OCTOBER TERM, 1998
Syllabus
MARQUEZ
v. SCREEN ACTORS GUILD, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 97-1056. Argued October 5, 1998-Decided November 3,1998
The collective bargaining agreement between respondent union,
the Screen Actors Guild (SAG), and respondent movie producer,
Lakeside Productions (Lakeside), contained a standard "union
security clause" tracking the language of § 8(a)(3) of the National
Labor Relations Act (NLRA), which authorizes "an agreement ... to
require as a condition of employment membership [in the union] on
or after the thirtieth day following the beginning of ... such
employment." The union security clause did not explain that this
Court has held that an employee can satisfy § 8(a)(3)'s
"membership" condition merely by paying to the union an amount
equal to its initiation fees and dues,
NLRB v.
General
Motors Corp., 373
U. S. 734, 742-743, and that §8(a)(3) does not permit unions to
exact dues or fees over the objection of nonmembers for activities
that are not germane to collective bargaining, grievance
adjustment, or contract administration,
Communications
Workers v.
Beck, 487 U. S.
735,745,762-763. The clause did specify, however, that its
30-day grace period provision should be interpreted "to mean that
[SAG] membership ... cannot be required of any performer until ...
30 ... days after his first employment as a performer in the motion
picture industry." Petitioner, a part-time actress who had
previously worked in the industry for more than 30 days,
successfully auditioned for a one-line role in a television series
produced by Lakeside, but was denied the part when she had not paid
SAG's required fees before beginning work. She filed suit alleging,
among other things, that SAG had breached its duty of fair
representation by negotiating and enforcing a union security clause
with two basic flaws. First, she averred, the clause required union
"membership" and the payment of full fees and dues when those terms
could not be legally enforced under
General Motors and
Beck. She argued that the collective bargaining agreement
should have contained language, in addition to the statutory
language, informing her of her rights not to join the union and to
pay only for the union's representational activities. Second, she
asserted, the clause term interpreting the 30-day grace period to
begin running with any employment in the industry contravened §
8(a)(3), which requires a new grace period with each "such
employment." The District Court granted summary judgment to the
defendants on all claims. Affirming in pertinent part, the
Ninth
34
Syllabus
Circuit held that SAG had not breached the duty of fair
representation merely by negotiating a union security clause that
tracked the NLRA language. The Ninth Circuit also held that
petitioner's challenge to the grace period provision was at base a
claim that the clause violated the NLRA and that this claim fell
within the primary jurisdiction of the National Labor Relations
Board (NLRB).
Held:
1. A union does not breach the duty of fair representation
merely by negotiating a union security clause that uses § 8(a)(3)'s
language without explaining, in the agreement, this Court's
interpretation of that language in
General Motors and
Beck. Pp. 42-48.
(a) In resolving this narrow question, the Court is
not
deciding whether SAG illegally enforced the union security clause
to require petitioner to become a union member or to pay dues for
noncollective bargaining activities. Similarly, the Court is
not deciding whether SAG breached its fair representation
duty by failing to adequately notify petitioner of her
Beck
and
General Motors rights. Pp.42-44.
(b) SAG did not breach its duty of fair representation by
negotiating a union security clause that tracked the statutory
language. A breach of that duty occurs when a union's conduct
toward a member of the bargaining unit is arbitrary,
discriminatory, or in bad faith.
E. g.,
Vaca v.
Sipes, 386 U.
S. 171, 190. Petitioner does not argue that SAG's conduct was
discriminatory, and, on this record, SAG's conduct cannot be said
to have been either arbitrary or in bad faith. The mere negotiation
of a contract that uses terms of art cannot be fairly characterized
as so far outside a wide range of reasonableness that it is wholly
irrational or arbitrary. See,
e. g., Air Line Pilots v.
O'Neill, 499 U.
S. 65, 78. After this Court in
General Motors and
Beck stated that the statutory language incorporates an
employee's rights not to "join" the union (except by paying fees
and dues) and to pay for only representational activities, SAG
cannot be faulted for using this very language to convey these very
concepts. Moreover, petitioner's assertion that SAG acted in bad
faith in that it had no reason to use the statutory language except
to mislead employees about their
Beck and
General
Motors rights is unpersuasive. This argument's first
component-in effect, that even if SAG always informs workers of
their rights and even if it enforces the union security clause in
conformity with federal law, use of the statutory language in the
agreement is intended to mislead employees-is unconvincing because
it is so broad. The second part of petitioner's bad faith
argument-that there was no other reason for SAG's choice of the
statutory language-fails because a union might choose that language
precisely
because it is a shorthand description of workers'
legal rights that
35
incorporates all of the refinements associated with it.
Petitioner's argument that the failure to explain all the
intricacies of a term of art in a contract is bad faith has no
logical stopping point; that argument would require that all the
intricacies of
every term used in a contract be spelled out.
Pp. 44-48.
2. Because petitioner's challenge to the union security clause's
grace period provision was based purely on an alleged inconsistency
with the statute, the District Court lacked jurisdiction over it. A
challenge to an action that is "arguably subject to § 7 or § 8 of
the [NLRA]" is within the NLRB's primary jurisdiction,
San Diego
Building Trades Council v.
Garmon, 359 U. S. 236, 245, but a
claim alleging a breach of the duty of fair representation is
cognizable in federal court,
e. g., Vaca v.
Sipes,
supra, at 177-183. However, the mere incantation of the phrase
"duty of fair representation" is insufficient to invoke the primary
jurisdiction of federal courts. When a plaintiff's only claim is
that the union violated the NLRA, the plaintiff cannot avoid the
NLRB's jurisdiction by characterizing this alleged statutory
violation as a breach of the duty of fair representation. See
Beck, 487 U. S., at 743. To invoke federal jurisdiction when
the claim is based in part on an NLRA violation, the plaintiff must
adduce facts suggesting that the union's statutory violation was
arbitrary, discriminatory, or in bad faith. Although federal courts
have power to resolve § 7 and § 8 issues that arise as collateral
matters in a duty of fair representation suit,
ibid., this
does not open the door for federal court first instance resolution
of all statutory claims. Applying these principles in this case,
petitioner's challenge falls squarely within the NLRB's primary
jurisdiction. Petitioner's argument that her challenge is
structurally identical to the duty of fair representation claim
considered in
Beck is rejected because the latter claim was
not premised on the mere unlawfulness of the union's conduct, but
on the fact that such conduct was arbitrary and possibly in bad
faith. Her challenge to the membership and fees requirements
discussed above is similarly distinguishable. Pp. 49-54.
124 F.3d
1034, affirmed.
O'CONNOR, J., delivered the opinion for a unanimous Court.
KENNEDY, J., filed a concurring opinion, in which THOMAS, J.,
joined,
post, p. 52.
Raymond J.
Lajeunesse, Jr., argued the cause and
filed briefs for petitioner.
Leo Geffner argued the cause for respondents. With him on the
briefs were Ira L. Gottlieb, Jonathan P. Hiatt, James B. Coppess,
and Laurence Gold.
36
JUSTICE O'CONNOR delivered the opinion of the Court. Section
8(a)(3) of the National Labor Relations Act (NLRA), 49 Stat. 452,
as added, 61 Stat. 140, 29 U. S. C. § 158(a)(3), permits unions and
employers to negotiate an agreement that requires union
"membership" as a condition of employment for all employees. We
have interpreted a proviso to this language to mean that the only
"membership" that a union can require is the payment of fees and
dues,
NLRB v.
General Motors Corp., 373 U. S. 734, 742
(1963), and we have held that § 8(a)(3) allows unions to collect
and expend funds over the objection of nonmembers only to the
extent they are used for collective bargaining, contract
administration, and grievance adjustment activities,
Communications Workers v.
Beck, 487 U. S. 735, 745,
762-763 (1988). In this case, we must determine whether a union
breaches its duty of fair representation when it negotiates a union
security clause that tracks the language of § 8(a)(3) without
explaining, in the agreement, this Court's interpretation of that
language. We conclude that it does not.
We are also asked to review the Court of Appeals' decision that
the District Court did not have jurisdiction to decide a claim that
a union breached the duty of fair representation by negotiating a
clause that was inconsistent with the statute. We conclude that
because this challenge to the union security clause was based
purely on an alleged inconsistency with the statute, the Court of
Appeals correctly held that this claim was within the primary
jurisdiction of the N ational Labor Relations Board (NLRB or
Board).
I A
The language of § 8(a)(3) is at the heart of this case. In
pertinent part, it provides as follows:
"I t shall be an unfair labor practice for an employer"(3) by
discrimination in regard to hire or tenure of employment ... to
encourage or discourage membership
37
in any labor organization: Provided, That 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 .... Provided further, That no employer shall
justify any discrimination against an employee for nonmembership in
a labor organization ... if he has reasonable grounds for believing
that membership was denied or terminated for reasons other than the
failure of the employee to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or
retaining membership." 29 U. S. C. § 158(a)(3).
This section is the statutory authorization for "union security
clauses," clauses that require employees to become "member[sJ" of a
union as a condition of employment. See
Communications
Workers v.
Beck, supra, at 744-745.
The conclusion that § 8(a)(3) permits union security clauses is
not the end of the story. This Court has had several occasions to
interpret § 8(a)(3), and two of our conclusions about the language
of that subsection bear directly on this case. First, in
NLRB v.
General Motors Corp., supra, at 742-743
(citing
Radio Officers v.
NLRB, 347 U. S. 17,41 (1954)),
we held that although § 8(a)(3) states that unions may negotiate a
clause requiring "membership" in the union, an employee can satisfy
the membership condition merely by paying to the union an amount
equal to the union's initiation fees and dues. See also
Pattern
Makers v.
NLRB, 473 U. S. 95, 106, n. 16,
108 (1985). In other words, the membership that may be required "as
a condition of employment is whittled down to its financial core."
NLRB v.
General Motors Corp., supra, at 742. Second,
in
Communications Workers v.
Beck, supra, we
considered whether the employee's "financial core" obligation
included a duty to pay for support of
38
union activities beyond those activities undertaken by the union
as the exclusive bargaining representative. We held that the
language of § 8(a)(3) does not permit unions to exact dues or fees
from employees for activities that are not germane to collective
bargaining, grievance adjustment, or contract administration.
Id., at 745, 762-763. As a result of these two conclusions,
§ 8(a)(3) permits unions and employers to require only that
employees pay the fees and dues necessary to support the union's
activities as the employees' exclusive bargaining
representative.
B
Respondent Screen Actors Guild (SAG or union) is a labor
organization that represents performers in the entertainment
industry. In 1994, respondent Lakeside Productions (Lakeside)
signed a collective bargaining agreement with SAG, making SAG the
exclusive bargaining agent for the performers that Lakeside hired
for its productions. This agreement contained a standard union
security clause, providing that any performer who worked under the
agreement must be "a member of the Union in good standing." App.
28. Tracking the language of § 8(a)(3), the clause also
provided:
"The foregoing [section], requiring as a condition of employment
membership in the Union, shall not apply until on or after the
thirtieth day following the beginning of such employment or the
effective date of this Agreement, whichever is the later; the Union
and the Producers interpret this sentence to mean that membership
in the Union cannot be required of any performer by a Producer as a
condition of employment until thirty (30) days after his first
employment as a performer in the motion picture industry .... The
Producer shall not be held to have violated this paragraph if it
employs a performer who is not a member of the Union in good
standing ... if the Producer has reasonable grounds for
39
believing that membership in the Union was denied to such
performer or such performer's membership in the Union was
terminated for reasons other than the failure of the performer to
tender the periodic dues and the initiation fee uniformly required
as a condition of acquiring or retaining membership in the Union
.... " Id., at 28-29.
The present dispute arose when petitioner, a part-time actress,
successfully auditioned for a one-line role in an episode of the
television series, Medicine Ball, which was produced by Lakeside.
Petitioner accepted the part, and pursuant to the collective
bargaining agreement, Lakeside's casting director called SAG to
verify that petitioner met the requirements of the union security
clause. Because petitioner had previously worked in the motion
picture industry for more than 30 days, the union security clause
was triggered and petitioner was required to pay the union fees
before she could begin working for Lakeside. There is some dispute
whether the SAG representative told Lakeside's casting director
that petitioner had to "join" or had to "pay" the union;
regardless, petitioner understood from the casting director that
she had to pay SAG before she could work for Lakeside. Petitioner
called SAG's local office and learned that the fees that she would
have to pay to join the union would be around $500.
Over the next few days, petitioner attempted to negotiate an
agreement with SAG that would allow her to pay the union fees after
she was paid for her work by Lakeside. When these negotiations
failed to produce an acceptable compromise and petitioner had not
paid the required fees by the day before her part was to be filmed,
Lakeside hired a different actress to fill the part. At some point
after Lakeside hired the new actress, SAG faxed a letter to
Lakeside stating that it had no objection to petitioner working in
the production. The letter was too late for petitioner; filming
proceeded on schedule with the replacement actress.
40
Petitioner filed suit against Lakeside and SAG alleging, among
other things, that SAG had breached the duty of fair
representation. According to petitioner, SAG had breached its duty
by negotiating and enforcing a union security clause with two basic
flaws. First, the union security clause required union "membership"
and the payment of full fees and dues when those terms could not be
legally enforced under
General Motors and
Beck.
Petitioner argued that the collective bargaining agreement should
have contained language, in addition to the statutory language,
informing her of her right not to join the union and of her right,
under
Beck, to pay only for the union's representational
activities. Second, the union security clause contained a term that
interpreted the 30-day grace period provision to begin running with
any employment in the industry. According to petitioner, this
interpretation of the grace period provision contravened the
express language of § 8(a)(3), which requires that employees be
given a 30-day grace period from the beginning of "such
employment." She interprets "such employment" to require a new
grace period with each employment relationship. Finally, in
addition to these claims about the language of the union security
clause, petitioner alleged that SAG had violated the duty of fair
representation by failing to notify her truthfully about her rights
under the NLRA as defined in
Beck and
General
Motors.
The District Court granted summary judgment to the defendants on
all claims, ruling first that SAG did not breach the duty of fair
representation by negotiating the union security clause. App. to
Pet. for Cert. 28a-29a. The court also determined that no
reasonable factfinder could conclude that SAG had attempted to
enforce the union security clause beyond the lawful limits.
Id., at 30a. Finally, the court ruled that petitioner's
challenge to the grace period provision was actually an unfair
labor practice claim, and thus it was preempted by the exclusive
jurisdiction of the NLRB.
Id., at 31a.
41
Petitioner appealed, and the Court of Appeals for the Ninth
Circuit affirmed in part and reversed in part.
124 F.3d
1034 (1997). The Court of Appeals reversed the grant of summary
judgment on petitioner's claim that SAG's enforcement of the union
security clause breached the duty of fair representation, finding
that there were genuine issues of material fact remaining to be
resolved on this issue. For example, the record contains
conflicting evidence on whether the union told petitioner that she
had to "join" the union, or whether it told her that she had to
"pay" the union.
I d., at 1041. The Court of Appeals also
reversed the grant of summary judgment on petitioner's claim that
the union had breached the duty of fair representation by failing
to notify her of her right, under
Beck, to pay only the
lesser "core" fees associated with the union's collective
bargaining functions. The District Court had not addressed this
claim, so the Court of Appeals remanded this issue for
consideration.
Id., at 1042-1043.
On the two issues before this Court, however, the Court of
Appeals affirmed the judgment of the District Court. First, the
court held that SAG had not breached the duty of fair
representation merely by negotiating a union security clause that
tracked the language of the NLRA. The court noted that the
statutory language had been given a specialized meaning, but
rejected petitioner's argument that the failure to fully explain
this meaning in the collective bargaining agreement was an
arbitrary or bad faith breach of the duty of fair representation.
The court noted that two other Courts of Appeals had recently
rejected similar claims.
Id., at 1038-1039 (citing
International Union Electronic, Electrical, Salaried, Machine
and Furniture Workers v.
NLRB, 41
F.3d 1532 (CADC 1994);
Nielsen v.
International Assn. of Machinists &
Aerospace
Workers, 94 F.3d
1107 (CA7 1996), cert. denied, 520 U. S. 1165 (1997)).
The Ninth Circuit's resolution of this issue is in tension with the
decisions of two other Courts of Appeals. See,
e. g.,
Buzenius v.
42
NLRB, 124 F.3d
788 (CA6 1997), cert. pending, No. 97-945;
Bloom
v.
NLRB, 30 F.3d
1001 (CA8 1994).
Second, the Court of Appeals affirmed the District Court's
judgment that it did not have jurisdiction over petitioner's
challenge to the grace period provision. The court acknowledged
that federal courts have jurisdiction over duty of fair
representation claims, but, noting our admonishment in
Beck
not to be deceived by a plaintiff's attempt to disguise an unfair
labor practice claim as a fair representation claim,
Communications Workers v.
Beck, 487 U. S., at 743,
the court held that petitioner's claim was not a fair
representation claim. According to the court, the statutory
question presented by petitioner's challenge to the grace period
provision was the central issue for resolution, and under these
circumstances, the claim fell within the exclusive jurisdiction of
the NLRB. 124 F. 3d, at 1039-1041.
We granted certiorari to resolve the conflict over the facial
validity of a union security clause that tracks the language of §
8(a)(3), and to clarify the standards for defining the primary
jurisdiction of the NLRB. 523 U. S. 1019 (1998).
II A
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 § 8(a)(3)? 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 SAG illegally enforced the union security clause
to require petitioner to become a member of the union or to require
her to pay dues for noncollective bargaining activities.
Petitioner's complaint includes a claim that the union breached the
duty of fair representation by enforcing the clause illegally, but
that claim is not before us. The Court of Appeals held that there
were factual disputes that precluded the grant of summary
43
judgment on this issue, and so this claim was remanded to the
District Court for further proceedings. 124 F. 3d, at 1041-1042.
Second, we are not deciding whether SAG breached its duty of fair
representation by failing to adequately notify petitioner of her
rights under
Beck and
General Motors. The Board has
held (and SAG concedes, see Brief for Respondent Screen Actors
Guild 35-36) that unions have an obligation to notify employees of
their
Beck rights. See
United Paperworkers Int'l Union
(Weyerhaeuser Paper), 320 N. L. R. B. 349 (1995), rev'd on
other grounds
sub nom. Buzenius v.
NLRB, supra;
California Saw and Knife Works, 320 N. L. R. B. 224 (1995),
enf'd
sub nom. International Association of Machinists &
Aerospace Workers v.
NLRB, 133
F.3d 1012 (CA7), cert. denied
sub nom. Strang v.
NLRB, post, p. 813. See also
Nielsen v.
International Assn. of Machinists &
Aerospace
Workers, supra, at 11141115 (recognizing such a duty on part of
union);
Abrams v.
Communications Workers of America,
59 F.3d
1373, 13781380 (CADC 1995) (same). The Board is currently in
the process of defining the content of the notification right to
give guidance to unions about what they must do to notify employees
about their rights under
Beck and
General Motors.
California Saw and Knife Works, supra; United Paperworkers Int'l
Union, supra. Petitioner's suit alleges that SAG failed to
notify her of her
Beck and
General Motors rights, but
this claim, too, is not before us. The Court of Appeals remanded
this claim to the District Court for reconsideration. 124 F. 3d, at
1042-1043.
With this background, the question we are resolving comes into
sharper focus. There is no disagreement about the substance of the
union's obligations: If a union negotiates a union security clause,
it must notify workers that they may satisfy the membership
requirement by paying fees to support the union's representational
activities, and it must enforce the clause in conformity with this
notification. The only question presented by this case is whether a
union breaches the
44
duty of fair representation merely by negotiating a union
security clause that uses the statutory language without expressly
explaining, in the agreement, the refinements introduced by our
decisions in
General Motors and
Beck. To rephrase the
question slightly, petitioner's claim is that even if the union has
an exemplary notification procedure and even if the union enforces
the union security clause in perfect conformity with federal law,
the mere negotiation of a union security clause that tracks the
language of the NLRA breaches the duty of fair representation. We
hold that it does not.
B
When a labor organization has been selected as the exclusive
representative of the employees in a bargaining unit, it has a
duty, implied from its status under § 9(a) of the NLRA as the
exclusive representative of the employees in the unit, to represent
all members fairly. See,
e. g., Ford Motor Co. v.
Huffman, 345
U. S. 330, 337 (1953);
Vaca v.
Sipes, 386 U. S. 171, 177
(1967). As we described this duty in
Vaca v.
Sipes,
the duty of fair representation requires a union "to serve the
interests of all members without hostility or discrimination toward
any, to exercise its discretion with complete good faith and
honesty, and to avoid arbitrary conduct."
Ibid. In other
words, a union breaches the duty of fair representation when its
conduct toward a member of the bargaining unit is arbitrary,
discriminatory, or in bad faith.
I d., at 190. See also
Air Line Pilots v.
O'Neill, 499 U. S. 65, 67 (1991)
(reaffirming this tripartite standard). In this case, petitioner
does not argue that SAG's negotiation of the union security clause
was discriminatory, so we only consider whether SAG's conduct was
arbitrary or in bad faith.
Petitioner argues that in
Beck, we redefined the standard
for evaluating when a union's conduct is "arbitrary." Petitioner
reads our decision in
Beck to hold that the union's conduct
was arbitrary
merely because its actions violated the
statute. According to petitioner, because we did not
45
elaborate on our conclusion that the union's statutory violation
was a breach of the duty of fair representation, we must have
concluded that it was "arbitrary." Brief for Petitioner 12. Under
this reading, the "arbitrary" prong of the duty of fair
representation standard is equated with "statutory violation." This
is an inaccurate reading of our decision in
Beck. It is true
that the focus of our attention in
Beck was whether the
union's conduct was consistent with § 8(a)(3) and that once we
found that it was inconsistent with the statute, we did not tarry
to explain how this conduct breached the duty of fair
representation. But we did not hold that the finding of a mere
statutory violation was sufficient to support a conclusion that the
union breached its duty. In
Beck, the union collected fees
and dues from bargaining unit employees under its statutory grant
of authority to serve as the exclusive bargaining representative.
But then it used that money for purposes wholly unrelated to the
grant of authority that gave it the right to collect that money,
and in ways that were antithetical to the interests of some of the
workers that it was required to serve. 487 U. S., at 743-744. It
was this latter aspect of the union's conduct, and not just the
fact that the conduct violated the statute, that made the union's
actions a breach of the duty of fair representation.
That our holding in
Beck did not alter the standard for
finding conduct "arbitrary" is confirmed by our decision in
Air
Line Pilots. In that case, decided three years after
Beck, we specifically considered the appropriate standard
for evaluating conduct under the "arbitrary" prong of the duty of
fair representation. We held that under the "arbitrary" prong, a
union's actions breach the duty of fair representation "only if
[the union's conduct] can be fairly characterized as so far outside
a 'wide range of reasonableness' that it is wholly 'irrational' or
'arbitrary.'" 499 U. S., at 78 (quoting
Ford Motor Co. v.
Huffman, supra, at 338). This "wide range of reasonableness"
gives the union room to make discretionary decisions and choices,
even if those judgments are
46
ultimately wrong. In
Air Line Pilots, for example, the
union had negotiated a settlement agreement with the employer,
which in retrospect proved to be a bad deal for the employees. The
fact that the union had not negotiated the best agreement for its
workers, however, was insufficient to support a holding that the
union's conduct was arbitrary. 499 U. S., at 78-81. A union's
conduct can be classified as arbitrary only when it is irrational,
when it is without a rational basis or explanation.
Ibid.
Under this standard, SAG's negotiation of a union security
clause with language derived from the NLRA section authorizing such
a clause is far from arbitrary. Petitioner argues that it is
irrational to negotiate a clause that cannot be enforced as
written. But this clause
can be enforced as written, because
by tracking the statutory language, the clause incorporates all of
the refinements that have become associated with that language.
When we interpreted § 8(a)(3) in
General Motors and
Beck, we held that the section, fairly read, included the
rights that we found. To the extent that these interpretations are
not obvious, the relevant provisions of § 8(a)(3) have become terms
of art; the words and phrasing of the subsection now encompass the
rights that we announced in
General Motors and
Beck.
After we stated that the statutory language incorporates an
employee's right not to "join" the union (except by paying fees and
dues) and an employee's right to pay for only representational
activities, we cannot fault SAG for using this very language to
convey these very concepts.
Petitioner also invites us to conclude that the union's conduct
in negotiating the union security clause breached the duty of fair
representation because it was done in bad faith. She argues that
the negotiation of this clause was in bad faith because the union
had no reason to use the statutory language except to mislead
employees about their rights under
Beck and
General
Motors. This argument has two components: that the union
intended to mislead workers, and
47
that the union had no other purpose but to mislead. Both claims
are unpersuasive. To understand why her first claim is
unconvincing, it is again helpful to recall the nature of the claim
being asserted here. Petitioner's argument is not that SAG chose to
use this language in the collective bargaining agreement after
determining that the use of this language in the contract would
deceive a large number of workers. Her argument is more ambitious.
According to petitioner, even if the union always informs workers
of their rights and even if it enforces the union security clause
in conformity with federal law, it is bad faith for a union to use
the statutory language in the collective bargaining agreement
because such use can only mislead employees. Petitioner's argument
fails because it is so broad. It is difficult to conclude that a
union acts in bad faith by notifying workers of their rights
through more effective means of communication and by using a term
of art to describe those rights in a contract workers are unlikely
to read. Under these circumstances, there is no intent to mislead,
so the first part of petitioner's "bad faith" argument fails.
The second part of petitioner's bad faith argument-that there
was no other reason for the union's choice of the statutory
language-also fails. The statutory language, which we have said
incorporates all of the refinements associated with the language,
is a shorthand description of workers' legal rights. A union might
choose to use this shorthand precisely
because it
incorporates all of the refinements. Petitioner argues that this
reason for failing to explain all of the intricate rights and
duties associated with a legal term of art is bad faith. The logic
of petitioner's argument has no stopping point; it would require
unions (and all other contract drafters) to spell out all the
intricacies of
every term used in a contract. Contracts
would become massive and unwieldy treatises, yet there would be no
discernible benefit from the increased mass. Because there is no
stopping point to the logic of petitioner's argument, we find it
unper-
48
suasive. Contrary to petitioner's claim, we conclude that it may
be perfectly reasonable for a union to use terms of art in a
contract.
Petitioner proposed one stopping point at oral argument: the
union security clause. Petitioner suggested that a union is only
required to explain the union security clause in intricate detail
because that is the only part of the contract where the union's and
the workers' interests diverge. Tr. of Oral Arg. 16. The union
security clause, however, is not the only part of the contract
where the union's interests diverge from the interests of the
employees. To take a simple example, the union's duty of fair
representation is implied from its status as the exclusive
bargaining representative of the bargaining unit workers. Under
petitioner's logic, the union would have to incorporate into the
collective bargaining agreement a section detailing the union's
obligations under this duty. Presumably, this section would have to
include discussions of judicial and NLRB interpretations of each
prong of the duty of fair representation and how those prongs limit
union conduct toward employees. Moreover, petitioner's rights under
Beck and
General Motors are not the only limits on a
union's power under a union security clause. For example, the NLRA
provides that workers with religious objections to supporting
unions cannot be forced to pay
any fees to a union, 29 U. s.
C. § 169, and it also provides that the workers cannot be forced to
pay fees that are discriminatory or excessive, § 158(b)(5). In
other words, petitioner's proposed stopping point is no stopping
point at all. A union's decision to avoid this slippery slope is
not
a fortiori a decision made in bad faith.
In sum, on this record, the union's conduct in negotiating a
union security clause that tracked the statutory language cannot be
said to have been either arbitrary or in bad faith. The Court of
Appeals correctly rejected petitioner's argument that, by
negotiating this clause, the union breached its duty of fair
representation.
49
III
The Court of Appeals also correctly refused to exercise
jurisdiction over petitioner's challenge to the 30-day grace period
provision of the union security clause. Petitioner argues that all
duty of fair representation claims are cognizable in federal court,
and that because she couched her claim as a breach of the duty of
fair representation, her claim by definition can be heard in
federal court. Brief for Petitioner 24-25. For this proposition,
petitioner relies on
Breininger v.
Sheet Metal
Workers, 493 U. S.
67 (1989). Petitioner's starting point correctly describes the
law. When a plaintiff challenges an action that is "arguably
subject to § 7 or § 8 of the [NLRA]," this challenge is within the
primary jurisdiction of the NLRB.
San Diego Building Trades
Council v.
Garmon, 359 U. S. 236, 245
(1959). These claims are within the primary jurisdiction of the
NLRB in part to promote the uniform interpretation of the NLRA.
I d., at 242-243. But when a plaintiff alleges a breach of
the duty of fair representation, this claim is cognizable in the
first instance in federal court.
Vaca v.
Sipes, 386
U. S., at 177-183;
Breininger v.
Sheet Metal Workers,
supra, at 73-84. In
Breininger, we rejected the
invitation to create exceptions to this rule based on the expertise
of the NLRB, the subject matter of the complaint, or the presence
of any other factor. 493 U. S., at 75-77. Thus, petitioner is on
solid ground to argue that if her challenge to the grace period
provision is a duty of fair representation claim, the lower courts
erred in refusing to exercise jurisdiction over that claim.
The qualification-if her challenge is a duty of fair
representation claim-is important. The ritualistic incantation of
the phrase "duty of fair representation" is insufficient to invoke
the primary jurisdiction of federal courts. As we noted in
Beck, "[e]mployees ... may not circumvent the primary
jurisdiction of the NLRB simply by casting statutory claims as
violations of the union's duty of fair representation." 487 U. S.,
at 743. When a plaintiff's only claim is
50
that the union violated the NLRA, the plaintiff cannot avoid the
jurisdiction of the NLRB by characterizing this alleged statutory
violation as a breach of the duty of fair representation. To invoke
federal jurisdiction when the claim is based in part on a violation
of the NLRA, there must be something
more than just a claim
that the union violated the statute. The plaintiff must adduce
facts suggesting that the union's violation of the statute was
arbitrary, discriminatory, or in bad faith.
This does not mean that federal courts cannot resolve statutory
issues under the NLRA in the first instance. Although federal
district courts cannot resolve pure statutory claims under the
NLRA, they can resolve statutory issues to the extent that the
resolution of these issues is necessary for a decision on the
plaintiff's duty of fair representation claim.
Ibid.
(quoting
Connell Constr. Co. v.
Plumbers, 421 U. S. 616, 626
(1975)). Thus in
Beck, we resolved the statutory question
because it was collateral to the duty of fair representation claim,
and that claim was independently within the jurisdiction of the
federal courts. 487 U. S., at 743-744. The power of federal courts
to resolve statutory issues under the NLRA when they arise as
collateral matters in a duty of fair representation suit does not
open the door for federal court first instance resolution of all
statutory claims. Federal courts can only resolve § 7 and § 8
claims that are collateral to a duty of fair representation
claim.
Applying these principles in this case, petitioner's challenge
to SAG's grace period provision falls squarely within the primary
jurisdiction of the NLRB. Her claim is that SAG employed a term in
the collective bargaining agreement that was inconsistent with the
NLRA. This allegation, although framed by the recitation that this
act breached the duty of fair representation, is at base a claim
that SAG's conduct violated § 8(a)(3). This claim is not collateral
to any independent basis for federal jurisdiction; there are no
facts alleged suggesting that this violation was arbitrary,
discrimi-
51
natory, or in bad faith. Petitioner argues that the term is
misleading because it misrepresents the employee's obligations as
stated in the NLRA, but this transparent attempt to avoid the
jurisdiction of the NLRB is unconvincing. This term is not
misleading; the only question is whether the term is consistent
with federal law. Because petitioner's only argument is that the
term is inconsistent with § 8(a)(3), her claim falls within the
primary jurisdiction of the NLRB.
Petitioner attempts to avoid this conclusion by arguing that her
challenge to the grace period provision is structurally identical
to the duty of fair representation claim considered in
Beck
and to the duty of fair representation claim considered in the
first part of this opinion. Brief for Petitioner 24-25. Thus,
according to petitioner, because these claims were cognizable in
federal trial court, so is her challenge to the grace period
provision. But in
Beck it was the union that relied on §
8(a)(3) as a defense to the plaintiffs' claim that it breached the
duty of fair representation. When a claim that a union has breached
its duty of fair representation is based in part on an alleged
violation of the NLRA, it must be independently supported by some
allegations describing arbitrary, discriminatory, or bad faith
union conduct. Thus, as we described above, in
Beck, the
duty of fair representation claim was not premised on the mere
unlawfulness of the union's conduct. The basis for the fair
representation claim was that the union's conduct was arbitrary and
possibly in bad faith. Petitioner's challenge to the membership and
fees requirements of the union security clause is similarly
distinguishable from her challenge to the grace period provision.
The claim we considered in the first part of the opinion was that
the union's negotiation of the union security clause breached the
duty of fair representation because it was arbitrary and in bad
faith for the union to negotiate a clause that might mislead
employees. This claim, like the claim considered in
Beck, is
not solely about the interpretation of the statute. Petitioner's
challenge to
52
the grace period provision, by contrast, is at most an
allegation that the union violated the statute. This claim is
quintessentially an issue for resolution by the NLRB, and the Court
of Appeals correctly refused to uphold District Court jurisdiction
over it.
Accordingly, the judgment of the United States Court of Appeals
for the Ninth Circuit is affirmed.
It is so ordered.
JUSTICE KENNEDY, with whom JUSTICE THOMAS joins, concurring.
I join the opinion of the Court and offer these further
observations.
First, the opinion does not address circumstances in which there
is evidence that a security clause such as this one was used or
intended to deceive or injure employees. Our sole conclusion is
that mere recitation of the statutory language within a security
clause does not, without more, violate the duty of fair
representation. The Court of Appeals in this case understood that
the record, on further development at trial, might support a
finding that the union misinformed the petitioner of her membership
obligations. The wording of the clause might well have some bearing
on that determination. The Court of Appeals' remand for trial on
the union's conduct toward the petitioner is not before us. As the
issue is not addressed, our opinion is not inconsistent with the
Court of Appeals' ruling. There is also a suggestion in the record,
see,
e. g., App. 34-35, that the security clause in this
case may have been used or intended to mislead a potential employer
to the petitioner's detriment. If further developed, evidence to
this effect would likely be relevant to the claim that remains for
trial; our opinion should not be misunderstood to suggest
otherwise.
The security clause at issue required, as conditions of
employment, "member[ship] in good standing," id., at 28, and
payment of "the periodic dues and the initiation fee uni-
53
formly required as a condition of acquiring or retaining
membership in the Union," id., at 29. As recognized by other courts
and by members of the National Labor Relations Board, language like
this can facilitate deception. See,
e. g.,
Bloom v.
NLRB, 153 F.3d
844, 850-851
(CA8 1998) ("As Bloom can well attest, when
an employee who is approached regarding union membership expresses
reluctance, a union frequently will produce or invoke the
collective bargaining agreement .... The 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,' ... but one of
deception");
Wegscheid v.
Local 2911,
Int'l Union,
United Automobile, Aerospace and Agricultural Implement
Workers, 117 F.3d
986, 990
(CA7 1997) ("[T]he only realistic explanation
for the retention of the statutory language in collective
bargaining agreements ... is to mislead employees about their right
not to join the union");
Monson Trucking, Inc., 324 N. L. R.
B. No. 149, pp. 6-8 (Chairman Gould, concurring) ("[A]
collective-bargaining agreement that speaks in terms of
'membership' or 'membership in good standing' without further
definition misleads employees into believing that they can be
terminated if they do not become formal, fullfledged union
members"). As I understand the Court's opinion, there is no basis
in our holding today for an inference that inclusion of the
statutory language is somehow a defense when a violation of the
fair-representation duty has been alleged and facts in addition to
the bare language of the contract have been adduced to show the
violation. Rather, our holding reflects only the conclusion that
the negotiation of a security clause containing such language does
not necessarily, or in all circumstances, violate this duty.
Furthermore, 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. As the
54
Court's opinion makes clear, a claim for breach of the duty of
fair representation in circumstances such as those presented here,
unlike an unfair-labor-practice claim, must be predicated on more
than a simple violation of the National Labor Relations Act.
These issues are matters yet to be determined.
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