Gary A. Bloom v. NLRB

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-1582
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Gary A. Bloom, *
*
Petitioner, *
*
v. * Petition for Review of an
* Order of the National
National Labor Relations Board, * Labor Relations Board.
*
Respondent, *
*
Office and Professional Employees *
International Union, AFL-CIO Local 12, *
*
Intervenor on Appeal. *
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Submitted: October 22, 1999
Filed: April 4, 2000
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Before WOLLMAN, Chief Judge, BEAM, and HANSEN, Circuit Judges.
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WOLLMAN, Chief Judge.
This matter returns to us on remand from the Supreme Court. We affirm the
decision and order of the National Labor Relations Board (Board) and deny the petition
for review.
I.
Petitioner, Gary Bloom, the Office and Professional Employees International
Union, Local 12 (Local 12), and the Board come before us for the third time. For a
background of the case, we refer to our opinions issued during the earlier stages of this
litigation: Bloom v. NLRB, 30 F.3d 1001 (8th Cir. 1994) (Bloom I), and Bloom v.
NLRB, 153 F.3d 844 (8th Cir. 1998) (Bloom II), vacated, 525 U.S. 1133 (1999).
Local 12 represents the bargaining unit of clerical employees at Group Health,
Inc., where Bloom worked as such an employee. The collective bargaining agreement
between Local 12 and Group Health contained a union security clause that required all
employees to become “members” of the union in good standing within thirty-one days
of their hiring. The membership language comes from section 8(a)(3) of the National
Labor Relations Act (Act), which allows an employer in agreement with a union “to
require as a condition of employment membership” in the union. See 29 U.S.C. §
158(a)(3) (1998). The statute further provides, however, that such an employer shall
not discriminate against an employee for nonmembership if the employer “has
reasonable grounds for believing that membership was denied or terminated for reasons
other than the failure of the employee to tender the periodic dues and initiation fees
uniformly required” as a condition of membership.1 See id.
Bloom brought to the Board’s attention certain practices of Group Health and
Local 12 and, after an investigation, the Board’s General Counsel issued a complaint
against them for unfair labor practices. All parties waived a hearing before an
1
A member for statutory purposes may be what is termed a “nonmember
employee,” who can be required to pay only the “agency fee,” comprised of that
percentage of fees and dues expended for a union's activities as the workers’ exclusive
collective bargaining representative in dealings with the employer. See
Communications Workers v. Beck, 487 U.S. 735, 762-63 (1988).
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administrative law judge and proceedings were transferred to the Board upon stipulated
facts, which essentially are as follows: A few months after Bloom had begun to work
for Group Health, Group Health began to deduct fees for full union membership from
his paycheck and remit them to Local 12. When Bloom, who did not wish to join the
union, failed to return a form to authorize these paycheck deductions and requested an
breakdown of dues and fees used in calculating the agency fee from Local 12, the union
sent him a letter threatening to seek his discharge if he did not become a member.
While this matter was pending before the Board, Local 12 and Group Health reached
an informal settlement, which the Board’s General Counsel recommended for approval
as remedying the complaint’s allegations. The Board then issued an unpublished order
approving the settlement and dismissing the complaint. Bloom, unsatisfied, petitioned
us for review.
We denied enforcement of the Board’s order because the union security clause
that had been unlawfully interpreted and applied to mislead employees remained in the
bargaining agreement. See Bloom I, 30 F.3d at 1004. We concluded that the
settlement’s requirement that Local 12 and Group Health post a temporary notice
stating that the clause would no longer be enforced as written did not alone sufficiently
effectuate the purposes of the Act and policies of the Board. See id. at 1005. Because
the clause had been literally enforced and the settlement provision for notice provided
no measures to effectively inform employees of their minimum union obligations under
Communications Workers v. Beck, 487 U.S. 735 (1988), we found that the policies and
purposes of the Act were not being fulfilled. See Bloom I, 30 F.3d at 1004-05. We
noted that one of the policies of the Act is to preserve voluntary unionism. See id. at
1003; Pattern Makers’ League v. NLRB, 473 U.S. 95, 104 (1985). We concluded that
Local 12’s attempt to pressure Bloom into joining the union by threatening to bring
about his discharge constituted a violation of this policy, a violation that was not
adequately addressed by the settlement. We therefore held that the Board was required
to impose a more stringent settlement condition--that the clause be expunged, see id.
at 1005--and we remanded the case to the Board for the entry of that relief.
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The matter reached us again when Bloom petitioned for review of a third2
settlement and corresponding Board decision and order. This third settlement provided
for a new union security clause and for notice procedures that included: (1) the posting
of a notice by Local 12 to all employees that fees and dues would not be deducted from
an employee’s paycheck without the employee’s written authorization, and (2) for
individual notice by Local 12 to certain classes of employees--current nonmembers and
new hires within the statutory limitations period--about their right to refrain from union
activities. The security clause now reads:
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 initiation fees and dues corresponding
to the proportion of the Union’s total expenditures that support
representational activities.
The posted notice will provide that Local 12 will not accept deductions of dues and
fees without prior written authorization, that Bloom personally has been reimbursed
those fees wrongfully deducted, and that Local 12 will not enforce the security clause
by requiring employees to sign a membership application or checkoff authorization
form. In this area, Group Health’s duties mirror those of Local 12; thus Group Health
and Local 12 act as checks on each other. Additionally, Local 12 will provide the
2
Bloom had petitioned for review of a second Board order approving a second
settlement. While retaining jurisdiction over his petition, we granted a motion to
remand to the Board for amendment of that second settlement, making the order now
at issue the one that approved the third version of the settlement.
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qualifying classes of employees with individual notice that contains detailed
information regarding Beck’s minimum requirements, ensuring that at least some
workers will know that they have a right to be objecting nonmembers who will be
charged for only the percentage of dues and fees that are spent for the union’s
representational activities. This notice will also explain that those workers who
become objecting nonmembers within thirty days of receipt of the notice will receive
a refund.
Concluding that the Board, Local 12, and Group Health had not done enough to
alleviate our concerns about Local 12’s attempt to extract full union membership from
employees such as Bloom, we again denied enforcement. We found that even though
it tracked the language of section 8(a)(3), the rewritten security clause still failed to
effectuate the Act’s purposes and policies, as well as our mandate in Bloom I, by
continuing to rely on language that was misleading, coercive, and repugnant to an
employee’s right under Beck to pay only the agency fee. See Bloom II, 153 F.3d at
850.
Having found the rewritten security clause wanting, we then ordered that the
clause be deleted in its entirety and that it be replaced by a provision of our own
making, which spelled out in some considerable detail what we concluded the Act, as
interpreted in Beck and Pattern Makers’, requires. See Bloom II, 153 F.3d at 851.
Local 12 thereupon filed a petition for writ of certiorari.
In Marquez v. Screen Actors Guild, Inc., the Supreme Court held that the
negotiation of a clause that tracks the language of the Act is neither arbitrary nor in bad
faith, concluding that the Court’s limiting gloss from NLRB v. General Motors Corp.,
373 U.S. 743 (1963), and Beck is incorporated into that statutory language. See 525
U.S. 33, 45-48 (1998). Thus, a union does not violate the duty of fair representation
solely by using language in a security clause that is guided by the Act’s section 8(a)(3),
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such as the term “membership,” even though employees may not understand what these
terms of art mean without further explanation. See id. at 46.
Thereafter, the Court granted Local 12’s petition for writ of certiorari and
vacated and remanded Bloom II for further consideration in light of Marquez, 525 U.S.
1133, 119 S. Ct. 1023 (1999).
II.
Marquez holds that the language of a union security clause may mirror the
statutory terms of art. See Marquez, 525 U.S. at 46. A clause that tracks section
8(a)(3)’s language can be enforced as written “because by tracking the statutory
language, the clause incorporates all of the refinements that have become associated
with that language.” Id. at 46. To the extent that the statute’s language does not
comport with ordinary usage, those terms have become terms of art, encompassing
those nonmember rights outlined in General Motors and Beck. See id. at 46. Thus,
unions and employers may rely on these terms of art, such as “membership,” in the
negotiation of union security clauses.
The Court also noted that the Board, in a development that should guide
employers and unions in lawfully enforcing security clauses, is currently in the process
of defining the content of what notification unions must give to employees about their
rights under Beck and General Motors. See id. at 43. Indeed, in California Saw &
Knife Works, the Board held that a union that seeks to apply a union security clause
to bargaining unit employees also has an obligation under the duty of fair representation
to notify nonmembers of their Beck rights when they become subject to the clause. See
320 N.L.R.B. 224, 231 (1995), enforced sub nom. International Ass’n of Machinists
& Aerospace Workers v. NLRB, 133 F.3d 1012 (7th Cir. 1998).
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We turn then, to the question whether the Board’s approved remedy as a whole
adequately effectuates the Act, giving the Board’s decision the deference it is
warranted. See Pace Industries, Inc. v. NLRB, 118 F.3d 585, 593 (8th Cir. 1997). In
its supplemental order, the Board evaluated the settlement based on the factors outlined
in Independent Stave Co., Inc., 287 N.L.R.B. 740 (1987), and elucidated how the
settlement furthers the Act’s policies, discussing both the new language in the
collective bargaining agreement and the notice procedures outlined in the settlement.
See Group Health, Inc., 325 N.L.R.B. No. 49, 1998 WL 45147, at *1 (Feb. 02, 1998)
(Board’s order and decision discussing factors and approving third settlement).
We conclude that, in light of Marquez, the Board’s determination that the
settlement adequately effectuates the Act’s purposes and policies must be upheld. The
Board’s order results in a settlement that requires that the offending clause be rewritten,
that more notice of employee rights under section 8(a)(3) be given, and that Local 12
cease its attempts to unlawfully coerce employees into joining the union. Local 12 and
Group Health have agreed to be bound by the settlement. The language of the new
clause tracks the language of section 8(a)(3) and indicates that employees have options
other than full membership in the union. Furthermore, and again in light of Marquez,
we cannot say that the procedures approved by the Board for notifying employees of
their rights under Beck are a patent attempt to achieve ends other than those envisioned
by the Act. See Pace Industries, 118 F.3d at 593. The new clause and the notice
methods endeavor to maintain the rights of the workers to refrain from union activities
as well as to freely join the union.
We vacate our opinion in Bloom II, affirm the Board’s order, and deny the
petition for further review.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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