MARQUEZ v. SCREEN ACTORS GUILD

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Argument of Raymond J. LaJeunesse, Jr.

Chief Justice Rehnquist: We'll hear argument next in Number 97-1056, Naomi Marquez v. Screen Actors Guild.

Do not talk until you get out of the courtroom.

The Court remains in session.

Mr. LaJeunesse.

Mr. LaJeunesse: Mr. Chief Justice, and may it please the Court:

This case presents three issues under the National Labor Relations Act.

First, does a union breach its duty of fair representation by negotiating a contract that falsely tells employees they must be union members and pay full dues to keep their jobs when this Court has held, and the union concedes, that neither of those requirements may lawfully be enforced?

The second question is whether the National Labor Relations Board has exclusive jurisdiction over a performer's claim that the Screen Actors Guild, or SAG, breached its duty of fair representation by negotiating a contract that misinforms performers who have been employed in the motion picture industry for 30 days or more that they must meet their union obligations under a union security clause immediately upon hire by any employer in that industry.

And third, is the employer a necessary party in this case because the plaintiff employee is seeking reformation of the misleading contract provisions?

I will submit the last issue on the briefs today and only address the first two issues, because neither the union nor the employer has opposed our arguments on the third issue.

Of course, I'll be glad to answer any questions that the Court has throughout any of the three issues.

The first question is whether this contract breaches the duty of fair representation on its face, because it says that more is required of employees as a condition of employment than can lawfully be required.

Justice O'Connor: Well, the contract was written in the language of the statute, I gather.

Mr. LaJeunesse: That is correct, Your Honor.

It was...

Justice O'Connor: And the statute doesn't make it all that clear itself, but I guess there's a judicial gloss on it.

Mr. LaJeunesse: That's my point, Your Honor.

This Court...

Justice O'Connor: And why shouldn't the employee assume the judicial gloss is there?

I mean, why does it have to be spelled out in the contract?

Mr. LaJeunesse: To put it simply, Your Honor, the employee is not a lawyer.

A lawyer can be expected to determine what the judicial gloss on the statute is, but...

Justice Scalia: What other portions of the contract that are very intricate have to be spelled out for the employee?

I mean, is that the obligation of the union, to make every provision of a contract that affects the employee clear to the employee?

My goodness.

Mr. LaJeunesse: No, Your Honor.

Justice Scalia: Well, where do we draw the line?

Mr. LaJeunesse: We draw the line at the union security clause, because that is the only provision of the contract as to which the interests of the individual employee are adverse, and as to which the union has a duty to inform employees truthfully and fully as to what their rights and obligations are.

Justice Stevens: Well... go on.

Justice Souter: NO...

Go on...

But isn't the fact that the union can do so other than by putting an express gloss on the contract language, or changing the language of the contract, a sufficient response to the problem that you raise?

Mr. LaJeunesse: I don't believe so, Justice Souter, because the contract is the basic law of the shop.

Justice Souter: No, but the fact is, the employee is quite un... is far less likely to read the contract than to have contact with union representatives, who have, as you acknowledge, an obligation to explain, in fact, what those terms mean and what the employee's real obligation is, so it seems to me that you're arguing for a formality which the average employee is likely, unlikely even to take notice of.

Mr. LaJeunesse: I don't believe that I'm arguing for a formality, Your Honor.

I believe that, as this Court held in Beck and has held in other cases, the union has a duty to act fairly with regard to all employees in the bargaining unit both in negotiating the contract and in enforcing it and...

Justice Ginsburg: What does that say with negotiating the contract?

I wasn't aware that Beck... if Beck said that there has to be in the contract this clause that you're urging there would be nothing to argue about, but my understanding is that the contract not only reflects the language of the statute but the NLRB's... what it was... is it Keystone Coat, or whatever it is, their model clause.

And the NLRB still hasn't gotten around to replacing that model clause, so whatever else this is, how can it be a violation of the duty of fair representation to keep in the contract what the NLRB and the statute say is okay, as long as the union notifies anyone who doesn't want to be a member that, right, you don't have to be a member?

Mr. LaJeunesse: There are two points to your question, Your Honor.

First, you say that the National Labor Relations Board hasn't replaced it.

It's true that the board hasn't replaced it, but in Electronic Worker's Local 444 in 1993, more than a year before SAG negotiated this contract with this employer, the board overruled the Keystone Coat clause, saying that it was, in fact, ambiguous and would have the effect of misleading employees.

And secondly, with regard to the statute itself, the statute is not just what the statute says, after this Court has authoritatively interpreted it and placed a judicial gloss on it, which as Judge Posner and the Seventh Circuit said actually inverted the meaning of the statute.

The employee isn't going to know what that statute means.

The contract would say...

Justice O'Connor: Well, Mr. LaJeunesse...

Mr. LaJeunesse: go read the statute, and they'd still be misled.

Justice O'Connor: Suppose... suppose the contract had been written with all the complicated things you want in there, so that she would have had to come up with, what, $485 instead of $500 to join the union, she still wouldn't have gotten the job, because she didn't have the money.

How was she injured by the contract?

Mr. LaJeunesse: Well, she was injured because the casting agent in this case enforced the contract as it was written, saying, you are not going to work tomorrow if you don't pay the full amount demanded by the union by 5:00 this afternoon.

Justice O'Connor: Yes, the point is, I guess... you say the correct amount would have ben $485 instead of $500 and the contract could have made that clear, but she didn't have $485 either, so she still wouldn't have gotten the job.

How did the contract hurt her, even if it had been written as you want it written?

Mr. LaJeunesse: Well, there are two answers to that question, Your Honor.

Number 1, under this Court's Hudson decision the union would have had to give her notice of the reduced amount and an opportunity to object to its calculation, which would have been some period of time, typically 30 days.

By that time she would have done the job and she would have been paid by the employer, and then she could have paid the union.

In fact, she was willing, as she testified, I believe at her deposition, that she would have signed an agreement...

Justice Scalia: Regulatory lag would have saved her.

Justice Breyer: Is that...

Mr. LaJeunesse: Correct, Your Honor.

That's the first answer.

And the second answer is that this contract is in a... as the union makes a big point of in its brief, in a standard form contract that it uses with all employers, so Marquez is going to face this problem every time she goes to audition for a new job on a SAG-covered production, and she...

Justice Souter: Yes, but that's because of the 30-day problem, not because of the Beck problem.

Mr. LaJeunesse: Well, it's because of all of the problems, Your Honor.

She shouldn't have to retain an attorney every time she goes to an audition.

Justice Souter: Well, I think Justice O'Connor's question was addressed to the Beck problem and saying, given the fact that she could not, in fact, have satisfied the obligation even if Beck had been applied in the drafting of the contract, as you say it should be, where is her harm?

I think it was a Beck question.

Mr. LaJeunesse: Well, if you focus only on the Beck problem, but if you look at all of the aspects in which...

Justice O'Connor: Well, let's focus on the Beck problem, which is what I tried to get you to do but failed.

Mr. LaJeunesse: Well, I think I... I thought I answered the question, that the time lag...

Justice Scalia: I didn't understand it.

Mr. LaJeunesse: that she would have been allowed under this Court's decision in Hudson to challenge that calculation would have given her time to do the job.

Justice Scalia: She wouldn't have challenged it unless she had reason to challenge it, I assume.

You mean, she would have routinely challenged it, just for the heck of it, just... I mean...

Mr. LaJeunesse: Well, I suspect...

Justice Scalia: gaming the system that way?

Mr. LaJeunesse: No.

I suspect that, Your Honor...

Justice Kennedy: Surely she wouldn't have done that.

Mr. LaJeunesse: by this point, when the union was... whether... as you know, there is a question in the record as to whether the union... Ninth Circuit remanded for the district court to determine a disputed issue of fact as to whether the union was, in fact, demanding full membership, but there's no dispute over the fact that they were demanding payment of full dues without saying she had a right to...

Justice Scalia: It doesn't matter.

Mr. LaJeunesse: a reduced amount under Beck.

Justice Scalia: But she couldn't afford $485 any more than she could afford $500 I don't see how she's hurt, and I don't think it's enough to say, well, she might have protested it and bought herself a month.

Well, she might have.

She might not have.

Mr. LaJeunesse: Well, I believe she has...

Justice Scalia: I mean, it seems to me it's your burden to show standing.

Mr. LaJeunesse: Well, Your Honor, I believe she does have standing to challenge this misleading language, because that contract is going to be there, facing her every time she goes to audition on a new SAG-covered job, and the duty of fair representation, it seems to me, is not met where an employee has...

Justice Scalia: Capable of repetition and...

Mr. LaJeunesse: Correct, Your Honor.

Justice Scalia: Okay.

Mr. LaJeunesse: The employee... the duty of fair representation is not met where the employee has to hire an attorney to try to convince casting agents who are reading the language of the contract that they should apply the judicial gloss and not the actual terms of the contract.

Justice Kennedy: I don't understand the capable of repetition.

She knows now because you've talked to her and she's read the briefs.

Mr. LaJeunesse: She knows now, Your Honor, but the casting agents at the point of hire who make these decisions to hire or fire don't know and they, like the casting agent in this case, look to the language of the contract.

When Ms. Marquez' talent agent on the day before the job was to be performed talked to the casting agents, said, we have consulting an attorney, you are demanding more than the law allows, the answer from the casting agent was, we have a union contract, we have to apply that contract as written, if she doesn't pay...

Justice Scalia: We thought that language fairly meant what Beck said.

How can we criticize the union for including the same language?

I mean, it's sort of a dog-in-the-manger thing for us to do.

It was we who said that the language means this thing.

Now you want us to say no, the language doesn't mean this thing, and you should have explained what it really means.

Mr. LaJeunesse: No, I...

Justice Scalia: I mean, maybe you should ask some other court to do that, but this Court...

Unidentified Justice: [Laughter]

Justice Scalia: This Court says that language means this, and you now want us to say no, this language really doesn't mean this, and you should have explained what it does mean.

Mr. LaJeunesse: I'm not sure I understand your question, Your Honor.

What I'm asking this Court to do is say that the judicial gloss should be in the contracts...

Justice Breyer: Why?

Justice Scalia: Why?

Justice Breyer: Mr.... Mr....

Mr. LaJeunesse: as well as in the statements that the union makes outside the contract.

Justice Stevens: But the fact that it's judicial gloss means that it is in the contract.

That's what the judicial gloss is.

Mr. LaJeunesse: As to the parties to the contract...

Justice Souter: Right.

Mr. LaJeunesse: Justice Stevens, but not as to the man in the street, the average employee in the shop, the average shop steward...

Justice Stevens: But is there any allegation that anybody misled her as to what it meant?

I mean, did the union ever refuse to explain this, or anything like that?

Mr. LaJeunesse: They have an affirmative duty to explain it.

You don't have to ask a question.

The employee doesn't have to ask the question to trigger the duty of fair representation.

Justice Kennedy: But did she...

Mr. LaJeunesse: The duty of fair representation is a positive one that the union has to perform even if the employee might fortuitously discover what their rights really are from some other source.

Justice Ginsburg: The notice question...

But where would they have... well...

is a different one, isn't it?

The question of... and there's been a lot of litigation on that, too, and there's no doubt that the union has to give fair notice and an opportunity to do all that.

So I go back to the question that was raised earlier.

Is this all the most formal objection?

I mean, everybody agrees on the substance of the union's obligation.

It must notify workers that they don't have to join the union and they have to pay only for collective bargaining-related things.

Everybody agrees that's the obligation.

The only question is, must they put it in the contract, and I think we can all agree that most people don't read the collective bargaining contracts, but they will read the union's newsletter that will say it ought to pay the full dues.

Mr. LaJeunesse: I think it's clear from this case and from other cases that the fact that the misleading in the contract does result in people being affirmatively misled.

Justice Breyer: Well, but...

Mr. LaJeunesse: Buzenius...

Justice Ginsburg: By the union, or by here... you said it was the person at the employer's place.

Mr. LaJeunesse: Well, in other cases it's been by the union officials.

In, for example, the Buzenius and the Bloom cases where...

Justice Ginsburg: But here there was nothing... the only thing that you allege that the union did is, it copied the statute into the contract.

You don't allege any misleading on the part of the union.

Mr. LaJeunesse: But they knew when they copied the language of the contract... of the statute into the contract that it could not be enforced as written.

What justification is there for not putting it in the contract with the judicial gloss, which is very simple to do?

Justice Scalia: The where will it end... the where will it end argument is a persuasive one for me.

If I start having to interpret everything in the contract so that a nonlawyer can figure out what it means, you know, I'll be here all night.

Justice Breyer: What will happen to the legal profession.

The...

Mr. LaJeunesse: It will end... it will end with the union security clause, Your Honor, because that's the only case in which the union has a self-interest in misleading employees.

All other aspects of the contract are cases where the interests of the union and the employees are coincident.

Here they are contrary.

Justice Breyer: It might... I think this principle that you should write all these things so that people who aren't lawyers can understand them may be a helpful principle, but I think it might be precatory.

It might not be the law, all right.

If I think that, so that you still can have terms of arts in contracts, I'm still stopped by Justice O'Connor's question, and I want to be absolutely clear, because it sounds to me as if your answer is, there is no answer.

Now, I take it her question was, how was Mrs. Marquez hurt, and as far as I could tell, looking through this, you have lots of testimony that the reason that she couldn't join in any forum is she didn't have the $500.

You also have testimony in the record that her agents fully understood that.

They understood the difference between core membership and noncore membership, and you have no evidence in the record to the contrary.

Now, if that's the state of the record, then how could anybody say that this particular argument you're making, the fact that she'd have to pay $500, or $480 rather than $500, is an interesting argument, but really has nothing to do with this case as far as Mrs. Marquez.

I take it that was Justice O'Connor's question.

I'm just being repetitive, but I want to be absolutely certain that there is no answer to it before I think that that's what you've said.

Mr. LaJeunesse: Well, I had two answers to Justice O'Connor's question.

One was the fact that, as Justice Scalia described, the bureaucratic...

Justice Scalia: Lag.

Mr. LaJeunesse: lag would have given her an opportunity to earn the money to be able to pay the reduced...

Justice Breyer: Well, I know... I... yes.

Mr. LaJeunesse: My second point was that this is a contract provision that Ms. Marquez has to face every time she auditions for a job on a SAG-covered production.

Justice Scalia: We can count on the fact that she's going to be without 500 bucks for the rest of her life?

Unidentified Justice: [Laughter]

Mr. LaJeunesse: No, but we... Justice Scalia, we can count on the fact that the likelihood is there that casting agents will continue to rely on the misleading language of the contract because they do not know the judicial gloss.

Justice Souter: No, but you have said... I think you have said in the course of your argument that the union failed in the responsibility which you've characterized as an affirmative responsibility to advise her about what her rights were.

You did say that, didn't you?

Mr. LaJeunesse: That's correct, Your Honor.

Chief Justice Rehnquist: Okay.

Justice Souter: Number 1, you could have raised that as an allegation and we'd have a very different case here, wouldn't we?

We wouldn't be worrying about the contract language.

We would be worrying about the union's failure to perform the obligation that you say it has.

Mr. LaJeunesse: Well, we did...

Justice Souter: So you could have brought a different case, couldn't you?

Mr. LaJeunesse: Well, we did bring that case, Your Honor, and the Ninth Circuit sent that back to the district court for the district court to determine whether the union failed in its duty, in its statements outside the collective bargaining contract.

Justice Breyer: Okay.

Justice Souter: So that...

Mr. LaJeunesse: The case here is whether... the facial language of the contract.

Justice Souter: That may be your avenue, but doesn't it also point to the problem... to the... your answer to the standing problem, and that is, you said to Justice Scalia, every time she looks for a job the casting agent is going to hold up this contract.

But that assumes that the union is going, every time when she inquires, to fail to tell her what she really has to do, i.e., tell her that she can get by with $480 rather than $500, and we can't make that assumption, can we?

Mr. LaJeunesse: We can't make that assumption, but we know...

Justice Souter: No, but what you're saying what's wrong here is that the casting agent is going to give her the wrong information.

It's going to say, you're obligated to become a full member, and the answer to that is, the union has an affirmative obligation to tell her that she doesn't have to do that, so that isn't the answer to your answer to Justice Scalia simply the recognition that the union presumably, in the absence of evidence to the contrary, will not refuse every single time to fulfill its obligation?

Justice Scalia: Or she could just read the pleadings in this lawsuit.

Justice O'Connor: Do those...

Mr. LaJeunesse: But I have to return to what this Court held in Beck, and that is that the union has a duty of fair representation both in negotiating and enforcing the union security clauses to ensure that employees are not misled as to their rights.

And what possible justification is there for negotiating a contract that states the bare, misleading language of a statute when there is a easily described judicial gloss out there that could be put in the contract and avoid all of these problems.

Justice Stevens: Well, as to the future...

Justice Kennedy: Well, may I ask...

the justification is that, a) she knows what the judicial gloss is, and b) there's no indication that the union won't give the same information to the casting agent, so it's not likely to recur.

Mr. LaJeunesse: Well, I don't... that's an assumption I think we cannot make on this record, Your Honor.

I... I...

Justice Stevens: Well, is there an affirmative allegation on her part that she did not know what the contract meant?

Mr. LaJeunesse: No.

The allegation is that she was not informed what her rights were.

She found out...

Justice Stevens: But maybe she didn't have to be, because she already knew, as far as the...

Mr. LaJeunesse: No, she didn't already know, Your Honor.

She found out fortuitously because her talent agent had had a problem in the past and referred her to an attorney because the talent agent thought there was a problem here.

But the duty of fair representation surely does not put the onus on the employee.

It puts it on the union.

Justice Ginsburg: Mr. LaJeunesse, I've got a question about, this duty of fair representation starts out as a rather heavy concept, race discrimination by the union, and now we're talking about what has to be in the contract as opposed to the substance of the allegation we know, and it seems to me to say this is a question of violation of a duty of fair representation.

Instead of saying, this is arguably an unfair labor practice, it should be... go to the board and then be reviewed by the courts, instead of rushing into court with, this is the union's really bad act, it violated the duty of fair representation, when it's... when the piece of this that we're concerned with is just what's in the contract, not conduct, deceptive conduct by the union, just what's in the contract.

Mr. LaJeunesse: Well, that defense was raised by the union in Beck, Your Honor, and this Court said in Beck that the union, in negotiating the contract or enforcing it, had breached the duty of fair representation by requiring more than is permitted by section 8(a)(3), and that because it's a duty of fair representation claim, it belongs in court.

It is not preempted.

Now, the Ninth Circuit recognized that with regard to the claim that what... that the union misrepresented what Ms. Marquez' obligations were and litigated that and decided that issue, and it's now before this Court.

The Ninth Circuit, however, said that the claim with regard to the 30-day employment in the industry clause was preempted and subject to the board's exclusive jurisdiction.

There is no logical reason, as Chief Judge Posner of the Seventh Circuit held in Wegscheid, for distinguishing between statements in the agreement and statements outside the agreement.

Justice Breyer: It's... that's exactly... just what Justice Ginsburg asked is what I find a very difficult question, and why I'm... that's just what you're about... let me flag specifically the language in Beck.

Just after the sentence you said, they go on to say, employees, of course, may not circumvent the primary jurisdiction of the NLRB simply by casting statutory claims as violations of the union's duty of fair representation.

And what I was having difficulty with in thinking of that second issue in this case is, how do you distinguish where that sentence does or doesn't apply?

I mean, after all, any claim that the union has violated the labor act, you could find some employee to go in and say, they violated the labor act and, moreover, it violates the duty of unfair representation.

There would be no primary jurisdiction left.

Mr. LaJeunesse: I don't...

Justice Breyer: Once we accept that, then what can the employee complain about?

How do we draw that line?

There's no brief here by the board.

I'm having trouble understanding how to draw that line between when you can and when you cannot, as an employee, assert in an unfair labor... you see the problem?

Mr. LaJeunesse: I see the problem you're posing...

Justice Breyer: All right.

Justice Scalia: What's the answer?

Justice Breyer: Thank you.

Mr. LaJeunesse: but I think the problem is not as great as you believe it is, Your Honor.

The... there is no problem, because the Court so held in Beck, and the union concedes this, that where... in its brief on page 43, I believe it is, that... I think it's page 43.

Yes, it is... that the duty of fair representation is breached when the union misleads employees about their rights under a union security clause.

Justice Breyer: I'm talking... I'm thinking about the 30-day problem.

Mr. LaJeunesse: And they argue, well, if the employee is misled about what their obligations are, that's a breach of the duty of fair representation and properly belongs in court, but somehow, if the union misleads the employee about when their obligations begin, that's not a breach...

Justice Breyer: No, no, it wasn't misleading.

I'm thinking of the particular claim, too, which I thought was not a claim of misleading, but rather the claim that you have to join after 30 days cannot be interpreted by the guild as a claim that you have to join after 30 days of work in the screen industry even if those 30 days took place over a 2-year period for 30 different employers.

Now, I think your claim there was that that violates the language, or the... violates 8(a)(3).

Mr. LaJeunesse: Well, our claim was, stated in the complaint, stated in our motion for summary judgment, argued in the Ninth Circuit, that the union breached the duty of fair representation by misrepresenting when her obligations lawfully began.

Justice O'Connor: Well, the...

Mr. LaJeunesse: It was a claim...

Justice O'Connor: The contract refers to employment in the industry, and you say the statute makes it clear it's employment for that employer.

Mr. LaJeunesse: Right, because the...

Justice O'Connor: So that you say, as to the 30-day thing, there was a clear violation of the statutory requirement.

Mr. LaJeunesse: Well, so is there under Beck.

It's... there's a clear violation of the statute...

Justice O'Connor: Well, we've dealt with that.

Let's not get back into Beck.

Let's talk about the 30-day.

Now, as to the 30-day thing, who has jurisdiction to decide that?

Mr. LaJeunesse: Well, the courts and the board.

Justice Kennedy: You think both.

Mr. LaJeunesse: Both have jurisdiction.

Justice O'Connor: And the Ninth Circuit thought no, that it was primary jurisdiction of the board, I...

Mr. LaJeunesse: The Ninth Circuit thought no with regard to the question of, did the union mislead her as to when her obligations began, but it said yes as to what her obligations are, and I don't see any logical distinction between the two claims.

Either both should be before the board, or both should be before the courts under the duty of fair representation, and this Court has already held in Beck that claims concerning the what can be brought in court and are not subject to the board's exclusive jurisdiction.

There's no reason, as the Seventh Circuit said, to distinguish between claims of misrepresentation outside the contract and those inside the contract.

In fact, here, the court below determined the question of misrepresentation within the contract with regard to the what, but not the when, and there...

Justice Ginsburg: Why isn't the when just a question of incorrect interpretation of the legal requirement?

There's an argument that the law means 30 days, particular employer, 30 days in the industry.

That's an argument about what the legal requirement is.

Why does that also become a violation of the duty of fair representation?

Mr. LaJeunesse: Well, it was also in Beck an argument over what does section 8(a)(3) provide, and the court said that the employee was stating a claim for breach of duty of fair representation, and you have...

Justice Ginsburg: Well, the question is, what can you turn... what unfair labor practice can't you turn into violation of the duty of fair representation, and it's...

Mr. LaJeunesse: I don't think you can...

Justice Ginsburg: hard for me to see what the line is between them.

Mr. LaJeunesse: You can't turn most of them into breaches of the duty of fair representation, but you can in the context of the union security clause because of this affirmative duty the union has of informing employees truthfully and honestly of what their rights and obligations are.

Justice Scalia: Any... let me sort of restate Justice Ginsburg's question a little more narrowly.

Can you tell us any statutory obligations of the union with regard to employees as opposed to rights and obligations vis-a-vis the employer that cannot be recast as a breach of the duty of fair representation?

Mr. LaJeunesse: I don't follow your question, Justice Scalia.

Justice Scalia: Can you think of any of the statutory obligations of the union with respect to the members of the union that could not be cast as a claimed failure of the duty of fair representation?

Mr. LaJeunesse: Your Honor, I have to look at the specifics of a particular claim.

Justice Scalia: Well, just give me an example.

Mr. LaJeunesse: But I...

Justice Scalia: Give me an example of one that wouldn't be a duty of... breach of the duty of fair representation, obligation of the union towards its members, or towards employees of the employer under the statute, the union violates it, and yet it is not a breach of the duty of fair representation.

What... just give me one example, and I'll be happy.

Mr. LaJeunesse: The only duties that the union has toward the nonmembers are the duty... or, is the duty of fair representation.

That's why I don't know how you get outside that.

The union has an obligation to represent the...

Justice Scalia: Oh, it has an obligation to represent their causes fairly, given its other interests in grievances and so forth.

That would be a duty, the violation...

Mr. LaJeunesse: And if in performing those duties the union acts arbitrarily, discriminatorily, or in bad faith...

Justice Kennedy: Right.

Mr. LaJeunesse: then it has... there is a claim for a breach of duty of fair representation, and...

Justice Scalia: So you think, as I do, that any breach of the union's duty towards its members or towards other employees of the shop that it represents is a breach of the duty of fair representation.

Mr. LaJeunesse: And that's what this Court has held, and it's justiciable in court, and not preempted by the board's exclusive jurisdiction.

I see my time has expired.

Thank you, Your Honor.

Argument of Leo Geffner

Chief Justice Rehnquist: Thank you, Mr. LaJeunesse.

Mr. Geffner, we'll hear from you.

Mr. Geffner: Mr. Chief Justice, and may it please the Court:

I would like to pick up my argument in response to Justice Ginsburg's question having to do with the burden or the obligation of the duty of fair representation, which started out as we know in the racial discrimination that led into Vaca v. Sipes, involving individuals, and into the O'Neill case, where the Court addressed the question of what is a duty in the negotiations of a collective bargaining agreement, which is the issue in the Beck aspect of this case.

The factual determinations as to whether there was a violation of the duty of fair representation regarding notice to her, or information to her, has all been remanded to the district court.

The district court on summary judgment found that there was no violation based on the depositions in the discovery procedures, and had granted summary judgment.

Chief Justice Rehnquist: This is after the remand from the Ninth Circuit?

Mr. Geffner: No.

No, Your Honor.

Chief Justice Rehnquist: Before?

Mr. Geffner: Before, yes.

The Ninth Circuit felt there were some factual issues that should be resolved by the trial court, the district court, prior to looking at a summary judgment.

At least, there was a number of facts to justify a summary judgment.

The test in negotiating the contract in terms of the duty of fair representation is a very heavy one.

The O'Neill case very clearly stated, and the language is very strong, that not only does the union action have to be arbitrary, but in light of the factual and legal language at the time of the union's action, the union's behavior is so far outside the range of reasonableness so as to become irrational conduct.

Justice Scalia: That was the case in Beck?

Mr. Geffner: This is the O'Neill case, Your Honor.

Justice Scalia: No, no, but I mean, you think that that description is a fair description of what happened in Beck?

Mr. Geffner: Not at all, Your Honor.

Justice Kennedy: No.

Mr. Geffner: No, of course not.

Justice Scalia: That was held to be a breach of the duty of the union's duty of fair representation.

Mr. Geffner: That, Your Honor, I don't think the... the Beck case held, in my opinion that the duty of fair representation was violated in terms of outside of a statute.

8(a)(3) was used as a defense by the union, which was rejected by the court, and the court said that the duty was violated because it was a basic principle that it's a violation to collect dues from a employee under a union security clause that went for political ideological...

Justice Scalia: Even when the statute says... even when the statute says you can require people to be members of the union?

Mr. Geffner: Well, there was a vigorous defense in the Beck case, as Your Honor well knows, yes.

Justice Scalia: But I'm just saying...

Mr. Geffner: That case...

Justice Scalia: your description of what our case law says is necessary...

Mr. Geffner: Yes.

Justice Scalia: for a duty of... violation of a duty of unfair representation is simply not accurate, when you... when you take account of Beck, as you must.

Mr. Geffner: Well, Your Honor, Beck did not address itself to the negotiations or the language or the contract.

In fact, we would argue that the Beck case implied that the contract was valid, and that it was the implementation in terms of the collection of excessive amount of dues was where the violation occurred, and that has to do with the implementation of the clause, the security clause, not as to the language, not as to the negotiations.

That is where this burden that this describes comes into play, and we would argue that if you take this standard of irrationality, or beyond the range of reasonableness, then how can it be unreasonable, how can it be irrational for the union to negotiate a clause that is traces and tracks almost word for word the statute of 8(a)(3)?

Justice O'Connor: Well, it didn't track the statute on the 30-day provision, did it?

Mr. Geffner: That is a different question...

Justice O'Connor: Yes.

Mr. Geffner: Justice O'Connor.

I believe that is a different question.

That... unless you want me to address that part of the case, but I would...

Justice Breyer: It's that part of the case that I'm finding the most difficult part, because I don't know what the... you, in your brief, take an opposite position, and it seems like a very important question, about when and under what circumstances a simple statement of a worker that the union has violated its duty of fair representation gets that worker into court, where what is alleged is that the collective bargaining agreement has a term in it that violates section 8(a)(3).

Mr. Geffner: Yes.

Justice Breyer: It's not a claim... it's saying that there... and that's what they're arguing there, isn't it?

Mr. Geffner: Yes.

Chief Justice Rehnquist: All right.

Justice Scalia: Well...

Mr. Geffner: Right.

Justice Scalia: what's the standard...

Mr. Geffner: Well...

Justice Breyer: that seems to by and large say that the worker gets into court simply by saying, violates the duty of fair representation, but there's a sentence that I read that suggests that under some circumstances you can't get into court because to do so would destroy Garmon.

It would destroy the primary jurisdiction cases.

Now, what I'm lacking is the standard to distinguish the first from the second.

Mr. Geffner: Well, I...

Justice Breyer: And it seems important... maybe it isn't for some reason, and I'm not an expert in labor law.

Mr. Geffner: Well, I think it's very important, Your Honor, and the standard is a very difficult one, but the Beck case, as you may recall, a theory of the plaintiff in the Beck case was based on three reasons, one that there was a violation of 8(a)(3) and 8(b)(2) and therefore, per se, then there was a violation of the duty of fair representation.

And second was that there was a constitutional question, and third that there was a pure and simple duty of fair representation that had to do with how the union collected its dues and whether it collected excess amount of dues over objections of an employee for political purposes.

The Court very clearly... in fact, I think this was a unanimous opinion where the centrists also agreed with this part of the Beck case that the claim as to the constitutional issue was not to be decided, it was put aside, that clearly the Beck Court said that the issue of being an unfair labor practice, and that in itself, a violation of 8(a)(3), 8(b)(2), made it a violation of the duty of fair representation, was not the law and was not the basis for the Court to proceed to find that there was a violation.

Justice Breyer: In Beck, in that part of Beck...

Mr. Geffner: That part...

Justice Breyer: the lawyer had characterized the claim...

Mr. Geffner: Yes.

Justice Breyer: as a violation of 8(a)(3) and fair labor practice.

In this case, the lawyer has characterized the claim, though a similar kind of claim, as a violation of the duty of fair representation.

Mr. Geffner: Well...

Justice Breyer: It comes right into that heading in the complaint.

Mr. Geffner: Well, then I think, Your Honor, we get into the question, can the primary jurisdiction of the board be totally destroyed in this area, which it would do, because the argument then would be, any violation...

Justice Breyer: That's why I'm asking you for a standard that distinguishes the sheep from the goats.

Mr. Geffner: Well, I would contend, Your Honor, that you have to look back to Lockridge, which discussed this issue in very great detail, and Judge Harlan had a great discussion of how you find the standard.

It's a difficult one to find, but I think that the basis, as we would contend, would be that when it's a primary jurisdiction it has to do with a clear and... violation of the statute.

Here it's clear they're saying that it's a violation of 8(a)(3), 8(b)(2), because we didn't allow the base period of 30 days.

That is or is not a violation of 8(a)(3) and 8(b)(2).

It has nothing, really, to do with any representations, any misrepresentations, any hostility, any other factors, bad faith, that goes into... to make up the duty of fair representation.

All the standards of fair representation are not present.

This pure and simple was a violation of the 30 days permissible or not permissible.

It's as simple as that, and the NLRB, when that case comes before it as some future time will decide.

They'll say no, the union was wrong, they didn't apply the statute correctly, it's therefore an unfair labor practice and there's a remedy available to Ms. Marquez or any other employee that files the charge.

Justice Souter: Are you saying...

Mr. Geffner: Or they may say...

Justice Souter: Excuse me, Mr. Geffner.

Are you saying that the line should be drawn depending on whether the violation is clear or not?

Mr. Geffner: No.

I think if the violation is clear then obviously the labor board has the authority and the jurisdiction to, under primary jurisdiction to grant relief.

Justice Scalia: Okay, but it's not clear...

Mr. Geffner: Or even a clear violation...

Justice Souter: Are you saying that in cases in which it is not clear, that's when there is this different jurisdictional option, and they can come into court under unfair labor?

Mr. Geffner: Well, if it's not clear...

Justice Scalia: Unfair representation.

Mr. Geffner: If it's not clear, then I believe that it's standard that the courts would have to look, as to whether it was primary jurisdiction with the labor board, not only to the pleadings, which obviously can be clothed and colored any way the plaintiff wishes to color it, is that, is there interpretation... and assuming it's not clear.

Now, you take the 30-day clause here...

Justice Souter: No, but I don't... I want to hear you, but I want to stick to my question for a minute.

I take it your answer is, no, I am not saying that we decide whether something must be brought as an unfair labor practice before the board depending upon whether the statutory violation is clear or merely arguable.

That's not to the line that you're suggesting.

Mr. Geffner: No, I'm not.

Chief Justice Rehnquist: If you're not saying that, what are you saying?

Justice Souter: Yes, what is the line?

Mr. Geffner: Well, I'm saying that if there's a clear violation of the statute, 8(a)(3) or 8(b)(2), then the board has the primary authority to issue a complaint, to hold a hearing, and to find...

Justice Scalia: Well, but that sounds like you're simply retracting what you said a moment ago.

Chief Justice Rehnquist: I thought in answer to Justice Souter's question you said the distinction was not between whether the violation was clear or not clear.

Now you're saying that if it's clear it goes to the board.

Mr. Geffner: Well...

Justice Scalia: That doesn't make any sense.

Mr. Geffner: Well, maybe I misspoke.

I intended to answer the question that if it's clear or not clear, it does not deprive the board of labor of primary jurisdiction, because...

Chief Justice Rehnquist: So lack of clarity has nothing to do with it, is that right?

Mr. Geffner: Well, no.

I think lack of clarity is an important issue, because... and I want to use our case as an example, because 30 days... and the statute says 30 days.

It's not clear which 30 days we're talking about.

Now, this is an issue that should be decided under the labor act by the NLRB under the primary jurisdiction because they are the body with the expertise to look at the entire industry, the motion picture industry, the hiring practices, the issue of a multi-employer bargaining unit, where it's permissible under board cases that you can work for different employers and tack on grace periods, and that goes to the intent of the parties where they have a multi-employer bargaining unit.

These are all questions for the expertise of the administrative agency of the NLRB.

These are not really questions for the court to decide...

Justice Breyer: How do we know the difference?

Mr. Geffner: under a duty of fair representation standard.

Chief Justice Rehnquist: How can you... how do we tell the difference between the ones which are cases for the expertise of the board, and therefore must go first to the board, from ones that can be brought into court?

You haven't told us.

Mr. Geffner: Well, I'm not sure I can give a broad standard for every case.

Chief Justice Rehnquist: Well, could you give a narrow standard?

Unidentified Justice: [Laughter]

Mr. Geffner: Well, I'll try.

Justice Scalia: Make us an offer, Mr. Geffner.

Unidentified Justice: [Laughter]

Mr. Geffner: All right, Your Honor.

I... are we bargaining now, Your Honor?

[Laughter]

I think this case presents the perfect example of what we're talking about.

It's a narrow issue, and that is that the pleading seems to mix up duty of fair representation as a violation of 8(a)(3), 8(b)(2).

It's a question of how the complaint is worded.

When you cut through the substance of it, the substance of it is, there has to be a finding, and this should be done by the labor board first, and of course reviewed by the courts, is that when the parties negotiated this contract that said 30 days, did they violate 8(a)(3) and 8(b)(2)?

Now the NLRB has to look at a numerous number of factors.

They have to look at the industry, they have to look at employment practices, as I said earlier the multi-employer unit question... that is not a function of the board... of the courts to decide as an initial matter under the guise of a duty of fair representation claim.

This belongs to the expertise of the labor board.

Justice Scalia: But why shouldn't it be...

Mr. Geffner: That's why Congress set them up.

Justice Ginsburg: On the other question, too, why shouldn't the board say whether it belongs in the contract as opposed to...

Mr. Geffner: It usually finds that that case, Your Honor...

Justice Ginsburg: Suppose, for example, the board had said, we're doing away with our old learning.

We're adopting what Chairman Gould had suggested that we adopt as the new model clause, and then the union doesn't use the new model clause, it uses the one that it's been using from the beginning of the Taft-Hartley.

If that were the case, then wouldn't there be a violation of the duty of fair representation?

Mr. Geffner: Well, there certainly would be a violation of... it would be an unfair labor practice case.

Justice Ginsburg: Yes, but the question could all... as I understood Mr. LaJeunesse, there's no question that the board has jurisdiction.

He's not arguing for exclusive court jurisdiction.

He's saying that they both would have jurisdiction.

You're saying that at least with respect to the 30 days only the board has jurisdiction.

Mr. Geffner: Well, primary jurisdiction, Your Honor, yes.

Justice Kennedy: Yes.

Justice Ginsburg: Yes.

With review...

Mr. Geffner: Yes, correct.

Justice Ginsburg: in the court of appeals, not in a district court.

Mr. Geffner: Correct.

Justice Ginsburg: But I... the question is, are they all both, as Justice Scalia suggested, whenever employees are affected, then it's a choice to go directly to court, or go to the NLRB?

Mr. Geffner: Well, of course, in the context of the factual situation of Beck, which was really decided essentially that there's a separate duty of fair representation not to collect excess dues, that could have been an unfair labor practice and the board would have jurisdiction.

The Beck case said that under that theory, that there was jurisdiction on a violation of the duty of fair representation.

I don't think we can quarrel with that finding of Beck.

It did say that.

But that had to do with what... with the enforcement, with collection and how dues were collected, and what manner in terms of excess amount of dues.

That's where the duty arose in terms of the court jurisdiction on a DFR, duty of fair representation complaint.

The board...

Justice Souter: Mr. Geffner...

Mr. Geffner: The board could have concurrent jurisdiction as well.

Justice Souter: could a line be drawn this way, that by recognizing that the decision in Beck, the construction of the statute that the Court announced in Beck was at least driven by a concern over First Amendment issues.

And, therefore, could we say that if, in fact, the argument that is brought is an argument which depends... which would... if it's a statutory interpretation argument, that would depend on, or turn on a concern over constitutional issues, perhaps avoiding constitutional issues, that that would be an appropriate case to bring in the first instance in a court under fair representation because that's not the labor board's principle subject of expertness, whereas if the interpretive issue does not have constitutional implications, you ought to start with the board under unfair labor practice?

Mr. Geffner: Well...

Justice Souter: Is that a way we could draw the line?

Mr. Geffner: I think that would be a very good way, a rational way to draw the line.

I think applying Beck that's exactly what would happen in Beck.

Chief Justice Rehnquist: But then I think you'd have Mr. LaJeunesse back in court in this case saying that there are perhaps constitutional implications here.

Now, perhaps they wouldn't be very strong ones, but I think that would underestimate the ability of lawyers to cast their claims...

Unidentified Justice: [Laughter]

Chief Justice Rehnquist: in constitutional terms.

Mr. Geffner: I'm not sure of that, Your Honor, but the problem in terms of avoiding constitutional issues, which of course Beck said it was not involved in the Beck case, but I think I agree with Justice Souter that in referring back to the Street case and the Railway Labor Act, which Beck was based on, that there were at least in the background somewhere some constitutional issues about collecting money from people over their objections for political activities.

But beyond that, it seems to me that the constitutional questions really are not faced in this area, because any doubt... any doubt, even if you want to raise it to the dignity of a constitutional question, is resolved by the point that was made, I believe, by Justice Ginsburg, and that is, the union is required, and there's a very clear body of law that has developed in the last few years by the NLRB and also by the courts in California Saw & Knife and the Paramax case, that there's an affirmative obligation for the union to notify every person that's subject to the union security clause of their Beck rights.

In fact, they go even further.

They have to advise them of numerous rights that flow from the Beck decision.

That is an obligation that goes beyond anything that a contract might do, as I believe one of the Justices pointed out, because that obligation that the board, the labor board is now imposing has to be shown that the individual received that notice.

Whether through a newspaper, or whether through a mailer, or whether through an application form, whatever vehicle is used, that notice has to be given, and that's where any constitutional question of somebody being deprived of their property against their objections for political reasons is clearly avoided and clearly remedied.

Justice Stevens: Well, counsel, the judge of Scanlon didn't rely on the Constitution, though.

He seemed to draw a distinction between a claim where the main claim does not depend on a violation of 8(a)(2) or 8(a)(3) and a claim that it only collaterally would involve...

Mr. Geffner: And as I say, clearly, yes, I agree with Scanlon...

Justice Stevens: I was going to ask you if you walk away from them or you endorse the...

Mr. Geffner: I agree 100 percent with the Ninth Circuit.

i was responding, I believe to Justice Souter's question, or to Justice Scalia's question that perhaps in the background when the Court decided the Beck case there was some concern of a constitutional question, but it didn't involve political activities and collecting dues for political activities.

And the Beck case clearly tagged on to the Street case, which is a Railway Labor Act case, which did involve a constitutional issue because of the statute being drafted and written separately and differently from the Taft-Hartley Act, which the Beck case didn't... it did not involve the constitutional issue.

But I simply agree with Justice Scalia that somehow you could look up in the sky and pick that issue out of there.

But clearly the holding of the Beck case was not on constitutional questions.

The Court was very clear that that basis for relief, that was urged by the petitioners in that case, was not the grounds for the Beck decision.

Justice Breyer: So how do you think about it as a labor lawyer?

I mean, I take it this is the only case in which this issue has arisen.

I couldn't find any other.

There's one case this one way, and dictum by Judge Posner the other, so we haven't had a problem of labor lawyers representing workers running in and recharacterizing NLRA claims as unfair discrimination claims.

That hasn't happened, so there must be some line in a practicing lawyer's mind, otherwise we perhaps face dozens of these recharacterizations.

Mr. Geffner: Well...

Justice Breyer: What is it in your mind?

What is it that leads you... I'm just still driving for the standard.

Mr. Geffner: Well...

Justice Breyer: You must have one there subconsciously.

Mr. Geffner: Well, I... I'm not so sure I'm so wise as to have one, but my thinking would be, Your Honor, that the standard that would be applied, that may be a difficult one, is that... would be one, is the claim of the duty of fair representation really something that's separate from a pure statutory violation, that there's some... because the duty of fair representation was really a judicially declared requirement coming out of the early cases on racial discrimination through Vaca v. Sipes.

Of course, the labor board isn't dealing with these kinds of issues.

Courts must deal with them, because the... a union is the exclusive representative, and there should be some protection for an individual against the majority on some kind of abusive or bad faith action, so it is a judicially imposed requirements on the union, not a statutory one as such.

I think that is probably part of the one standard that I would suggest.

The other I would suggest is the one I said earlier, and that is, is it the kind of an issue... getting beyond the pleadings, is it the kind of issue that really is, it requires the expertise of the administrative agency?

Is this the kind of an issue that really the court shouldn't be dealing with, certainly not on the first impression?

Maybe on a petition to review, or to enforce, but as a first impression... and that's why I emphasize the 30-day case as a perfect example, because we don't know.

The board hasn't really ruled on this 30-day clause, and there's so many factors.

It involves industrial relations.

It involves the motion picture industry.

It involves how you employ, how you involve freelance employment.

Justice Souter: What if the board had ruled on this clause, Mr. Geffner?

Chief Justice Rehnquist: Then could an employer in Mrs. Marquez' situation bring an action in court?

Mr. Geffner: An employer, Your Honor?

Justice Souter: An employee.

Justice Scalia: I'm sorry, an employee, yes.

Mr. Geffner: I'm sorry.

No, I think that case there would be a clear violation of 8(a)(3) and 8(b)(2).

Her remedy would be to run down to the labor board and file a charge.

Chief Justice Rehnquist: So if the board's ruled on it you have to go to the labor board, and if the board hasn't ruled on it you have to go to the labor board?

Mr. Geffner: Well, I can't categorically say that would be the case, because there could be situations that it could be both, as...

Chief Justice Rehnquist: What would be those situations?

Mr. Geffner: Well, I think the Beck case is an example where the...

Chief Justice Rehnquist: What besides Beck?

Mr. Geffner: What besides the Beck?

Chief Justice Rehnquist: Yes.

Mr. Geffner: Well, I... on a duty of fair representation there could be some abusive action against the... by a union against an employee that the board had jurisdiction, where it's a violation of the employee's section 7 rights.

It would be unfair labor practice, but it also might be a tortious action against the individual, or it could be some kind of group action where there's a violation of either the common law, or of the broad, broader definition of the duty of fair representation.

That's... it could be a situation of that kind, you know.

The O'Neill case set the standard of the duty of fair representation.

In that case, the specifics involved the negotiations of a contract and the settlement agreement.

The Court found that the union didn't violate that standard, but it could have gone the other way, and there you would have had a case where there had been a violation of the duty of fair representation, and very likely would be an unfair labor practice, possibly, under a violation of section VII, or possibly even a failure to bargain.

There could be numerous areas of the Taft-Hartley Act that could be urged as an unfair labor practice.

So there are situations where there's a crossover, and where you draw the line, I think all we can do is what Beck said, and what Lockridge said, where Judge Harlan discussed this, and I suggest...

Justice Scalia: What do you say...

Mr. Geffner: And I suggest the two standards that...

Justice Breyer: What would you say...

Mr. Geffner: that we would follow.

Justice Breyer: What is the remedy, just... if by coincidence, I read... I was reading the record.

It sounds as if what Ms. Marquez was actually upset about, at least originally, was, she said to the union, take the $500 out of my first paycheck, please.

I don't have the money on me.

I just don't have it, and the union, instead of saying, okay, said no.

Now, that seems, given her side of it, that that wasn't very reasonable, and suppose that she's right about that, what kind of remedy would the law permit?

Mr. Geffner: Well, it... she could have filed a charge with the labor board as a violation of 8(a)(3) and 8(b)(2).

The board would then have the jurisdiction to give the remedy to her, which would have been back pay for losing the 1 day's work.

That would probably be a fairly complete remedy.

I suppose you could argue that because she was badly treated as an individual, it was bad faith in her treatment outside of the statute, that the union then created a hostile and arbitrary action.

There might be a DF, duty of fair representation.

But those are the issues that relate really to the kind of issues that notice goes to, and information goes to, and that's what we're dealing with here, and that is where the labor board has set up an elaborate system of notice requirements which takes care of any problems that might be coming out of any misunderstanding of the contract language, which she... we're back to the main issue of the case, or at least the Beck issue in the case.

Justice Kennedy: The board can award damages against the union measured by back... by lost pay?

Mr. Geffner: It can award lost pay, yes, mm-hmm.

Justice Kennedy: Against the union?

Mr. Geffner: Against the union, yes, mm-hmm.

That would be the remedy if the union violated 8(a)(3) and 8(b)(2).

That would be... the traditional remedy is the back pay remedy, yes.

Chief Justice Rehnquist: Mm-hmm.

Justice Ginsburg: Mr. Geffner...

Mr. Geffner: Yes.

Justice Ginsburg: at some stage the SG told us that this matter was before the board, this matter being whether the Beck language must be in the contract clause and not simply in a notice that the union separately gives to workers.

Is it before the board?

Mr. Geffner: No, Your Honor.

That's not my understanding of the law.

The board at this point, you may recall, in 1958 in the Keystone Cloth case said that membership in good standing is the model clause.

Justice Ginsburg: Yes, but we've been told that that was...

Mr. Geffner: It's moved ahead, yes.

Justice Scalia: rejected by the board.

Mr. Geffner: After the Beck case and the Paramax case the board said that the clause is now ambiguous, but not facially invalid.

Now they say it's ambiguous, but before they said it was not ambiguous, and they said the ambiguity is cleared up and remedied by these outside notices that have to be given to the individuals, so that clarifies the ambiguity.

Now, the D.C. circuit reversed the board and said no, that... the clause is not ambiguous, the clause is facially valid, and reversed the board on that issue, and now the board is wrestling with the consequences of that for that decision, and there's some dissention in the board itself, actually, on that issue right now, but cases on record... cases on record, the Paramax case says very clearly that's ambiguous, that's their position, but not facially invalid.

And that's been, as I said, has been reversed by the D.C. Circuit in saying that it was facially valid, and all the notices were adequate to protect the individual against any misunderstanding.

In the few moments, I'd like to just stress one point here in terms of the drastic remedy that the petitioners are asking in this case, to declare a collective bargaining agreement clause invalid, and the petitioner and I believe the Eighth Circuit if you follow their argument seem to think that the union has the right to unilaterally just modify a collective bargaining agreement and just simply change it to make it clearer, just by some... just miracle, some wave of the hand.

It's not the reality of labor relations.

If the clauses are declared invalid then the union has to renegotiate with the employer.

Clauses that have been in effect now for 50 years contained in thousands of contracts in this country, the union would have to go back to each employer and renegotiate the contract, and that raises all kinds of questions.

That means that if the employer doesn't agree, can the union now strike to obtain a modified clause?

Can the employer lock out the union?

Justice Scalia: Why wouldn't the employer agree?

Mr. Geffner: I beg your pardon, Your Honor?

Justice Scalia: Why would not the employer agree to making the clause less favorable to the union?

Mr. Geffner: Well, Your Honor, the reality of collective...

Justice Scalia: I mean, I can see the union not agreeing to it, but why would the employer not...

Mr. Geffner: Because, Your Honor, the nature of collective bargaining is that everything in a contract is the subject of a bargain, subject to negotiations.

I don't find many employers, nor do I find many unions who agree to something without getting something in return for it, and that's the reality of collective bargaining.

Justice Scalia: It wouldn't take much to find an absence of good faith bargaining if an employer does not let...

Mr. Geffner: No, Your Honor...

Justice Scalia: the union modify that clause in a way that favors the employer.

Mr. Geffner: Your Honor, the law is clear that the employer can refuse a union security clause to impasse.

That's a mandatory subject of bargaining.

The union... the employer does not have to agree to any union security clause.

Justice Scalia: Bargain in good faith, and it wouldn't take me very long to find that that's pretty bad faith bargaining, if the union wants to give him a better deal than he now has and he doesn't want it.

Mr. Geffner: I... it would be a very serious question, Your Honor, that in terms of the consequences, when you're trying to renegotiate the contracts... maybe some employers would take that position.

Maybe some would not.

We don't know, and that goes back to what happens.

Those are the consequences of declaring a clause invalid, and that goes back to the original intent of Senator Taft and the Senate and the Congress in enacting the Taft-Hartley Act and authorizing the union security clause.

They said they wanted to foreclose and close out the closed shop.

They allowed the union shop, under limited circumstances, and it's spelled out in the statute.

Chief Justice Rehnquist: Thank you, Mr. Geffner.

Mr. Geffner: Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.