Bloom v. N.L.R.B.
| Decision Date | 15 October 1998 |
| Docket Number | AFL-CIO,No. 97-1582,97-1582 |
| Citation | 153 F.3d 844 |
| Parties | 158 L.R.R.M. (BNA) 3031, 135 Lab.Cas. P 10,221 Gary A. BLOOM, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Office and Professional Employees International Union,Local 12, Intervenor on Appeal. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Glenn M. Taubman, Springfield, VA, argued, for petitioner.
Deborah E. Shrager, Washington, D.C., argued (David Habenstreit, Frederick L. Feinstein, Linda Sher and Aileen A. Armstrong, on the brief), for respondent.
Before WOLLMAN, BEAM, and HANSEN, Circuit Judges.
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 Professional Employees International Union, Local 12, has intervened on behalf of the Board. We deny enforcement of the decision and order, and we remand with directions.
During the summer of 1991, Bloom was hired as a clerical worker with Group Health, Inc. His position placed him within a bargaining unit represented by the union. The collective bargaining agreement between Group Health and the union contained the following union security clause:
UNION RECOGNITION AND UNION SHOP
....
1.03 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.
A few months after Bloom was hired, Group Health began to withhold union 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 for 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 the Union. We need these for our records and also to send to our International Office.
Bloom sent a reply to the union stating that he had received the application form but had not yet decided if he wanted to join. He also stated that he had not authorized any deduction from his paycheck. He requested an itemization of how union dues were spent and reimbursement for the dues that had already been withheld. The union responded as follows:
As stated in the New Member Packet, it is a part of the Collective Bargaining Agreement between Office and Professional Employees International Union, Local 12, and Group Health, Inc. that you must 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 alternative but to request GHI that your employment be terminated. It is my sincere hope that you will choose to join Local 12 and return the cards to this office as we have requested.
(Emphasis supplied). In the meantime, Group Health continued to withhold union dues and fees from Bloom's paychecks and deposit them in union coffers.
In December of 1991, Bloom filed charges with the Board on behalf of himself and "similarly situated discriminatees" against Group Health and the union, alleging unfair 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 security clause. He alleged that Group Health and the union had enforced the illegal membership obligations required by that clause upon himself and others by deducting union dues without authorization, refusing to inform 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 the proceedings to the Board were approved. While the case was pending, Group Health and the union entered into a unilateral settlement agreement with the Board's General Counsel. Over Bloom's objections, the Board approved the settlement by unpublished order on September 29, 1993. The agreement purported to remedy the unfair labor practices detailed by Bloom by requiring the union to post notices "in conspicuous places in and about the employer's plant where they shall be maintained for 60 consecutive days from the date of posting." The notice essentially stated that Group Health would no longer deduct and the union would no longer accept union dues without authorization. It further stated that neither party would interfere with Group Health employees' rights under the Act and that the provision of the collective bargaining agreement requiring union membership would no longer be enforced "unless such provision also provides that employees need only pay the Union's periodic dues and initiation fees." The public notice also took care to single out Bloom as the employee who had filed charges with the Board. Bloom's complaint was then summarily dismissed.
Bloom petitioned for review pursuant to section 10(f) of the Act, 29 U.S.C. 160(f). We reversed the Board's approval of the settlement. See Bloom I, 30 F.3d at 1005. In particular, we concluded "that the settlement agreements are inadequate, for they do not delete the misleading union security clause that the charged parties unlawfully interpreted and applied." Id. at 1004. We also expressly rejected the idea that the presence of the unlawful clause in the bargaining agreement could be remedied by posting notice that the clause would not be enforced. See id. at 1005 (). Indeed, we concluded that the remedial notice itself 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 itself contrary to law, we noted, because employees can never be required to become union members or "pay all union dues and 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 the overly broad union security clause was unlawfully interpreted and applied," we 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 settlement agreement with the General Counsel. The revised settlement provided that Group Health and the union would amend their contract to delete the provision requiring that employees become members in good standing and substitute a provision providing that union membership is required, but only to the extent that employees must pay the union's periodic dues and initiation fees. Bloom objected to the revised settlement, contending 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, 1997 WL 101278 (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 Board filed a motion requesting that we remand the matter so that the Board might reconsider its order in light of 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 Group Health to amend the settlement agreement a third time. The third settlement deleted the "in good standing" phrase from the collective bargaining agreement and substituted the following 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 the Union, and all such Employees subsequently hired shall become members of the Union within thirty-one (31) calender 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.
Over Bloom's objections, the Board approved the settlement and issued its Supplemental Decision and Order on Remand. See Group Health, Inc., 325 N.L.R.B. No. 49, 1998 WL 45147 (Feb. 2, 1998) (Group Health III ).
We deal first 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 eleventh-hour 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 standing to petition for review of its order. We do not agree. Whenever the Board enters a final order against a charged party to its review proceeding, that party is a "person aggrieved"...
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