NRTW

Marquez v. SAG
Petitioner’s Supplemental Brief



IN THE

Supreme Court of the United States

October Term, 1997

__________


No. 97-1056

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Naomi Marquez,

Petitioner,
v.

Screen Actors Guild, Inc., and

Lakeside Productions, Inc.,



Respondents.
__________



On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

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PETITIONER’S SUPPLEMENTAL BRIEF

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On August 7, 1998, after Petitioner Naomi Marquez filed her Reply Brief, the United States Court of Appeals for the Eighth Circuit decided Bloom v. NLRB, No. 97-1582, 1998 WL 455632 (“Bloom II“). Pursuant to Supreme Court Rule 25.5, Ms. Marquez files this Supplemental Brief to present this new authority that directly supports her position on the first question presented here. We reproduce the Bloom II decision in the Appendix to this Supplemental Brief (“Supp. App.”).

ARGUMENT

The first question this case presents is:

Does a union breach its duty of fair representation when it negotiates and maintains a compulsory unionism provision that, on its face, requires–mislead-ingly–that an employee be “a member of the Union” and pay the periodic dues and initiation fee “uniformly required as a condition of acquiring membership,” even though those requirements cannot lawfully be enforced as a condition of employment?

(Pet’r’s Br. at i.)

Bloom II was the second petition for review of a decision and order of the National Labor Relations Board (“Board” or “NLRB”). On the first petition, the Eighth Circuit held that a unilateral settlement agreement approved by the Board was inadequate, because it did not delete a facially unlawful compulsory unionism provision that misleadingly required that all employees become union members “in good standing” as a condition of employment. Bloom v. NLRB, 30 F.3d 1001, 1003-05 (8th Cir. 1994) (“Bloom I”); see Bloom II, 1998 WL 455632, at *1-*2 (Supp. App. at 2a-4a). The court also held in Bloom I that the NLRB’s “remedial notice itself was misleading” and “contrary to law,” “because it purported to enforce a provision requiring membership but providing ‘that employees need only pay the Union’s periodic dues and initiation fees.'” Bloom II, 1998 WL 455632, at *2 (Supp. App. at 4a) (quoting Bloom I, 30 F.3d at 1004); see Bloom I, 30 F.3d at 1004-05.

On remand, the Board approved a revised settlement agreement between the union and the Board’s General Counsel, over the charging party’s objections. The settlement agreement removed the phrase “in good standing” from the compulsory unionism provision. However, it substituted the following language:

“All employees . . . shall, as a condition of continued employment, become and remain members in the Union, . . . 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.”

Bloom II, 1998 WL 455632, at *3 (Supp. App. at 5a-6a).

This clause is more informative than the compulsory unionism provision in this case. (See J.A. at 28-29.) Nonetheless, on the charging party’s second petition for review, the Eighth Circuit held that this “language is not simply misleading and coercive, it is repugnant to the Supreme Court’s pronouncements in” Communications Workers v. Beck, 487 U.S. 735 (1988), and Pattern Makers v. NLRB, 473 U.S. 95 (1985). Bloom II, 1998 WL 455632, at *6 (Supp. App. at 11a).

The Eighth Circuit based its decision on the principle, equally applicable here, that one of the National Labor Relations “Act’s primary policies, and a fundamental tenet underlying all of labor relations jurisprudence, is voluntary unionism, the notion that a person’s job, or the terms of his employment, may never be conditioned upon membership in a labor union.” Id. at *5 (Supp. App. at 9a). The court of appeals explained its holding with reasoning that applies even more strongly here:

Although no employee can be required to join the union, this provision turns truth upon its head and informs those it governs that all employees are required to become and remain union members. The confusing caveat that follows the offending clause contains nothing from which an employee might possibly glean the knowledge that he may decline to join the union. In any event, 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. . . . The employee, unschooled in semantic legal fictions, cannot possibly discern his rights from a document that has been designed by the union to conceal them.

Id. at *6 (Supp. App. at 11a-12a) (emphasis added).

The Eighth Circuit also explicitly rejected an argument that Respondent Screen Actors Guild (“SAG”) has made here, (see SAG’s Br. at 22-24): in this context,‘member’ is not a term of ‘art,’ as has been suggested to us, but one of deception.” Bloom II, 1998 WL 455632, at *6 (Supp. App. at 12a) (emphasis added). Negotiation and maintenance of a collective bargaining agreement provision containing such deceptive language, obviously, breach the exclusive bargaining representative’s “statutory obligation to serve [the] interests of all employees ‘without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.'” Id. at *5 (Supp. App. at 9a-10a) (quoting Vaca v. Sipes, 386 U.S. 171, 177 (1967)).

Because the settlement agreement approved by the NLRB inBloom II was not only contrary to law, but also apparently “calculated to evade both the letter and spirit of Bloom I,” the Eighth Circuit did not just deny enforcement of the Board’s order. The court also remanded the case with specific instructions. Id. at *7 (Supp. App. at 12a). It instructed that the compulsory unionism provision approved by the Board be completely expunged and a provision the court drafted be substituted. That provision is clear and strikingly similar to the “model clause” proposed in Petitioner’s Reply Brief at 11 n.5:

No employee shall be required to become or remain a member of the union as a condition of employment.

Each employee shall have the right to freely join or decline to join the union.

Each union member shall have the right to freely retain or discontinue his or her membership.

Employees who decline to join the union may be required, at a minimum, to pay a reduced service fee equivalent to his or her proportionate share of union expenditures that are necessary to support solely representational activities in dealing with the employer on labor-management issues.

No employee shall be discriminated against on account of his or her membership or non-membership in the union.

Bloom II, 1998 WL 455632, at *7 (Supp. App. at 12a-13a).(1)

CONCLUSION

The unanimous opinion of the Eighth Circuit in Bloom II provides a powerful argument for reversing the judgment below on the first question presented here.

Respectfully submitted,

Raymond J. LaJeunesse, Jr.

Petitioner’s Counsel of Record

National Right to Work Legal   Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, VA 22160

(703) 321-8510

August 19, 1998

1.   The court also declared that it “will no longer uphold or enforce a union security clause that does not contain this language or reflect its undiluted equivalent.” 1998 WL 455632, at *7 (Supp. App. at 13a). Back.