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Will Marquez v. SAG Shake Industry? U.S. Supreme Court to Consider Contract "Security Provisions"

When the U.S. Supreme Court starts a new term on the first Monday in October, it will hear oral arguments for Marquez v. Screen Actors Guild, Inc., a case that could nationally impact collective bargaining agreements.

On its surface, the Marquez case appears to only involve an actress suing a union over dues requirements. But in fact, Seattle-based actress Naomi Marquez is challenging "union security provisions," i.e., clauses in collective bargaining agreements which require employers to hire only dues-paying union members.

Marquez has lost in both federal district and appellate courts. But, should the nine Supreme Court justices rule in her favor--and it's possible they could--their decision could shove a stake in the bargaining heart of, not just SAG, but every American union.

While SAG has understandably remained mute on the case, conservatives like the Washington, D.C., think tank Heritage Foundation have been vocal and blunt. Edwin Feulner, the foundation's president, said in a July column that a ruling against SAG could greatly deter "big labor's ability to coerce workers into its ranks."

The Marquez Experience

In the summer of 1994, Marquez--a non-union actress--auditioned for and won a bit part in Lakeside Productions' (Seattle) TV series entitled "Medicine Ball." Lakeside's collective bargaining agreement with SAG provided that any actor who previously had worked over 30 days "in the motion picture industry" was obligated to "be a member of the Union in good standing," and must pay periodic dues and initiation fees.

According to the judges' opinion filed in the Ninth Circuit of the U.S. Court of Appeals, Marquez "understood that she was required to pay SAG before she would be eligible to work." She called the Seattle SAG office, and was informed the fee was $500.

The producers would pay Marquez $550, but it would come 30 days after the performance. Her agent, Ingrid Furiman, contacted SAG, asking if Marquez could pay after receiving her performance check. According to the appellate opinion, "An unidentified SAG employee in the membership department" refused the suggestion. Furiman also spoke to SAG's legal counsel, Vicki Shapiro, who verified that Marquez couldn't wait 30 days to pay, the opinion said.

Marquez then contacted the National Right to Work Legal Defense Foundation. Its representative, Hugh Reilly, drafted a letter explaining that, under federal law, SAG could not require Marquez to join the union as a condition of employment; the union could only require her to pay a pro-rated share for services provided to all workers; and Marquez was entitled to a 30-day grace fee-payment period.

Reilly faxed the letter to SAG on Sept. 12, 1994, the day before Marquez was to perform, as well as the deadline day for paying SAG her dues. Since she hadn't met the deadline, Lakeside hired another actress for Marquez's role, and filmed the scene the following day.

Her Days In Court

Marquez filed suit against SAG and Lakeside in December 1994 in federal district court in Seattle. She alleged that SAG had breached a duty of fair representation by not granting the 30-day grace period, by requiring union membership as an employment condition, and by requiring full dues payment rather than informing Marquez she could pay only a portion of dues and fees. Marquez also charged that Lakeside was a necessary party to the suit because she was seeking to reform the contract between the two parties.

The district court ruled in favor of the defendants on all counts, including holding that the 30-day grace period was within the exclusive jurisdiction of the National Labor Relations Board rather than the court.

The federal appeals court agreed with the lower court. Citing a convoluted legal loophole, the three-judge appeals panel also paid special attention to a 1988 Supreme Court case, "Communications Workers v. Beck," noting that under the high court's ruling, unions were no longer permitted to require full membership as a condition of employment and could not enforce a security clause's literal terms. But the appeals court went on to negate that precedent-setting case, saying that "Beck" did not question security clauses' "facial validity." As a result, the panel said that SAG could not have negotiated its contract in bad faith and therefore had not violated its duty of fair representation.

Defense Foundation Comments

Raymond J. LaJeunesse, Jr., an attorney with the National Right to Work Legal Defense Foundation in Springfield, Va., represents Marquez. He believes a ruling in his client's favor "would affect the screen entertainment industry generally, but also all private-sector contracts under the NLRA," or National Labor Relations Act.

The NLRA makes very clear that "you get a 30-day grace period before you have to pay dues with each employment," LaJeunesse stressed. He said the lower courts' ruling, which allowed SAG to require immediate dues payments while also recognizing the NLRA's grace period, was "schizophrenic." He added that, in the "Beck" case, the Supreme Court "clearly interprets that the most that can be required is payment of a portion of dues."

As to the lower courts' ruling that a 30-day grace period should be the exclusive jurisdiction of the National Labor Relations Board, LaJeunesse explained, "Our argument is that a provision in the contract that overstates an employee's obligation is a breach of duty of fair representation over which the courts do have jurisdiction."

Heritage Foundation President Feulner, in his column, rides the same horse as LaJeunesse. "What happened to Naomi Marquez was illegal," he states, emphasizing that the wording in "Beck" clearly states, in Feulner's words, "workers cannot be forced to join unions as a condition of employment."

The full weight of Marquez's arguments probably won't be known until the end of this year. While Chief Justice William Renquist and associates will hear the oral arguments in early October, a decision may not come down for anywhere from one to six months.

But lawyers know one thing about the high court: consistent lower-court opinions don't automatically receive a stamp from the Supreme Court. It hears arguments, reviews precedents, and makes up its own mind. So, for Marquez v. SAG, the jury, so to speak, is still out.

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