## 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 Labor National Labor Relations Board, * Relations Board.
* Respondent, *
* Office and Professional Employees * International Union, AFL-CIO Local 12, *
* Intervenor on Appeal. *

___________ Submitted: March 11, 1998 Filed: August 7, 1998

___________ Before WOLLMAN, BEAM, and HANSEN, Circuit Judges.

___________ WOLLMAN, Circuit Judge. Gary A. Bloom, on behalf of himself and those similarly situated, petitions for review of a decision

and order of the National Labor Relations Board issued pursuant to our remand in Bloom v. N.L.R.B. , 30 F.3d 1001, 1005 (8th Cir. 1994) ( Bloom I )

. The Office and Professi onal Employees International Union, Local 12, has intervened-2-

on beha lf of the Board. We deny enforcement of the decision and order, and w e remand with directions.

I.

During the summer of 1991, Bloom was hired as a clerical worker with Group Health, Inc. His position placed him within a barg aining unit represented by the union. The collective bargaining agreement between Group Health and the union containe d the following union security clause:

ARTICLE 1

UNION RECOGNITION AND UNION SHOP

. . . . 1.03 All E mployees of the Employer subject to the terms of thi s Agreement

shall, as a condition of continued employment, become an d remain members in good standing in the Union, and all such Employees subseque ntly hired shall make application and become members of th e Union within thirty-one (31) days.

A few mon ths after Bloom was hired, Group Health began to withhold unio n dues and initiation fees from his paycheck without his authorization and remit them to the union. In October, the union sent Bloom the following letter:
Our office has been informed that you are now working f or Group Health, Inc. We have never received an Application for Membership or a Voluntary Dues Checkoff Card from you. I am enclosing them and would like you to fill them out, sign them and return them to our office as soon as possible so that we can place you in th e Union. We need these for our records and also to send to our International Office.-3-

Bloom sent a reply to the union stating that h e had received the application form but had not yet decided if he wante d to join. He also stated that he had not authorized any deduction from his paycheck. He requested an itemization of ho w union dues were spent and r eimbursement for the dues that had already been withheld. The unio n responded as follows:

As stated in the New Member Packet, it is a part of the Collectiv e Ba rgaining Agreement between Office and Professional Employee s Int ernational Union, Local 12, and Group Health, Inc. that you mus t become a member of the Union thirty-one days after you are hired

. If you choose not to be a member of Local 12, I shall have no alte rnative but to request GHI that your employment be t erminated . It is my sincere hope th at you will choose to join Local 12 and return the cards to thi s office as we have requested.
(Emphasis supplied). In the meantime, Group Health continu ed to withhold union dues and fees from Bloom’s paychecks and deposit them in union coffers.

In December of 1 991, Bloom filed charges with the Board on behalf of himself and “sim ilarly situated discriminatees” against Group Health and the union, allegin g unfai r labor practices under the National Labor Relations Act (Act), 29 U.S.C. § 158 (1973 & Supp. 1998). Bloom challenged the facial validity of the union securit y clause. He alleged that Group Health and the union had enforced the illega l membership obli gations required by that clause upon himself and others by deducting union dues without authorization, refusing to in form employees of their right to decline union membership and pay only a reduced fee associated with representational costs, and threatening those who decline union membership with termination.

In January of 1993, the parties’ stipulation of facts and motion to transfer th e proceedings to the B oard were approved. While the case was pending, Group Health and the union enter

ed into a unilateral settlement agreement with the Board’s General-4-

Counsel. Over Bloom’s objections, the Board app roved the settlement by unpublished order on Se ptember 29, 1993. The agreement purported to remedy the unfair labo r pr actices detailed by Bloom by requiring the union to post notices “in conspicuou s places in and about the employer’s plant where they shall be maintained for 6 0 consecutive days from the date of posting.” The notice essentially stated that Group Heal thwould no longer deduct and the union would no longer accept union due s without authorization. It further stated that neither party would interfere with Group Heal themployees’ rights under the Act and that the provision of the collectiv e bargaining agreement requiring union membership would no longer be enforced “unless such provisio n also provides that employees need only pay the Union’s periodic dues and initia tion fees.” The public notice also took care to single out Bloom as th e emp loyee who had filed charges with the Board. Bloom’s complaint was the n summarily dismissed.

Bloom petitioned for review pursuant to section 10(f) of the Act, 29 U.S.C

. 160(f). We reversed th e Board’s approval of the settlement. See Bloom I , 30 F.3d at 1005. In particular, we c oncluded “that the settlement agreements are inadequate, for they do not delete the misleading union security clause that the charged partie s unlawfully interpreted

and applied.” Id. at 1004. We also expressly rejected the idea that the presence of the unlawful clause in the barga ining agreement could be remedied by posting notice that the clause would not be enforced. See id. at 1005 (“posting a temporary notice

stating that the collective bargaining agreement will not be enforced as it is drafted is not sufficient t o protect Group Health’s employees’ section 7 right to refr ain from union activities”). Indeed, we concluded that the remedial notice itsel f was misleading, because it purported to enforce a provision requiring membership but providing “that employees need only pay the Union’s periodic dues and initiation fees.” Id. at 1004. Such language is itse lf contrary to law, we noted, because employees can never be required to become union members or “pay all union dues an d initiation fees,” but rather “need only pay that portion of union dues and fees attributable to the union’s representational activities.” Id. at 1004-05 (emphasis in original). Thus, “[b]ecause-5-

the over ly broad union security clause was unlawfully interpreted and applied,” w e ordered that it be expunged from the collective bargaining agreement. Id. at 1005. We remanded the case to the Board for further proceedings.

On remand , Group Health and the union entered into a second settlemen t agreement with the General Counsel. The revised settlement provided that Grou p Health and the union wou ld amend their contract to delete the provision requiring that employees become members in good standing and sub stitute a provision providing that

un ionmembership is required, but only to the extent that employees must pay th e union ’s periodic dues and initiation fees. Bloom objected to the revised settlement , contendi ng that it did not comport with our instructions in Bloom I . Nonetheless, the Board approved it and again dismissed Bloom’s complaint. See Group Health, Inc. , 323 N.L.R.B. No. 31 (Feb. 27, 1997) ( Group Health II ). Bloom petitioned for review, seeking enforcement of our original mandate.
After the record and the parties’ initial briefs were filed, the B oard filed a motion requestin g that we remand the matter so that the Board might reconsider its order i n lightof the Sixth Circuit’s decision in Buzenius v. N.L.R.B. , 124 F.3d 788 (6th Cir

. 1997). We granted the motion and remanded the case, expressly retaining jurisdiction

over Bloom’ s petition. The Board then granted a motion by the union and Grou p Health to amend the settlement agreement a third time. The third se ttlement deleted the “in good standing” phrase from the collective bargain ing agreement and substituted the following union security clause:

All Emplo yees of the Employer subject to the terms of this Agreemen t shall, as a condition of continued employment, become and remai n members in the Union, and all such Employees subsequently hired shall become members of the Union within thirty-one (31) calender days , withinthe requirements of the National Labor Relations Act. Unio n membership is required only to the extent t hat Employees must pay either (i) the Union’s initia

tion fees and periodic dues or (ii) service fees whichSee also O il, Chemical & Atomic Workers Local Union No. 6-418, AFL-CIO 1 v. N.L .R.B. , 694 F.2d 1289, 1294-95 (D.C. Cir. 1982); N.L.R.B. v. Oil, Chemical & At omic Workers Int’l Union, AFL-CIO , 476 F.2d 1031, 1036 (1st Cir. 1973) ; Annotation , Who is a “Person Aggrieved,” Entitled, Under Section 10(f) of th e Amended National La

bor Relations Act, To Review of Final Order of National Labor Relations Board in Appropriate Court of Appeals , 1 A.L.R. Fed. 550 (1969 & 199 7 Supp.).
-6- 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 object ing service fee payer shall be the proportion of the initiation fees and dues corresponding to t he proportion of the Union’s total expenditures that suppor t representational activities.

Over Bloom’s objections, the Board approved the settlement and issued it s Supplemental Decision and Ord er on Remand. See Group Health, Inc. , 325 N.L.R.B. No. 49 (Feb. 2, 1998) ( Group Health III ).

II.

We dealfirst with jurisdictional matters. Pursuant to our grant of its motion to file supplemental briefs on the eve of oral argument, the Board has raised an eleventhhour challenge to our authority over this case. It asserts that Bloom is not a “person aggrieved” under section 10(f) of the Act, 29 U.S.C. § 160(f), and thus does not have standin g to petition for review of its order. We do not agree. Whenever the Boar d enters a fi nal order against a charged party to its review proceeding, that party is a “per son aggrieved” under the Act and is entitled to seek direct review in th e ap propriate court of appeals. See International Union, United Auto., Aerospace & Agric. Implement Workers of America, AFL-CIO, Local 283 v. Scofield , 382 U. S. 205, 210 (1965). Similarly, “if the B oard determines that a complaint should be dismissed, the charging party has a statutory right to review as a ‘person aggrieved.’” Id. Bloom 1An inju ry sufficient to confer standing upon a party need not be monetary i n 2 nature. For instance, Bloom’s con stitutional rights to free speech and association may have been implicated, and he may have been constructively discharged as the result of his relu ctance to join the union. Cf. Lehnert v. Ferris Faculty Ass’n , 500 U.S. 507 , 516-19 (1 991) (discussing First Amendment implications of compulsory union dues); Clayton v. White Hall Sch. Dist. , 778 F.2d 457, 459 (8th Cir. 1985) (discussin g possibility of standing based upon “work environment ” or “associational” injury). The necessary injury in fact might also be premised upon the union’s violation of the Act itself. See Federal Election Comm’n v. Akins , 118 S. Ct. 1777, 1785-86 (1998 ) (identifying injury sufficient to confer standing resulting from violation of “statut e which . . . doe s seek to protect individuals such as respondents from the kind of harm they say they have suffered”).

-7- is a cha rging party whose complaint was dismissed by the Board. As a result, he has express authorization from Congress to seek our review of the Board’s order.
Although Bloom is clearly

entitled to petition for review, he must also establish standing under Article III. See Wilcox Elec., Inc. v. Federal Aviation Adm in. , 119 F.3d 724, 727 -28 (8th Cir. 1997); City of St. Louis v. Department of Transp. , 936 F.2 d 1528, 1532 (8th Cir. 1991). We conclude that he has done so. Bloom suffered th e requisite “injury in fact” when union dues and fees were withheld from his paycheck wi thout authorization. He has never entered into nor approved any settlement of hi s claims resulting from that incident. His injuries will not have been fully redressed until he has recovered not only the confiscated funds, but an appropriate award of interest to compens ate for the period during which they were unlawfully utilized. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP) , 412 U.S. 669, 690 n.14 (1973) (approving of concept that “an identifiable tr ifle is enough for standing to fight out a question of principle”). 2

Nonetheless, the B oard asserts that Bloom lacks standing because, seven years after his initial complaint, he is no longer employed by Group Health, an argument-8-

mor e closely related to the question of mootness. From the beginning, Bloom ha s consistentlymaintained this action on behalf of himself and those “similarly situated” who al so have suffered as a result of the union’s illegal practices against those wh o prefer not to join. This is, in other words , a representative petition. Although it is true that one generally may

not support jurisdiction by seeking to vindicate the legal rights of others, that is a judicially self-imposed limitation upon federal jurisdiction which has

no roots in Article III. See United Food & Commercial Workers Int’l Union, Loca l 751 v. Brown Group, Inc. , 50 F.3d 1426, 1429 n.3 (8th Cir. 1995) (quoting Allen v

. Wri ght , 468 U.S. 737, 751 (1984)), rev’d on other grounds , 517 U.S. 544 (1996)

. Consequently, “[a] federal statute may give a putative plaintiff the right to bring suit, thus relieving him of the judici ally-created, prudential standing requirements.” Brown Group , 50 F.3d at 1429; see also Akins , 118 S. Ct. at 1783-84; Family & Children’s Ctr., Inc. v. School City of Mishawaka , 13 F.3d 1052, 1059-60 (7th Cir. 1994). As the Supreme Court has recently obs erved, “[h]istory associates the word ‘aggrieved’ with

a congr essional intent to cast the standing net broadly -- beyond the common-la w interests and substantive statutory rights upon which ‘prudential’ standing traditionally rested.” Akins , 118 S. Ct. at 1783. We conclude that Congress intended to cast the st anding net broadly here by authorizing “[a]ny person aggrieved” to seek review o f an order by the Board under section 10(f) of the Act.

Because Congress’s express grant of standing to aggrieved persons such a s Bloom extends to the limits of that which is permitted by Article III, the typical gauntlet of prudential limitations stands as no obstacle to our duty to promote the efficien t interests of justice and, in particular, to enforce our previous mandate regarding th e unionsecurity clause. See Family & Children’s Ctr. , 13 F.3d at 1061; Akins , 118 S. Ct. at 1783-84; Brown Group , 50 F.3d at 1429. Thus, because Bloom seeks t o vindicate the rights of all those currently affected by the facially invalid clause in the collective bargaining agreement, because he is the original charging partyand a “person aggrieved ” authorized by Congress to petition for review, and because he himsel f satisfies the minimum requirements for Arti cle III standing, we conclude that his cause-9-

is not moot. “To hold otherwise would frustrate the remedial purposes of the Act. ” N. L.R.B. v. Laborers Int’l Union of North America, AFL-CIO, Local 282 , 567 F.2 d 833, 836 (8th Cir. 1977); see also N.L.R.B. v. Modine Mfg. Co. , 500 F.2d 914, 916 n.4 (8th Cir. 1974) (proc eedings are not moot when settlement between employer and union contain s cease and desist order and parties are “entitled to have the resumption of the unfair [labor] pr actice barred by an enforcement decree”); N.L.R.B. v. Douglas & Lomason Co. , 443 F.2d 291, 294 (8th Cir. 1971).

III.

In Bloom I , we made clear that, although “[t]he Board has a longstanding policy of encouraging the settlement of labor disputes ,” it must “not approve a settlement that does not effectuate the purposes and policies of the Act.” 30 F.3d at 1003. One of the Act’s primary policies, and a fundamental tenet underlying all of labor relation s 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. See id

. Enlisting in a union is a wholly voluntary commitment; it is an opti on that may be freely undertaken or freely rejected. Thus, section 7 of the Act guarantees employees th e rightto e ngage, or refrain from engaging, in activities in support of collectiv e ba rgaining. 29 U.S.C. § 157. Section 8(a)(3) makes it an unfair labor practice t o di scriminate “in regard to hire or tenure of employment or any term or condition o f employme nt” for the purpose of encouraging or discouraging membership in a labo r union. 29 U.S.C. § 158(a)(3). Likewise , the Act imposes a duty of fair representation upon labor organizations, prohibiting them and their agents from restraining or coercing employees i n the exercise of guaranteed rights. 29 U.S.C. § 158(b); see also Vaca v. Sipes , 386 U.S. 171, 177 (1967) (stating that union’s status as exclusive bargainin g representa tive gives rise to statutory obligation to serve interests of all employee s “without hostility or discrimination toward any, to exercis e its discretion with complete good faith and honesty, and to avoid arbitrary conduct”).-10-

Section 8(a)(3) of the Act provides:

Provided , That nothing in this subchapter . . . shall preclude an employer from making an agreement with a labor organization . . . to require as a condition of employment me mbership therein on or after the thirtieth day following the beginning of suc h employment or the effective date of such agreement, whichever is the later.

29 U.S.C. § 158(a)(3). Read literally, this language would permit unions an d employe rs to include within a collective bargaining agreement a provision that would require union membership as a condition of employment. As we pointed out in Bloom I , however, the Supreme Court has not given s ection 8(a)(3) a literal reading. 30 F.3d at 1003-04.

In Pattern Makers ’ League of North America, AFL-CIO v. N.L.R.B. , 473 U.S. 95, 107 n.16 (1985), the Court noted that the payment of dues is the only aspect o f union me mbership that can be required under section 8(a)(3); see also N.L.R.B. v

. General Motors Corp. , 373 U.S. 734, 742 (1963). In Communications Workers o f Ameri ca v. Beck , 487 U.S. 735, 762-63 (1988), the Court held that nonunio n empl oyees can be required to pay only those dues and fees associated with cost s incurred by the union in association with its core representational activities. See also International Ass’n of Machinists & Aerospace Workers v. N.L.R.B. , 133 F.3d 1012, 1015 (7th Cir. 1998); Vic Koe nig Chevrolet, Inc. v. N.L.R.B. , 126 F.3d 947, 951 (7th Cir. 1997). A union may insist upon nothing more from an employee and may no t require membership in any sense. “This has been settled law for some time, and the only realistic explanation for the retention of the statutory language in collectiv e bargainin g agreements, as the courts have observed, is to mislead employees abou t their right not to join the

union.” Wegscheid v. Local Union 2911 , 117 F.3d 986, 990 (7th Cir. 1997).See Buzenius , 124 F.3d at 792 (“To permit the [collective bargainin g 3 agreement] to say what it cannot literally mean does violence both to the Act’s policy of v oluntary unionism and to principles of contract interpretation”); Wegscheid , 11 7 F.3d at 990-91; Bloom I , 30 F.3d at 1004-05; but see M arquez v. Screen Actors Guild, Inc. , 124 F.3d 1034, 1037-39 (9th Cir. 1997), cert. granted , 118 S. Ct. 1298 (March 23, 1998) ; International Union of Electronic, Elec., Salaried, Mach. & Furnitur e Workers, AFL-CIO v. N.L.R.B. , 41 F.3d 1532, 1537-38 (D.C. Cir. 1994).
-11- As set for th above, the clause under challenge here begins with the followin g statement:

All Employees of the Employer subject to the terms of this Agreemen t shall, as a condition of continued employment, become and remai n members in the Union, and all such Employees subsequently hired shal l become members of the Union within thirty -one (31) calender days, within the requirements of the National Labor Relations Act.

This la nguage is not simply misleading and coercive, it is repugnant to the Suprem e Court’s pronouncements in Beck and Pattern Makers and is in direct conflict with our mandate in Bloom I . Although no employee can be required to join the union, thi s 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 offendi ng clause contains nothing from which an employee might possibly glean th e knowledge that he may decline to join the union. In anyevent, no subsequent qualifying languag e, however cleverly crafted, should be deemed sufficient to negative th e unqua lified

command expressed in the first sentence of the challenged provision. A s 3 Bloom ca n well attest, when an employee who is approached regarding unio n
me mbership expresses reluctance, a union frequently will produce or invoke th e collective bargaining agreement in an attempt to pressure him into signing up. Th e employee, unschooled in semantic legal fictions, cannot possibly discern his rights from

a document that has been designed by the union to conceal them. In such a context , “member” is not a term of “art,” as has been suggested to us, but one of deception. In-12-

his concurrence to the Board’s opinion, Chairman Gould conceded as much. See Group Health III , 325 N.L.R.B. No. 49 at 5 (Gould, concurring).
The settlement agreement a pproved by the Board on remand seems to have been calcu lated to evade both the letter and spirit of Bloom I . The Board’s supplementa l decis ionreflects a disregard of our directives. Accordingly, rather then simpl y remanding this case to the Board for further proceedings consistent with our opinion, we

reman d with specific instructions. See Iowa Utilities Bd. v. Federal Communication s Co mm’n , 135 F.3d 535, 541 (8th Cir. 1998) (“We have not only the power, but also a duty to enforce our prior mandate to prevent evasion”).

INSTRUCTIONS AND ORDER

Th e offending union security clause contained within the third settlemen t agreement shall be deleted in its entirety. In its stead, the following provision shall be inserted:
No employee shall be required to become or rema in a member of the union as a condition of employment.

Each employ ee shall have the right to freely join or decline to join th e union.

Each union member shall have the right to freely retain or discontinue his or her membership.
Emplo yees who decline to join the union may be required, at a minimum, to pay a reduced service fee equi valent to his or her proportionate share of unio n expenditures that are necessary to support solely representationa l activities in dealing with the employer on labor-management issues.-13-

No emplo yee shall be discriminated against on account of his or he r membership or non-membership in the union.-14-

Moreover, we hereby serve notice that we will no longer uphold or enforce a unio n security clause that does not contain this language or reflect its undiluted equivalent.

The union and Group Health may agree to include, in a section that follows the foregoing language, a clause that further explains the various levels of membership and non-membership from which an employee is free to select. However, the agr eement may contain no la nguage that states or implies that an employee must join or become a memberof th e union (or remain a union member) in any sense or context. Befor e approving the agreement as so revised, the Board shall ensure that Bloom has been fully redressed for any fees or dues unlawfully withheld from his paycheck, including a n appropriate award of interest thereon.
We deny enforcement of the Board’s decision and order, and we remand the case to the Board for the inclusion of the above set forth langua ge in the union security clause and for the entry of appropriate relief to Bloom.
A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.