Marquez v. Screen Actors Guild, Inc., 96-35566

• Decision Date: 29 August 1997
• Docket Number: No. 96-35566,96-35566
• Citation: 124 F.3d 1034
• Parties: 156 L.R.R.M. (BNA) 2129, 134 Lab.Cas. P 10,049, 97 Cal. Daily Op. Serv. 7019, 97 Daily Journal D.A.R. 11,362 Naomi MARQUEZ, Plaintiff-Appellant, v. SCREEN ACTORS GUILD, INC., and Lakeside Productions, Inc., a foreign corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1034

124 F.3d 1034

156 L.R.R.M. (BNA) 2129, 134 Lab.Cas. P 10,049,

97 Cal. Daily Op. Serv. 7019,

97 Daily Journal D.A.R. 11,362

Naomi MARQUEZ, Plaintiff-Appellant, v. SCREEN ACTORS GUILD, INC., and Lakeside Productions, Inc., a foreign corporation, Defendants-Appellees.

No. 96-35566.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 7, 1997.

Decided Aug. 29, 1997.

Raymond J. LaJeunesse, Jr., National Right to Work Legal Foundation, Inc., Springfield, VA, for plaintiff-appellant.

Leo Geffner, Geffner & Bush, Burbank, CA, for defendant-appellee Screen Actors Guild, Inc.

Earle J. Hereford, Jr., Seattle, WA, for defendant-appellee Lakeside Productions.

Appeal from the United States District Court for the Western District of Washington; Barbara J. Rothstein, District Judge, Presiding. D.C. No. CV-94-01831-BJR.

Before: REAVLEY, ^* O'SCANNLAIN, and FERNANDEZ, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether the Screen Actors Guild breached its duty of fair representation when it refused to clear a part-time actress for work because she could not pre-pay full union dues.

I

Naomi Marquez is a part-time actress, represented by agents Scott Thompson and Ingrid Fuhriman at the Thompson Media Talent agency. Lakeside Productions ("Lakeside") is the producer of a television series called "Medicine Ball," and is an employer within the meaning of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 152(2) (1988). Heidi Walker of Dixon/Walker Casting ("Dixon/Walker"), was hired by Lakeside to serve as the casting director for the "Medicine Ball" project.

The Screen Actors Guild ("SAG" or "the union") is a labor organization within the meaning of the NLRA. See 29 U.S.C. § 152(5). SAG was the exclusive bargaining agent for performers working for Lakeside on the "Medicine Ball" series.

Lakeside and SAG entered into a collective bargaining agreement ("CBA") which included a union security term providing that any actor who had previously worked more than 30 days in the motion picture industry was required to be "a member of the Union in good standing" and to pay periodic dues and initiation fees. To assure compliance with the CBA, Lakeside was required to call in the names of all performers for clearance by "Station 12," a regional division of SAG. SAG then informed the producers of each employee's dues obligations to the union and whether or not they were cleared to work in the performance.

On August 29, 1994, Marquez successfully auditioned for a small role in Lakeside's "Medicine Ball" series, and accepted the offer. Dixon/Walker, as the casting director and in keeping with its normal procedure, called in Marquez's name for clearance with Station 12. Marquez had previously worked for more than 30 days in the motion picture industry: five years earlier, in 1989, she worked more than 30 days on a movie that was covered by a SAG agreement. This 1989 employment triggered the union security term in the CBA, and Marquez was now required by the CBA to pay union initiation fees and dues to SAG.

There is a dispute over whether Station 12 informed Dixon/Walker that Marquez "must join" SAG, or whether the words used were "must pay" SAG, before she would be eligible to work in the production. Regardless of the term used, Marquez understood that she was required to pay SAG before she would be eligible to work. She called the Seattle SAG office to inquire into the cost of joining the union, and was told that the fee was about $500. She would receive $550 for her work in the production, to be paid 30 days after her performance. Marquez told her agents that she could not afford to pay the fee before being paid for the job. Her agents, Thompson and Fuhriman, said they would attempt to work something out.

Ingrid Fuhriman made several phone calls on Marquez's behalf to Lakeside, Dixon/Walker and SAG over the next few days. She called SAG headquarters in Los Angeles to try to work out an arrangement. Fuhriman asked whether Marquez could pay the fees after being paid by Lakeside, as she could not afford to pay ahead of time. An unidentified SAG employee in the membership department said that this would not be possible, and that Marquez must pay before being cleared for work. It was also suggested that if Marquez could not pay in advance she could have up to 14 days after filming to pay. The SAG employee said that it would not be possible to wait the 30 days that it would take to be paid for the acting job, nor to agree simply to sign over her check to SAG. Fuhriman next spoke with Vicki Shapiro, SAG's legal counsel, who verified this information. Shapiro further testified that Fuhriman did not mention Marquez by name, nor say that Marquez objected to joining the union.

Marquez then contacted Hugh Reilly at the National Right to Work Legal Defense Foundation. He drafted a letter explaining that, under federal law, Marquez could not be required to join a union as a condition of employment, that SAG could only require that she pay a pro-rated share for services provided to all workers, ¹ and that she was entitled to a 30-day grace period before any fees could be required. A draft of this letter was sent to Thompson Media on September 2nd, and was later faxed to Dixon/Walker on September 6. Lakeside also received a copy of the letter, which it faxed to SAG on September 7.

September 7th was also the day before Marquez was to perform in the production, and the deadline established by Station 12 for Marquez to pay the union dues. As she had not paid by the deadline, Lakeside hired another performer to replace her, and filming took place on the 8th. That same day, Vicki Shapiro, SAG's legal counsel, faxed a letter to Lakeside saying that it had no objection to Marquez working in the production. This letter arrived too late to be of assistance to Marquez, who lost the job.

Marquez filed suit against SAG and Lakeside in December, 1994. First, Marquez claimed that SAG breached its duty of fair representation owed to all workers covered by the agreement when it negotiated and enforced a CBA requiring more from employees than federal law permitted by: (1) requiring membership in the union; (2) demanding full payment of union dues of Marquez, rather than informing her of her right to pay a lesser "core" amount; and (3) and by failing to grant a 30 day grace period for each period of employment.

Secondly, she claimed that SAG and Lakeside breached "implied terms" from federal law which are implicitly part of all CBAs. Lakeside and SAG breached these terms, according to Marquez, in negotiating and enforcing the union security term. She requested declaratory, injunctive, and monetary relief under both claims, as well as attorneys fees. The district court granted summary judgment to the defendants and Marquez filed this timely appeal.

II

As an exclusive bargaining representative of all employees in a bargaining unit, a union has a "statutory duty fairly to represent all of those employees" in the negotiation and enforcement of a collective bargaining agreement. Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967). This duty is enforceable by courts, even if the alleged breach arguably could be considered an unfair labor practice under NLRA § 8(b)(1)(A) and therefore otherwise under the exclusive jurisdiction of the NLRB. See Communications Workers of America v. Beck, 487 U.S. 735, 743, 108 S.Ct. 2641, 2647, 101 L.Ed.2d 634 (1988).

The duty of fair representation has been likened to a fiduciary duty owed by the union to all employees "to represent them adequately as well as honestly and in good faith." Air Line Pilots Ass'n Int'l v. O'Neill, 499 U.S. 65, 75, 111 S.Ct. 1127, 1133, 113 L.Ed.2d 51 (1991). The duty applies to "challenges leveled not only at a union's contract administration and enforcement efforts but at its negotiation activities as well." Beck, 487 U.S. at 743, 108 S.Ct. at 2647 (internal citation omitted).

A union breaches the duty of fair representation when "a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Vaca, 386 U.S. at 190, 87 S.Ct. at 916. The Supreme Court has enunciated a highly deferential standard for reviewing the substantive results of a union's negotiation efforts, which should be evaluated "in light of both the facts and the legal climate that confronted the negotiators at the time the decision was made." O'Neill, 499 U.S. at 78, 111 S.Ct. at 1135.

[T]he final product of the bargaining process may constitute evidence of a breach of duty only if it can be fairly characterized as so far outside a 'wide range of reasonableness' ... that it is wholly 'irrational' or 'arbitrary.'

Id. (internal citation omitted).

Marquez argues that SAG breached its duty of fair representation by negotiating and entering into a CBA with two unlawful terms: the union security clause and a 30-day term. Each contention will be dealt with in turn.

A

SAG and Lakeside entered into a collective bargaining agreement ("CBA") with a union security term which provides: "Every performer hereafter employed by any Producer ... shall be a member of the Union in good standing." ² Marquez contends that the union acted arbitrarily and in bad faith in negotiating this term because unions may not legally require full union membership as a condition of employment. We disagree.

The NLRA by its very terms allows the inclusion of a union security term requiring union "membership." At the same time, the concept of "membership" in CBAs has become a term of art: unions can require no more than payment of initiation fees and dues covering a "financial core" of services provided to all employees. See NLRB v. General Motors Corp., 373 U.S. 734, 742, 83 S.Ct. 1453, 1458, 10 L.Ed.2d 670 (1963). This core amount is limited to expenditures germane to "collective bargaining, contract administration, and grievance adjustment."...