Cite as: 525 U. S. 33 (1998)
Kennedy, J., concurring
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, full-fledged 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
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