Bloom v. N.L.R.B.
| Decision Date | 27 July 1994 |
| Docket Number | No. 93-3483,93-3483 |
| Citation | 30 F.3d 1001 |
| Parties | 146 L.R.R.M. (BNA) 2986, 63 USLW 2132, 128 Lab.Cas. P 11,140 Gary A. BLOOM, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Hugh L. Reilly, Springfield, VA, argued for petitioner.
Deborah E. Shrager, Washington, DC, argued for respondent.
Before WOLLMAN, MAGILL, and BEAM, Circuit Judges.
Gary A. Bloom petitions for review of an order of the National Labor Relations Board ("the Board"). We reverse and remand to the Board for further proceedings.
In June 1991, Bloom was employed by Group Health, Inc., as a clerical worker. The Office and Professional Employees International Union, Local 12 ("Local 12") was the exclusive bargaining representative of Group Health's clerical employees. The collective bargaining agreement between Group Health and Local 12 contained a union security clause:
All Employees of the Employer subject to the terms of this Agreement shall, as a condition of continued employment, become and remain members in good standing in the Union, and all such Employees subsequently hired shall make application and become members of the Union within thirty-one (31) days.
On September 27, 1991, Group Health withheld union dues and initiation fees from Bloom's paycheck without his authorization. Local 12 then sent Bloom a letter requesting that he complete and sign a membership application and a voluntary dues checkoff card. In response, Bloom informed Local 12 that he had not completed the membership application or dues checkoff card because he first wanted a breakdown of how the union dues were spent. Local 12 provided Bloom with a categorization of union expenditures, but it did not inform Bloom of the percentage of union dues and fees that was spent on nonrepresentational activities. Nor did Local 12 advise Bloom that he could object to having union dues and fees spent on nonrepresentational activities and be charged only the percentage spent on representational activities. Instead, Local 12 advised Bloom that the collective bargaining agreement required that he be a member of the union and that if he did not complete the membership application and the dues checkoff card Local 12 would request that Group Health terminate him. During the remainder of 1991, Group Health continued to withhold union dues and fees from Bloom's paycheck. On January 30, 1992, however, Local 12 refunded to Bloom in full the amounts that had been withheld from his paychecks without authorization.
Bloom filed unfair-labor-practice charges against Group Health and Local 12 on December 23, 1991. The charges alleged that Group Health and Local 12 had violated Bloom's rights and the rights of similarly situated employees under the National Labor Relations Act by negotiating and enforcing a provision of a collective bargaining agreement requiring employees to become and remain union members in good standing as a condition of employment and by withholding union dues and fees from Bloom's paycheck without his authorization. The charges further alleged that Local 12 had failed to advise employees of the percentage of dues spent on nonrepresentational activities and of their right to become objecting nonmembers.
The Board's General Counsel issued a consolidated complaint on Bloom's charges. Waiving a hearing before an administrative law judge, the parties entered into a stipulation of facts and filed a motion to transfer the proceedings to the Board, which the Board granted. While the charges were pending before the Board, Group Health and Local 12 entered into settlement agreements which the General Counsel concluded remedied the alleged unfair labor practices. The General Counsel then filed with the Board a motion for approval of the settlement agreements. Bloom was not a party to the settlement agreements, and he opposed the motion for approval. The Board entered an order approving the settlement agreements and dismissing the complaint. Bloom then filed this petition for review.
Bloom challenges the Board's order approving the settlement agreements on several grounds. We first consider his argument that the agreements should not have been approved because they do not expunge the union security clause that gave rise to Bloom's unfair-labor-practice charges.
The Board has a longstanding policy of encouraging the settlement of labor disputes. NLRB v. International Bhd. of Elec. Workers, Local Union 112, 992 F.2d 990, 992 (9th Cir.1993). Despite this policy, however, the Board is not required to approve all settlement agreements, even if the General Counsel advocates approval. Independent Stave Co., 287 N.L.R.B. 740, 741 (1987). Pottsville Bleaching & Dyeing Co., 301 N.L.R.B. 1095, 1095 (1991). The Board will not approve a settlement that does not effectuate the purposes and policies of the Act. Independent Stave, 287 N.L.R.B. at 741.
In deciding whether to approve a settlement, the Board examines various factors:
(1) whether the charging party(ies), the respondent(s), and any of the individual discriminatee(s) have agreed to be bound, and the position taken by the General Counsel regarding the settlement; (2) whether the settlement is reasonable in light of the nature of the violations alleged, the risks inherent in litigation, and the stage of the litigation; (3) whether there has been any fraud, coercion, or duress by any of the parties in reaching the settlement; and (4) whether the respondent has engaged in a history of violations of the Act or has breached previous agreements resolving unfair labor practice disputes.
Id. at 743. Applying these factors and considering all the circumstances, we must decide whether the settlements that the Board approved effectuate the purposes and policies underlying the Act. 1
One of the policies of the Act is voluntary unionism. Pattern Makers' League v. NLRB, 473 U.S. 95, 104, 105 S.Ct. 3064, 3069-70, 87 L.Ed.2d 68 (1985). To eliminate "the serious abuses of compulsory unionism", Congress, in the Taft-Hartley Act of 1947, abolished closed shop agreements, which required that employers hire only persons who were union members. NLRB v. General Motors Corp., 373 U.S. 734, 740-41, 83 S.Ct. 1453, 1458, 10 L.Ed.2d 670 (1963). Congress recognized, however, that "without such agreements, many employees would reap the benefits that unions negotiated on their behalf without in any way contributing financial support to those efforts." Communications Workers v. Beck, 487 U.S. 735, 748, 108 S.Ct. 2641, 2650, 101 L.Ed.2d 634 (1988). Congress therefore included a provision permitting union security clauses to ensure that there would be no employees who received the benefits of union representation without paying for them. Oil, Chem. & Atomic Workers Int'l Union v. Mobil Oil Corp., 426 U.S. 407, 416, 96 S.Ct. 2140, 2144-45, 48 L.Ed.2d 736 (1976). Section 8(a)(3) provides in part, "[t]hat nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization ... to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later." 29 U.S.C. Sec. 158(a)(3).
In accordance with Congress's intent, the Supreme Court has held that the only aspect of union membership that can be required as a condition of employment pursuant to a section 8(a)(3) union security provision is the payment of dues. Pattern Makers' League v. NLRB, 473 U.S. 95, 106 n. 16, 105 S.Ct. 3064, 3071 n. 16, 87 L.Ed.2d 68 (1985) (citing Radio...
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