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OCT. TERM 1998


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AT OCTOBER TERM, 1998 Beginning of Term October 5, 1998, Through March 1, 1999 Together With Opinion of Individual Justice in Chambers


reporter of decisions WASHINGTON : 2000 Printed on Uncoated Permanent Printing Paper For sale by the U. S. Government Printing Office Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328 Unit: $UII [10-31-00 11:27:50] PGT: FRTBX 525BV$ Errata 522 U. S. 817, No. 96–1944: “108 F. 3d 345” should be “101 F. 3d 707”.

522 U. S. 1087, No. D–1908: “Trammel” should be “Trammell”.

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of the


during the time of these reports WILLIAM H. REHNQUIST, Chief Justice.

JOHN PAUL STEVENS, Associate Justice.

SANDRA DAY O’CONNOR, Associate Justice.

ANTONIN SCALIA, Associate Justice.

ANTHONY M. KENNEDY, Associate Justice.

DAVID H. SOUTER, Associate Justice.

CLARENCE THOMAS, Associate Justice.

RUTH BADER GINSBURG, Associate Justice.

STEPHEN BREYER, Associate Justice.

retired LEWIS F. POWELL, Jr., Associate Justice.* BYRON R. WHITE, Associate Justice.

HARRY A. BLACKMUN, Associate Justice.

officers of the court JANET RENO, Attorney General.

SETH P. WAXMAN, Solicitor General.


FRANK D. WAGNER, Reporter of Decisions.

DALE E. BOSLEY, Marshal.


*Justice Powell, who retired effective June 26, 1987 (483 U. S. vii), died on August 25, 1998. See post, p. v.

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Allotment of Justices It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the circuits, pursuant to Title 28, United States Code, Section 42, and that such

allotment be entered of record, effective September 30, 1994, viz.:

For the District of Columbia Circuit, William H. Rehnquist, Chief Justice.

For the First Circuit, David H. Souter, Associate Justice.

For the Second Circuit, Ruth Bader Ginsburg, Associate Justice.

For the Third Circuit, David H. Souter, Associate Justice.

For the Fourth Circuit, William H. Rehnquist, Chief Justice.

For the Fifth Circuit, Antonin Scalia, Associate Justice.

For the Sixth Circuit, John Paul Stevens, Associate Justice.

For the Seventh Circuit, John Paul Stevens, Associate Justice.

For the Eighth Circuit, Clarence Thomas, Associate Justice.

For the Ninth Circuit, Sandra Day O’Connor, Associate Justice.

For the Tenth Circuit, Stephen Breyer, Associate Justice.

For the Eleventh Circuit, Anthony M. Kennedy, Associate Justice.

For the Federal Circuit, William H. Rehnquist, Chief Justice.

September 30, 1994.

(For next previous allotment, and modifications, see 502 U. S., p. vi, 509 U. S., p. v, and 512 U. S., p. v.) Present: Chief Justice Rehnquist, Justice Stevens, Justice O’Connor, Justice Scalia, Justice Kennedy, Justice Souter, Justice Thomas, Justice Ginsburg, and Justice Breyer.

The Chief Justice said:

As we open this morning, I want to pay tribute to our friend and colleague, Lewis F. Powell, a retired Justice of this Court, who died on August 25, 1998, at his home in Richmond, Virginia.

Lewis Powell took the Oath of Office on January 7, 1972, becoming the 99th Justice to serve on this Court. He retired on June 26, 1987. Following his retirement, he sat on the Court of Appeals for the Fourth Circuit, and taught at both Washington and Lee and the University of Virginia.

Justice Powell was born on September 19, 1907, in Suffolk, Virginia. He graduated first in his class at Washington and Lee College in 1929, then completed his law degree in two years and went on to receive his LL.M. from Harvard Law School in 1932. In that year, he began practicing law in his native city of Richmond. In 1941, at the time of the Japanese attack on Pearl Harbor, he was 34 years old. Though his age and family responsibilities would have excluded him from the draft, he volunteered and was commissioned a First Lieutenant in the Air Force, rising in rank to Colonel, and winning the Legion of Merit and Bronze Star medals. He served overseas with distinction as an Intelligence Officer v Unit: $$UV [09-29-00 21:16:17] PGT: FRT 525BV$


in the Air Force for four years during World War II and its aftermath.

After serving the country during the war, he returned to Richmond and the law firm of Hunton and Williams.

Throughout his career in Virginia, he gave generously of his time and energy to the Richmond community and to the Commonwealth. He served as the President of the Virginia State Board of Education as well as Chairman of the Richmond Public School Board. He was elected to serve as the President of the American Bar Association and was appointed by President Johnson as a member of the National Commission on Law Enforcement and Administration of Justice.

At the age of 64, already occupying a secure place among the legal leaders of the United States, his country called again and he accepted an appointment to this Court as his patriotic duty. We who served with him during his fifteen years on this Court cherished his intellect, gentlemanly charm, and consummate judicial temperament. We continue to miss him. At an appropriate time in the spring, the traditional memorial observance of the Court and the Bar of the Court will be held in this Courtroom.

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Note: All undesignated references herein to the United States Code are to the 1994 edition.

Cases reported before page 801 are those decided with opinions of the Court or decisions per curiam. Cases reported on page 801 et seq. are those in which orders were entered. The opinion reported on page 1301 is that written in chambers by an individual Justice.

on joint motion for entry of supplemental decree No. 9, Orig. Decided May 31, 1960, December 4, 1967, and March 3, 1969—Final Decree Entered December 12, 1960—Supplemental Decree Entered May 5, 1969—Supplemental Decree Entered October 13, 1998 Supplemental decree entered.

Opinions reported: 363 U. S. 1, 389 U. S. 155, and 394 U. S. 1; final decree reported: 364 U. S. 502; supplemental decree reported: 394 U. S. 836.

The joint motion for entry of a supplemental decree is granted.


On December 12, 1960, this Court entered a final decree addressing the entitlement of the United States and the States of Alabama, Florida, Louisiana, Mississippi, and Texas to lands, minerals, and other natural resources underlying the Gulf of Mexico. United States v. Louisiana, 364 U. S.

502. On May 5, 1969, this Court entered a supplemental decree describing the 1845 coastline of the State of Texas and the offshore boundary between the United States and Texas.

United States v. Louisiana, 394 U. S. 836. For the purpose of identifying with greater particularity the boundary line 1 Unit: $$U1 [10-23-00 10:15:02] PAGES PGT: OPLG 525US1

4. Plane coordinates refer to the Texas Coordinate Systems, South Zone or South Central Zone, as indicated. All coordinates are referenced to the North American Datum of 1927.

5. The Court retains jurisdiction to entertain such further proceedings, to enter such orders, and to issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree, or to effectuate the rights of the parties.

[United States-Texas Boundary map follows this page.] Unit: $$U2 [10-23-00 11:13:05] PAGES PGT: OPIN 525US1 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 Unit: $$U2 [10-23-00 11:13:05] PAGES PGT: OPIN 525US1 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).


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 Unit: $$U2 [10-23-00 11:13:05] PAGES PGT: OPIN 525US1 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.

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