United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1582

___________

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. *

___________

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.
1A 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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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
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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.
2Bloom 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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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
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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.