Union Security Clauses Version 2.5
By: RICHARD A. ROSS
March 1999
In the past two issues of the Employment & Labor Law Focus, we reported on recent decisions of the National Labor Relations Board and Eighth Circuit Court of Appeals. Bloom v. National Labor Relations Board held that employers and unions were required to include specific language in union security clauses providing that employees do not have to become or remain union members to keep their jobs. A Supreme Court decision published after the last Focus was printed has cast some doubt on the Bloom case.
In Marquez v. Screen Actors Guild, Inc., et al., the Supreme Court held that a union does not violate the National Labor Relations Act by negotiating a security clause that says employees must become and remain members in good standing to keep their jobs. Although this holding apparently conflicts with the Bloom decision, the Court was careful to state that:
This case presents a narrow question: Does a union breach its duty of fair representation merely by negotiating a union security clause that tracks the language of [the National Labor Relations Act]. To understand why this is a narrow question, it is helpful to keep in mind what issues we are not resolving in this case. First, we are not deciding whether [the union] illegally enforced the union security clause to require petitioner to become a member of the union or to require her to pay dues for non-collective bargaining activities.
The Supreme Court held that since the National Labor Relations Act provides that a union security clause may contain language requiring an individual to become and remain a member in good standing, it would not be arbitrary or in bad faith for a union to negotiate such a clause.
Significantly, Justices Kennedy and Thomas, in their concurring opinion, cited the recent holding in Bloom, stating that: "language like [the language in Marquez] can facilitate deception." They further stated that:
we do not have before us the question whether use of this language, in some circumstances, might be an unfair labor practice, even though without more, it is not a breach of the duty of fair representation.
While the Bloom decision appeared to hold that a union could not insist on the prior "statutory" language, Marquez states that it is not a violation of the union's duty of fair representation to negotiate such a provision. It remains to be seen whether the underlying holding in Bloom will prevail. In any event, an Eighth Circuit (which includes Minnesota) employer can negotiate in good faith and insist that the collective bargaining agreement contain the mandated language from Bloom. If you are negotiating or are about to negotiate a new or renewal collective bargaining agreement, we suggest that you contact your labor counsel to discuss this issue.