No. 98-909
In the Supreme Court of the United States
OCTOBER TERM, 1998
OFFICE & PROFESSIONAL EMPLOYEES
INTERNATIONAL UNION, LOCAL 12, PETITIONER
v.
GARY A. BLOOM AND THE
NATIONAL LABOR RELATIONS BOARD
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE
NATIONAL LABOR RELATIONS BOARD
SETH P. WAXMAN
Solicitor General
Counsel of Record Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
FREDERICK L. FEINSTEIN
General Counsel
LINDA SHER
Associate General Counsel
NORTON J. COME
Deputy Associate General
Counsel
National Labor Relations
Board
Washington, D.C. 20570
QUESTION PRESENTED
Whether a union security clause that tracks the language of Section 8(a)(3)
of the National Labor Relations Act, 29 U.S.C. 158(a)(3), is facially valid.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-909
OFFICE & PROFESSIONAL EMPLOYEES
INTERNATIONAL UNION, LOCAL 12, PETITIONER
v.
GARY A. BLOOM AND THE
NATIONAL LABOR RELATIONS BOARD
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE
NATIONAL LABOR RELATIONS BOARD
OPINIONS BELOW
The opinion of the court of appeals of which petitioner seeks this Court's
review (Pet. App. 1a-14a) is reported at 153 F.3d 844. The supplemental
decision and order of the National Labor Relations Board (NLRB or Board)
at issue in that opinion (Pet. App. 18a-41a) is reported at 325 N.L.R.B.
No. 49. An earlier NLRB decision and order in this case (Pet. App. 42a-55a)
is reported at 323 N.L.R.B. 251. The initial decision of the court of appeals
in this case (Pet. App. 56a-63a) is reported at 30 F.3d 1001. The NLRB's
initial order in this case (Pet. App. 64a-65a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on August 7, 1998. Pet.
App. 15a-16a. Petitions for rehearing and suggestions for rehearing en banc
were denied on October 15, 1998. Pet. App. 17a. The petition for a writ
of certiorari was filed on December 2, 1998. The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. Section 8(a)(3) of the National Labor Relations Act (NLRA or Act), 29
U.S.C. 158(a)(3), makes it an unfair labor practice for an employer "by
discrimination in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in any labor
organization." That same paragraph, however, permits an employer to
make an agreement with a labor organization "to require as a condition
of employment membership therein on or after the thirtieth day following
the beginning of such employment." The paragraph further provides that
membership must be equally available to all employees on the same terms
and conditions and may require employees to do no more than "tender
the periodic dues and the initiation fees uniformly required."
This Court has held that, under that paragraph, "'[m]embership' as
a condition of employment is whittled down to its financial core."
NLRB v. General Motors Corp., 373 U.S. 734, 742 (1963). All that may be
required as a condition of employment is "payment of initiation fees
and monthly dues." Ibid. An employee may resign full union membership
without suffering discharge and may not be discharged for failing to abide
by union rules or policies with which he disagrees. Pattern Makers' League
of N. Am. v. NLRB, 473 U.S. 95, 106 (1985). Finally, this Court has made
clear that employees who are not full union members need not pay fees or
dues to the extent they "support union activities beyond those germane
to collective bargaining, contract administration, and grievance adjustment."
Communications Workers of Am. v. Beck, 487 U.S. 735, 745 (1988).
2. In 1991, respondent Gary A. Bloom filed unfair labor practice charges
with the NLRB against his former employer, Group Health, Inc., and his former
collective bargaining representative, petitioner Office and Professional
Employees International Union, Local 12 (Union). Pet. App. 8a, 57a. Based
on those charges, the NLRB General Counsel issued a complaint against Group
Health and the Union. Id. at 58a. The complaint alleged that Group Health
had violated Section 8(a)(1) and (3) of the NLRA, 29 U.S.C. 158(a)(1) and
(3), and the Union had violated Section 8(b)(1)(A) and (2) of the Act, 29
U.S.C. 158(b)(1)(A) and (2). The allegedly unlawful conduct comprised (1)
Group Health's and the Union's maintaining and enforcing in their collective
bargaining agreement a union security clause that required covered employees
to "become and remain members in good standing in the Union" as
a condition of employment; (2) the Union's failure to advise covered employees
of the right to refrain from full union membership and instead to pay agency
fees, as well as the right of an agency fee payer to object to paying the
"nonrepresentational" portion of the agency fee; and (3) the Union's
threats to terminate Mr. Bloom's employment if he declined full union membership,
and the unauthorized deduction of dues from Mr. Bloom's wages. Bloom C.A.
App. 23-24.
Rather than contest that complaint, Group Health and the Union each entered
into a settlement agreement with the NLRB General Counsel to remedy the
alleged unfair labor practices. Pet. App. 58a. The parties agreed that they
would not maintain a "member in good standing" union security
clause without explaining in the clause that employees "need only pay
the Union's periodic dues and initiation fees." Bloom C.A. App. 55,
57. The Union also agreed to inform all Group Health employees of the percentage
of its expenditures spent on "non-representational activities"
and of the right of agency fee payers to object to paying for those activities.
Id. at 57. The Union agreed that it would not tell "employees that
they are required to sign [a] membership application or checkoff authorization
form[ ]" as a condition of employment. Ibid. And the parties agreed
that they would not deduct dues or fees from an employee's pay without prior
written authorization. Id. at 55, 57.1
Mr. Bloom, as the charging party, did not agree to the settlement agreements.
Pet. App. 58a. The settlement agreements were therefore submitted by the
General Counsel to the Board for review under the standards in Independent
Stave Co., 287 N.L.R.B. 740, 743 (1987).2 On September 29, 1993, the Board
entered an order approving the settlement agreements. Pet. App. 64a-65a.
Mr. Bloom petitioned the Eighth Circuit for review of the NLRB's decision
approving the settlement agreements. Pet. App. 58a. On July 27, 1994, the
Eighth Circuit reversed the Board's decision on the ground that "an
adequate remedy in this case requires expunction of the offending clause."
Id. at 63a. The court of appeals "remand[ed] the case to the Board
for further proceedings consistent with [the court's] opinion." Ibid.
3. a. On remand, the settlement agreements were revised to provide, inter
alia, for a substitute union security clause in the collective bargaining
agreement and union notice to all covered employees explaining that employees
who choose to be agency fee payers have the right to object to paying the
"nonrepresentational" portion of the fee and that the Union will
honor objections by reducing the required agency fee and providing a detailed
explanation of the basis for the reduction. Pet. App. 46a.
The substitute union security clause, which was negotiated by Group Health
and the Union, included "additional explanatory language" intended
to "settle this case without additional litigation * * * [by] meet[ing]
the standard for union-security clauses set forth in the Sixth Circuit's
Buzenius decision3 even on the most strict reading of that case." Pet.
App. 21a. The new clause reads as follows:
All Employees of the Employer subject to the terms of this Agreement shall,
as a condition of continued employment, become and remain members in the
Union, and all such Employees subsequently hired shall become members of
the Union within thirty-one (31) calendar days, within the requirements
of the National Labor Relations Act. Union membership is required only to
the extent that Employees must pay either (i) the Union's initiation fees
and periodic dues or (ii) service fees which in the case of a regular service
fee payer shall be equal to the Union's initiation fees and periodic dues
and in the case of an objecting service fee payer shall be the proportion
* * * of the Union's total expenditures that support representational activities.
Ibid.
Mr. Bloom objected to the revised settlement agreements. Pet. App. 22a.
On February 2, 1998, the Board approved the agreements. Id. at 18a-41a.
Mr. Bloom once again petitioned for review.
b. In the decision on which petitioner now seeks certiorari, the Eighth
Circuit reversed the NLRB's decision approving the revised settlement agreements.
Pet. App. 1a-14a. The court of appeals ruled that the "membership"
language of the new union security clause is "misleading and coercive"
and that "no subsequent qualifying language, however cleverly crafted,
should be deemed sufficient to negative the unqualified command expressed
in the first sentence of the challenged provision." Id. at 11a-12a.
In remanding the case, the court of appeals instructed the Board to order
the inclusion of court-specified language in the union security clause.
Id. at 13a. The court of appeals added that "we will no longer uphold
or enforce a union security clause that does not contained this language
or reflect its undiluted equivalent." Ibid.
ARGUMENT
In Marquez v. Screen Actors Guild, Inc., 119 S.Ct. 292, 296 (1998), this
Court held that a union does not breach its duty of fair representation
by negotiating a union security clause that tracks the language of Section
8(a)(3) of the NLRA, 29 U.S.C. 158(a)(3). In so holding, the Court rejected
the contention that the use of the statutory language without an explanation
in the collective bargaining agreement of this Court's interpretation of
that language in General Motors and Beck rendered the clause facially invalid.
119 S.Ct. at 300-301.
The Court noted that it had "granted certiorari to resolve the conflict
over the facial validity of a union security clause that tracks the language
of § 8(a)(3)" (119 S.Ct. at 298-299) that existed between the
Ninth Circuit's ruling (which the Court upheld in Marquez) and the decisions
of two other courts of appeals. Id. at 298 (citing Buzenius v. NLRB, 124
F.3d 788 (6th Cir. 1997), vacated and remanded, 119 S.Ct. 442 (1998); and
Bloom v. NLRB, 30 F.3d 1001 (8th Cir. 1994), the initial decision of the
court of appeals in this case). Accordingly, on November 9, 1998, the Court
granted the petition for certiorari in United Paperworkers Int'l Union v.
Buzenius, No. 97-945, and entered an order providing that "[the] judgment
[in that case is] vacated and the case remanded to the United States Court
of Appeals for the Sixth Circuit for further consideration in light of Marquez
v. Screen Actors Guild." 119 S.Ct. 442 (1998).
The Union then filed this petition for review of the Eighth Circuit's decision
and judgment in Bloom. We agree with petitioner that the Court should vacate
the judgment of the court of appeals in this case and remand for further
consideration in light of Marquez. This case arises in the context of a
Board decision approving settlement agreements to remedy purported violations
of Sections 8(a)(1) and (3) and 8(b)(1)(A) and (2) allegedly committed by
the employer and the Union in entering into a union security clause that
tracks the language of Section 8(a)(3). This Court's decision in Marquez
makes clear that a union security clause that tracks the statutory language
does not violate the Act. 119 S.Ct. at 300-301. Although this case differs
from Marquez in that it does not involve an allegation that the Union breached
its duty of fair representation, the decision of the court of appeals cannot
be reconciled with this Court's decision in Marquez.
The decision of the court of appeals rests on the proposition that a union
security clause that states that covered employees "shall * * * become
* * * members in the Union" is "misleading and coercive,"
because "[i]n such a context, 'member' is not a term of 'art,' * *
* but one of deception." Pet. App. 11a-12a. Marquez directly rejects
that proposition. This Court reasoned there that "the relevant provisions
of § 8(a)(3) have become terms of art; the words and phrasing of the
section now encompass the rights that we announced in General Motors and
Beck." 119 S.Ct. at 300-301.
In addition, the Eighth Circuit held here that a standard form union security
clause tracking the language of Section 8(a)(3) is so "misleading and
coercive" that "no subsequent qualifying language, however cleverly
crafted, should be deemed sufficient to negative the unqualified command
expressed in the first sentence of the challenged provision." Pet.
App. 11a-12a. Marquez also rejects that proposition: "It is difficult
to conclude," this Court held, "that a union acts in bad faith
by notifying workers of their rights through more effective means of communication
and by using a term of art to describe those rights in a contract workers
are unlikely to read." 119 S.Ct. at 301.
Finally, the court of appeals in this case not only overturned the settlement
agreements at issue but prescribed detailed contract language of its own
devising to replace the negotiated language in standard-form "membership"
union security clauses. The court of appeals then declared that the Eighth
Circuit "will no longer uphold or enforce a union security clause that
does not contain this language or reflect its undiluted equivalent."
Pet. App. 13a. The decision of the court of appeals cannot stand in the
face of this Court's ruling in Marquez.
CONCLUSION
The petition for a writ of certiorari should be granted, the judgment of
the Eighth Circuit should be vacated, and the case should be remanded to
that court for further consideration in light of Marquez v. Screen Actors
Guild, Inc., 119 S.Ct. 292 (1998).
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
FREDERICK L. FEINSTEIN
General Counsel
LINDA SHER
Associate General Counsel
NORTON J. COME
Deputy Associate General
Counsel
National Labor Relations
Board
DECEMBER 1998
1 The dues deducted from Mr. Bloom's pay had been returned to him prior
to the settlement agreements, and the Union agreed to notify the other employees
of that action. Bloom C.A. App. 58.
2 The Independent Stave standards are set forth at Pet. App. 49a.
3 See Buzenius v. NLRB, 124 F.3d 788 (6th Cir. 1997), vacated and remanded,
119 S. Ct. 442 (1998).