three-judge panel. “Under such programs, a union collects funds from workers it represents and then uses those funds to subsidize bids by union contractors, allowing the contractors to lower their labor costs and so more effectively compete with non-union contractors.”

“It is well settled that most of the conduct prohibited by Idaho’s statute is protected by the NLRA,” Berzon wrote. She added that the National Labor Relations Board “has repeatedly held that job targeting programs are actually protected under § 7 of the NLRA.”

The 2011 law was dubbed the “Fairness in Contracting Act.” Sponsored by then-Sen. John Goedde, R-Coeur d’Alene, the bill passed the Idaho Senate 25-8 and the House 55-15, and Gov. Butch Otter signed it into law on March 3, 2011. You can read the 9th Circuit's ruling here, and my full story is online here at An attorney for the unions said they plan to seek attorney fees from the state.

Betsy Z. Russell
Betsy Z. Russell joined The Spokesman-Review in 1991. She currently is a reporter in the Boise Bureau covering Idaho state government and politics, and other news from Idaho's state capital.

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