Amicus Curiae Brief — Breininger v. Sheet Metal Workers

<3

In the Supreme Court of the 2

OcTOBER TERM, 1988

LYNN L. BREININGER, PETITIONE

Vv

SHEET METAL Workeks INTERNATIONAL ASSOCIAPION==- |

LOcaL UNION No. 6

ON PETITION FOR A WRIT OF CERTIC RARI

TO THE UNITED STATES COURT OF AF’PEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

WILLIAM C. BRYSON

Acting Solicitor General

DAVID L. SHAPIRO

Deputy Solicitor General

STEPHEN L. NIGHTINGALE

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

ROSEMARY M. COLLYER

General Counsel

ROBERT E. ALLEN

Associate General Counsel

NORTON J, COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

National Labor Relations Board

Washington, D.C. 20570

JERRY G. THORN

Acting Solicitor

ALLEN H. FELDMAN r

Associate Solicitor

STEVEN J. MANDEL

Counsel for Appellate Litigation

ANNE P. FUGETT |

Altorney A

Department of Labor ,

Washington, D.C. 20210 ‘a

QUESTIONS PRESENTED

1. Whether the National Labor Relations Act pre-

empts federal court jurisdiction over a union member’s

claims that his union breached its duty of fair representa-

tion and violated the Labor Management Reporting and

Disclosure Act by discriminating against him in job re-

ferrals.

2. Whether a union’s refusal to refer a member to

jobs, as a result of his political opposition to the union’s

leadership, gives rise to a cause of action under Sections

101(a)(S), 102, and 609 of the Labor Management Report-

ing and Disclosure Act, 29 U.S.C. 411(a)(5), 412, and 529.

(1)

= -_ —— ——-—- -— ' | Ss

TABLE OF CONTENTS

Page

Statement CTS. Delkin aus Wh Ge teehee secunsessess l

eee Le SL Eh Liddle cwGecedcteveveduees 4

Ea al i BEG PO RAE GE Ay Oe a 20

q TABLE OF AUTHORITIES

Cases:

Amalgamated Ass’n of Street, Elec. Ry. & Motor Coach

Employees v. Lockridge, 403 U.S. 274 (1971) ....... 4, 6-7, 9

Bagsby v. Lewis Brothers, Inc., 820 F.2d 799 (6th Cir.

ei Misi Aas adidas bag etdc vceccece 8

Beriault v. Local 40, Super Cargoes & Checkers, 501 F.2d

EE ES 7, 8,9

Bricklayers’ Local 8, 235 N.L.R.B. 1001 (1978) ......... 10

Carpenters Local 608 (Various Employers), 279 N.L.R.B.

747 (1986), enforced, 811 F.2d 149 (2d Cir. 1987), cert.

denied, No. 86-1760, (Oct. 5, 1987) ................. 10

Carpenters Local 1016 (Bertram Constr.), 272 N.L.R.B.

ee Soe cia welclweeccctccceces 10

Carter, In re, 618 F.2d 1093 (Sth Cir. 1980) ............. 7

Cell-Crete Corp., 288 N.L.R.B. No. 32 (Mar. 29, 1988) .. 9

Chauffeurs’ Union Local 923 (Yellow Cab), 172 N.L.R.B.

ko. cc cauneiabevebet i ceevecsécs 10

Clayton v. Automobile Workers, 451 U.S. 679 (1981) .... 8

Communications Workers v. Beck, No. 86-637 (June 29,

CWC tie es SoCs goneacce kas see deweess 6, 7, 8, 9

Farmer v. United Brotherhood of Carpenters, 430 U.S.

EEE LE ES ee eee 4,5

Finnegan v. Leu, 456 U.S. 431 (1982) ................ 3, 4, 12,

13, 14, 16, 17, 18

Hackenburg vy. International Brotherhood of Boiler-

makers, 694 F.2d 1237 (10th Cir. 1982) .............. 18

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554

yO RRC GIES TR FCS Se 8, 11.

Hoisting & Portable Engineers, Local 4 (Carlson Corp.),

189 N.L.R.B. 366 (1971), enforced, 456 F.2d 242 (ist

Oy a ne re 10

International Brotherhood of Boilermakers v. Hardeman,

: ee cs wwendeeene 11

(111)

IV

Cases — Continued: Page

Iron Workers v. Perko. 373 U.S. 701 (1963) ............ 4

Journeymen Pipe Fitters Local 392 v. NLRB, 712 F.2d

Be ED Fi bb 00h 0005 scke Visors dccsceness 7

Keene v. International Union of Operating Engineers,

Local 624, 569 F.2d 1375 (Sth Cir. 1978) ............. 11, 17

Laborers Health & Welfare Trust Fund v. Advanced

Lightweight Concrete Co., 779 F.2d 497 (9th Cir. 1985),

aff'd, No. 85-2079 (Feb. 23, 1988) ...........-0000: 7

Lewis v. Local Union No. 100 of the Laborers’ Inter-

national Union, 750 F.2d 1368 (7th Cir. 1984) ........ 7,8,9

Local 100, United Ass’n of Journeymen v. Borden, 373

cE RE a Rie por Seer 4, 5,8

Miller v. Holden, 535 F.2d 912 (Sth Cir. 1976) .......... 15

Moore v. Electrical Workers Local 569, 653 F. Supp. 767

Sk =f BRN Rep ON /. Pee Ppa 18

Murphy v. International Union of Operating Engineers,

Local 18, 774 F.2d 114 (6th Cir. 1985), cert. denied,

GI es ET IEEE Sb Sabo kha eee eRRi cee cnantees ae 17

Operating Engineers, Local 406 (Ford, Bacon & Davis),

262 N.L.R.B. 501982), enforced, 701 F.2d 504 (Sth

ie Phd s-ccon tes cacre SF eMaehe eons htdacahesss 9, 10

Pipefitters Local 392 (Kaiser Engineers), 252 N.L.R.B.

GE kwh ok stam aa nib awed bdehoneshe<0ce0ess

Quinn v. DiGiulian, 739 F.2d 637 (D.C. Cir. 1984) ...... 11

Radio Officers’ Union v. NLRB, 347 U.S. 17 (1954) ..... 5

San Diego Building Trades Council v. Garmon, 359 U.S.

SEE Ouest as vb whan tan ecane ners é¥eesdn<s 3,4

Schmid v. United Brotherhood of Carpenters, 773 F.2d

es cic ce enescduntsseenenes 11

Sheet Metal Workers’ International Ass'n v. Lynn, No.

FE ck Bi eS 68k 6b vc b Ud ccdaces' 16

Smith v. Local No. 25, Sheet Metal Workers Int'l Ass'n,

Se cde Pe IE kd wuinince wedeeses Gb neee 7, 8,9

Steele v. Louisville & N.R.R., 323 U.S. 192 (1944) ....... 8

Storey v. Local 327, International Brotherhood of Team-

sters, 759 F.2d 517 (6th Cir. 1985) .............0.... 7,8

Turner v. Local Lodge No. 455 of the International

Brotherhood of Boilermakers, 755 F.2d 866 (11th Cir.

SE cuctadnt<ws vadedenctadeecwonuateibensetin wea 18

Cases — Continued: Page

a Ee 5,6

Vandeventer v. Local Union No. 513 of the International

Union of Operating Engineers, 579 F.2d 1373 (8th Cir.),

cert. denied, 439 U.S. 984 (1978) ................... 11

Statutes:

Labor Management Reporting and Disclosure Act, 29

U.S.C. 401 ef seq.:

I os a ct eccecccececn 12

§ 101(a)(2), 29 U.S.C. 411(ay(2) ....... ‘pA Sawada 13, 19

§ 101(a)(S), 29 U.S.C. 411(a)(S5) ............0.... 2-3, 11,

13, 14, 15, 18

PE ody in o.064 a sdc ce nvecswaeee 12, 13,

16, 17, 18, 19

es hs on wh on cee seen ebuenel 2-3,

13, 14, 15, 18

SINE og sins ovccccncccoeseces 13

National Labor Relations Act, 29 U.S.C. i51 ef seq.:

sk cece bécn 10

§ 8(b)(1)(A), 29 U.S.C. 158(b) IA)... 2.000... 3, 5, 10

§ 8(b)(2), 29 U.S.C. 158(b)(2) ..... 22... sna ataeiun 3

Eg Sie SR bo 9

IR eRe et ocnicd & udu web eee sc¥aae Uae 9

Miscellaneous:

Beaird & Player, Union Discipline of its Membership

Under Section 101(a)(5) of Landrum-Griffin: What is

“Discipline” and How Much Process is Due?, 9 Ga. L.

RT RG RE a Catia be hee 15

Comment, Applicability of LMRDA Section 101(a)(5)

to Union Interference with Employment Opportunities,

Be rts ea te Po ccckcswuwcews beens 15

Etelson & Smith, Union Discipline Under the Landrum-

Griffin Act, 82 Harv. L. Rev. 727 (1969) ............. 1S

In the Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-124

LYNN L. BREININGER, PETITIONER

V.

SHEET METAL WORKERS INTERNATIONAL ASSOCIATION

LOCAL UNION No. 6

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT bs

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s invita-

tion to the Solicitor General to express the views of the

United States.

STATEMENT

1. Respondent Sheet Metal Workers Local Union No.

6 (the Union) represents sheet metal workers in a multi-

employer bargaining unit in the Toledo, Ohio, area. In a

collective bargaining agreement, the Union has agreed to

refer sheet metal workers to employers in response to their

requests.' The Union attempts to honor an employer’s re-

' Article V of the collective bargaining agreement provides:

The Union agrees to furnish upon request by the Employer

duly qualified journeymen and apprentice sheet metal workers in

sufficient numbers as may be necessary to properly execute work

contracted for by the Employer in the manner and under the con-

ditions specified in this Agreement. Employers agree to confirm,

in writing, to Local No. 6 when requesting employees. The Union

(1)

2

quest for particular employees (Pet. App. A6). However,

if the employer does not request particular individuals or

if individuals requested are unavailable, the Union refers

workers from an “out-of-work list” (id. at AS-A6). The

Union begins at the top of the list and attempts to contact

workers in the order they appear. A member who is con-

tacted may accept the employment or decline and retain

his place on the list. The Union continues down the list un-

til it has obtained a sufficient number of workers to satisfy

the employer’s request. Jd. at A6. A sheet metal worker is

‘not required to seek work exclusively through the out-of-

work list, but rather may solicit employment directly from

sheet metal contractors (id. at A5).

In this action, petitioner Breininger, a member of the

Union, has alleged that the Union has refused to honor

employer requests for his services and has unjustifiably

passed him over in making referrals from the out-of-work

list. Pet. App. Al8-A20. His amended complaint states

two legal theories. First, the complaint alleges that the

Union has breached its “duty of fair representation” by

acting “arbitrarily, discriminatorily, and/or in bad faith”

in denying petitioner referrals for employment and refus-

ing to process his internal union grievances challenging

this mistreatment (Pet. App. A18-A20). Second, the com-

plaint alleges that petitioner opposed the incumbent union

leadership in an election campaign and that his discrimina-

tory treatment in job referrals “has been part of wide-

spread, improper discipline for political opposition in

violation of” Sections 101(a)(5) and 609 of the Labor

Management Reporting and Disclosure Act (LMRDA), 29

agrees not to delay the referral of employees because of delays in

mailing the request.

If the Union does not provide enough workers within 48 hours, an

employer may fill the positions itself.

3

U.S.C. 411(a)(S) and 529 (id. at A21). The Union has

denied that it has engaged in any discrimination against

petitioner. :

2. After discovery, the district court granted a motion

by the Union for summary judgment and dismissed the

complaint (Pet. App. A4-A10). The court held that all of

petitioner’s claims were within the exclusive jurisdiction of

' the National Labor Relations Board (NLRB). Applying

the general rule of preemption set out in San Diego Build-

ing Trades Council v. Garmon, 359 U.S. 236 (1959), the

district court determined that “discrimination in hiring

hall referrals constitutes an unfair labor practice under”

Sections 8(b)(1)(A) and 8(b)(2) of the National Labor

Relations Act (NLRA), 29 U.S.C. 158(b)(1)(A), 158(b)(2),

and concluded that “[t}he NLRB has exclusive jurisdiction

over discrimination in hiring hall referrals.” Pet. App. A9.

3. Ina brief per curiam opinion, the court of appeals

affirmed (Pet. App. Al-A3). The court of appeals agreed

with the district court that “union discrimination in job

referrals is a matter within the exclusive jurisdiction of the

NLRB” (Pet. App. A2), adding that it was “of no conse-

quence that the union’s allegedly discriminatory referral

policies are described as a breach of the NLRA’s duty of

fair representation or as a violation of the LMRDA’s bill

of rights” (ibid.). The court of appeals also concluded that

petitioner’s fair representation claim was insufficient be-

cause petitioner had not “affirmatively alleg{ed] that his

employer breached the collective bargaining agreement”

(ibid.).

Finally, the court of appeals ruled that petitioner’s

LMRDA claim was without merit on the ground that

“({djiscrimination in the referral system * * * does not con-

Stitute ‘discipline’ within the meaning of LMRDA” (Pet.

App. A3). Relying on Finnegan v. Leu, 456 U.S. 431

(1982), the court stated that the LMRDA was “intended to

4

secure the rights of members in their status as union

members and does not secure other rights related to a

member’s employment.” Pet. App. A3. The court con-

cluded that “{hjiring hall referrals are not a function of

union membership since referrals are available to non-

members as well as to members” (ibid.).

DISCUSSION

The court of appeals’ holding that the NLRA preempts

federal jurisdiction over petitioner’s fair representation

and LMRDA claims conflicts with decisions of this Court,

other courts of appeals, and other panels of the Sixth Cir-

cuit. We believe that further review by this Court is war-

ranted to resolve this conflict. In our view, the court of ap-

peals also erred in concluding that the reasoning of Finne-

gc v. Leu, supra, forecloses petitioner’s LMRDA claim,

as that claim was expressed in the complaint.

1. Garmon, supra, states the general rule regarding the

scope of the NLKB’s exclusive jurisdiction (359 U.S. at

245):

When an activity is arguably subject to § 7 or § 8 of

the [National Labor Relations] Act, the States as well

as the federal courts must defer to the exclusive com-

petence of the National Labor Relations Board

*.?.)

As both lower courts found, petitioner’s fair representa-

tion and LMRDA claims fall within the scope of this

general rule. Petitioner has alleged that the Union denied

him referrals because of his intra-union political activity.

? Accord, e.g., Local 100, United Ass'n of Journeymen v. Borden,

373 U.S. 690, 697 (1963); ron Workers v. Perko, 373 U.S. 701, 705

(1963); Amalgamated Ass'n of Street, Elec. Ry. & Motor Coach Em-

plovees v. Lockridge, 403 U.S. 274, 302 (1971); Farmer v. United

Brotherhood of Carpenters, 430 U.S. 290, 305 (1977).

5

If it occurred, such discriminatory conduct would at least

arguably violate Section 8(b)(1)(A) of the NLRA, 29

U.S.C. 158(b)(1)A), which prohibits a union both from

restraining Or coercing employees in the exercise of their

rights to engage in union activity and from breaching its

duty of fair representation.’

However, Garmon’s general rule is not absolute. This

Court has recognized exceptions for various categories of

cases as to which “it could not fairly be inferred that Con-

gress intended exclusive jurisdiction to lie with the

NLRB.” Vaca v. Sipes, 386 U.S. 171, 179 (1967). See

Farmer v. Carpenters, 430 U.S. at 296-297. The court of

appeals erred, in our view, when it failed to recognize that

each of the claims set forth in petitioner’s complaint was

subject to a well-established exception to the Garmon rule.

a. In Vaca v. Sipes, supra, an employee who had been

discharged by his employer claimed that his union had

breached its duty of fair representation by failing to ex-

haust contractual grievance procedures to obtain his rein-

statement. The Court held that this claim was not within

the NLRB’s exclusive jurisdiction — even though the Board

had previously characterized a breach of the duty of fair

representation as an unfair labor practice under the

NLRA. The Court reasoned that “[a] primary justification

for the pre-emption doctrine —the need to avoid conflict-

ing rules of substantive law in the labor relations area and

the desirability of leaving the development of such rules to

the administrative agency created by Congress for that

> Local 100, United Ass'n of Journeymen v. Borden, 373 U.S. 690,

697 (1963). See Radio Officers’ Union vy. NLRB, 347 U.S. 17, 40

(1954) (NLRA designed “to allow employees to freely exercise their

right to join unions, be good, bad, or indifferent members, or abstain

from joining any union without imperiling their livelihood”); Vaca v.

Sipes, 386 U.S. 171 (1967) (assuming breach of duty of fair repre-

sentation is arguably subject to the NLRA); pp. 9-10, infra.

6

purpose—is not applicable to cases involving alleged

breaches of the union’s duty of fair -presentation.” 386

U.S. at 180-181.4 The Court also found that the duty of

fair representaticn was a “bulwark to prevent arbitrary

union conduct against individuals stripped of traditional

forms of redress by the provisions of federal labor law”

(id. at 182). Noting that the Board’s General Counsel has

unreviewable discretion to refuse to institute unfair labor

practice proceedings, the Court was unwilling to assume

that Congress intended to deny employees their traditional

judicial remedy for a breach of the duty of fair representa-

tion. Jd. at 183. Finally, the Court cited “intensely prac-

tical considerations” in support of its conclusion that fair

representation claims were not preempted (ibid.). Claims

that a union had breached its duty of fair representation

would often arise in employees’ suits to enforce collective

bargaining agreements, the Court explained, so that it

would be anomalous and unwieldy to preclude courts

from adjudicating those fair representation issues in such

actions. /d. at 183-187.

Since Vaca v. Sipes, this Court, other courts of appeals,

and other panels of the Sixth Circuit have agreed that fair

representation claims are not within the NLRB’s exclusive

jurisdiction. E.g., Communications Workers v. Beck, No.

86-637 (June 29, 1988), slip op. 5-6; Amalgamated Ass’n

of Street, Elec. Ry. & Motor Coach Employees v. Lock-

* The Court explained that courts had developed the fair represen-

tation doctrine before the Board acquired statutory jurisdiction over

union activities and before the Board first ruled that breaches 6: the

duty of fair representationewere unfair labor practices; that, rather

than developing the fair representation doctrine itself, the NLRB had

adopted that doctrine as it had been applied in the courts; and that

there was doubt as to whether the Board had any more expertise than

courts with respect to issues arising in fair representation cases. /d. at

181.

;

ridge, 403 U.S. 274, 299 (1971); Storey v. Local 327, Inter-

national Brotherhood of Teamsters, 759 F.2d 517 (6th Cir.

1985); Journeymen Pipe Fitters Local 392 v. NLRB, 712

F.2d 225, 228-229 (6th Cir. 1983); Lewis v. Local Union

No. 100 of the Laborer’s International Union, 750 F.2d

1368, 1375-1377 (7th Cir. 1984); Jn re Carter, 618 F.2d

1093, 1104 (Sth Cir. 1980); Beriault v. Local 40, Super

Cargoes & Checkers, 501 F.2d 258, 263-265 (9th Cir.

1974); Smith v. Local No. 25, Sheet Metal Workers Int’l

Ass'n, 500 F.2d 741, 745-749 (Sth Cir. 1974). To our

knowledge, no other court has held that a properly plead-

ed fair representation claim is preempted by the NLRA.°

The grounds advanced by the court of appeals to justify

its contrary decision are not well founded:

First, court jurisdiction over fair representation claims

is not limited to cases in which an employee “affirmatively

allege[s} that his employer breached the collective bargain-

ing agreement” (Pet. App. A2). In Communications

Workers v. Beck, supra, this Court upheld jurisdiction

over a fair representation claim although no allegation of

employer breach was or could have been made. And in

Lockridge, 403 U.S. at 299, the Court observed, “[A]n ac-

tion seeking damages for injury inflicted by a breach of a

union’s duty of .air representation [is] judicially

cognizable in any event, that is, even if the conduct com-

plained of [is] arguably protected or prohibited by the

* The court of appeals erred in suggesting that Journeymen Pipe —

Fitters Local 392, supra, and Laborers Health & Welfare Trust Fund

v. Advanced Lightweight Concrete Co., 779 F.2d 497 (9th Cir. 1985),

aff'd, No. 85-2079 (Feb. 23, 1988), required the submission of fair

representation claims to the Board. See Pet. App. A2. Indeed, in the

former case, the court observed that “[ujnder current law, an

employee who has not been fairly represented may seek relief in more

than one forum * * *.” 712 F.2d at 228. Laborers Health & Welfare

Trust Fund did not address the issue.

National Labor Relations Act and whether or not the

lawsuit [is] bottomed on a collective agreement” (emphasis

added). Other courts of appeals and another panel of the

Sixth Circuit have agreed that Vaca “establishes a broad

immunity from preemption for all fair representation

suits,” not just cases that arise out of a breach of a collec-

tive bargaining agreement. Lewis v. Local Union No. 100,

750 F.2d at 1376. Accord, e.g., Storey, 759 F.2d at 523;

Beriault, 501 F.2d at 264-266; Smith, 500 F.2d at

748-749.

Second, Local 100, Journeymen v. Borden, supra, does

not require dismissal of petitioner’s claims (see Pet. App.

A2). Borden held that the NLRA preempted the applica-

tion of state law to a claim arising from discrimination in

referrals, and the statement there that the NLRB’s ex.

clusive jurisdiction depends on the “conduct” in issue, as

opposed to the “label affixed to the cause of action” (373

U.S. at 698), must be understood in that context. Even

though fair representation claims based on federal law can

* This Court first recognized the fair representation doctrine in

cases involving the negotiation of agreements which discriminated

against certain union members (e.g., Steele v. Louisville & N.R.R.,

323 U.S. 192 (1944)), and the duty of fair representation is now under-

stood to apply to the negotiation, ..dministration, and enforcement of

collective agreements (Beck, slip op. 6).

The court of appeals relied upon Bagsby v. Lewis Brothers, Inc.,

820 F.2d 799 (6th Cir. 1987). The plaintiff in that action sought relief

in court for a breach of a collective bargaining agreement without first

exhausting contractual grievance procedures. In that type of case, an

employee concededly cannot prevail without demonstrating both that

the union has breached the duty of fair representation in presenting

the employee's grievance and that the employer has breached the col-

lective bargaining agreement. See Hines v. Anchor Motor Freight,

Inc., 424 U.S. $54, 570-571 (1976): Clayton v. Automobile Workers,

451 U.S. 679, 681, 685-687 (1981). A showing of employer breach is

not necessary, however, where the relief an employee is seeking is not

dependent on a breach of contract. ,

v

)

9

involve conduct that is arguably subject to the NLRA,

those claims may nevertheless be judicially vindicated be-

cause “the particular rule of law sought to be invoked

* * * is so structured and administered that, in virtually all

instances, it is safe to presume that judicial supervision

will not disserve the interests promoted by the federal

labor statutes.” Lockridge, 403 U.S. at 297-298 (emphasis

added).’

In short, if petitioner’s fair representation claim was

colorable, the district court had jurisdiction under 28

U.S.C. 1331 and 1337 to reach the merits. In our view, the

amended complaint did state such a claim. Wnen a collec-

tive bargaining agreement establishes a referral system for

employment of members of the bargaining unit, a union’s

operation of that system represents the “administration”

of the collective bargaining agreement and is thus arguably

within the scope of the union’s duty of fair representation.

Beck, slip op. 6. Several courts of appeals and the NLRB

have held that a union breaches its duty to the members of

a bargaining unit when it discriminates or acts arbitrarily

or in bad faith in the operation of an exclusive hiring hall

or referral system. Smith v. Locai 25, 500 F.2d at 748-749;

Beriault v. Local 40, 501 F.2d at 264-266; Lewis v. Local

100, Laborers, 750 F.2d at 1376; Operating Engineers,

Local 406 (Ford, Bacon & Davis), 262 N.L.R.B. 50, 51, 57

(1982), enforced, 701 F.2d 504, 508-509 (Sth Cir. 1983);

Pipefitters Local 392 (Kaiser Engineers), 252 N.L.R.B.

417, 21-422 (1980); Cell-Crete Corp., 288 N.L.R.B. No.

32 (Mar. 29, 1988). The Board has explained that “a labor

organization must conform with and apply lawful contrac-

tual standards in the operation of the [hiring] hall and any

” As the Court cautioned in Beck, slip op. 6, “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 repre-

sentation.” See also Lockridge, 403 U.S. at 301.

10

departure from such standards which results in a denial of

employment to an applicant for referral” constitutes the

kind of “unfair, irrelevant, or invidious” treatment which

violates the union’s duty of fair representation — absent a

showing that “the action was necessary for the effective

performance of [the union’s} function in representing its

constituency.” Operating Engineers Local 406, supra, 262

N.L.R.B. at 57. Though the referral system in this case

may be nonexclusive, petitioner’s fair representation claim

was arguably valid and should have been decided on the

merits, rather than through the application of the pre-

emption doctrine.*

* A referral system is “exclusive” if the union has exclusive authority

to provide workers to employers, even if that authority is limited to a

specified period of time, such as 24 or 48 hours, or to a specified per-

centage of the work force. Carpenters Local 608 (Various Employers),

279 N.L.R.B. 747, 754 (1986), enforced on other grounds, 811 F.2d

149 (2d Cir. 1987), cert. denied, No. 86-1760 (Oct. 5, 1987). In this

case, the district court found that employees were free to seek employ-

ment on their own, and petitioner does not appear to dispute that

finding. Though the cases cited in text are not squarely on point with

respect to such a nonexclusive system, at least a substantial argument

could be made that, when a union undertakes to establish an optional

referral system pursuant to the terms of a collective bargaining agree-

ment as to which it is the employees’ exclusive representative, its duty

of fair representation extends to the operation of the referral system.

The Board has held that a union operating a nonexclusive referral

system violates Section 8(b)(1)(A) of the NLRA if it refuses to refer an

employee because of the employee's exercise of rights protected by

Section 7, 29 U.S.C. 157. See Chauffeurs’ Union, Local 923 (Yellow

Cab), 172 N.L.R.B. 2137 (1968); Houssting & Portable Engineers,

Local 4 (Carlson Corp.), 189 N.L.R.B. 366, 367 (1971), enforced, 456

F.2d 242 (ist Cir. 1972). It has not, as yet, ruled directly on whether

such conduct would also violate the union’s duty of fair representa-

tion. But see Bricklayers’ Local 8, 235 N.L.R.B. 1001, 1007 (1978);

Carpenters Local 1016 (Bertram Consir.), 272 N.L.R.B. 539 (1984).

See also Carpenters Local 608, 279 N.L.R.B. at 747 n. | (finding an

exclusive system, and thus declining to rely on an ALJ's conclusion

11

b. The court of appeals also erred in holding that peti-

tioner’s LMRDA claim was preempted.’ In /nternational

Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233

(1971), a union member claimed that he had been expelled

from the union in violation of Section 101(a)(5) of the Act,

29 U.S.C. 411(a)(5). The union argued that, because the

suit involved a claim that the union had discriminated in

job referrals, the action was subject to the NLRB’s ex-

clusive jurisdiction. 401 U.S. at 239. This Court concluded

that this argument had “no merit” (ibid.). After reviewing

the principles underlying the preemption doctrine, the

Court found that Hardeman’s LMRDA claim implicated

none of those principles. Jd. at 240. The courts of appeals

have uniformly concluded that a variety of LMRDA

claims are not preempted. Schmid v. United Brotherhood

of Carpenters, 773 F.2d 993, 995 (8th Cir. 1985); Quinn v.

DiGiulian, 739 F.2d 637, 642-644 (D.C. Cir. 1984);

Vandeventer v. Local Union No. 513 of the International

Union of Operating Engineers, 579 F.2d 1373, 1377-1378

(8th Cir.), cert. denied, 439 U.S. 984 (1978); Keene v. In-

ternational Union of Operating Engineers, Local 624, 569

F.2d 1375, 1379 (Sth Cir. 1978). We believe, therefore,

that the court of appeals erred when it held that

petitioner’s claim was preempted regardless of whether the

that the duty of fair representation attaches to administration of a

nonexclusive system). See also Hines v. Anchor Motor Freight, 424

U.S. 554, 564 (1976) (duty of fair representation is equal in scope to

authority conferred on exclusive bargaining agent by the NLRA).

Because the lower courts in this case held that petitioner’s fair

representation claim was preempted, they did not reach these issues. If

the Court were to grant review and reverse with respect to preemption,

these issues could appropriately be addressed on remand.

* Although the court of appeals’ opinion is not entirely clear, we

read it as dismissing petitioner’s LMRDA claim on two alternative

grounds: (1) preemption and (2) the absence of a showing of

“discipline” within the meaning of the Act.

‘12

Union’s alleged discrimination was “described * * * as a

violation of the LMRDA’s bill of rights.” Pet. App. A2.

c. The court of appeals’ decision that petitioner’s fair

representation and LMRDA claims were within the exclu-

sive jurisdiction of the NLRB is a substantial departure

from previously settled preemption doctrine. The weight

of authority on the other side of this issue and the brevity

of the court’s reasoning may deprive this decision of

lasting significance. But especially in view of the court of

appeals’ decision to publish its opinion, as well as its

mistaken reliance on the Borden decision, we believe that

review by this Court — perhaps even summary review — is

appropriate to resolve the conflict between this decision

and the decisions of this Court and other courts of ap-

peals.

2. The court of appeals also held that petitioner’s

LMRDA claim was invalid on its merits because petitioner

“did not demonstrate that he was improperly ‘disciplined,’

a crucial element to a LMRDA claim.” Pet. App. A3.

Relying principally on Finnegan v. Leu, supra, the court

stated that the LMRDA “is intended to secure the rights of

members in their status as union members and does not

secure other rights related to a member’s employment” and

that “[{hjiring hall referrals are not a function of union

membership” (Pet. App. A3). In our view, the reasoning

of Finnegan v. Leu does not justify the court of appeals’

holding. Moreover, whether or not the complaint alleged

that petitioner was “disciplined,” it may state an independ-

ent claim based upon an alleged infringement of peti-

tioner’s rights within the meaning of Section 102 of that

Act, 29 U.S.C. 412.

Section 101(a) of the LMRDA, 29 U.S.C. 411(a), estab-

lishes a “bill of rights” for union members. Among those

rights are the right to free speech and the right to specified

procedural due process before one is “fined, suspended,

13

expelled, or otherwise disciplined” by a union. 29 U.S.C.

411(a)(2), 411(a)(5). Under Section 102 of the Act, 29

U.S.C. 412, a person whose rights “have been infringed”

by a violation of these provisions may seek relief in a

federal! district court. Section 609 of the Act, 29 U.S.C.

529, makes it unlawful for a union “to fine, suspend, ex-

pel, or otherwise discipline any of its members for exer-

cising any right to which he is entitled under the provisions

of this chapter [29 U.S.C. 401-531].” A violation of Sec-

tion 609 is also actionable under Section 102.

Citing all of these provisions, petitioner’s amended com-

plaint alleges in essence that the Union has “disciplined”

him for his political activities by discriminating against

him in job referrals (Pet. App. A21). It concludes (ibid.):

Plaintiff's discriminatory treatment in job referrals

* * * has been part of widespread, improper disci-

pline for political opposition in violation of 29 U.S.C.

411(5) and 29 U.S.C. 529.

In our view, Finnegan v. Leu does not foreclose such a

claim. 5

In Finnegan, a newly elected president of a local union

discharged the local’s business agents and appointed re-

placements loyal to him. The agents who had been dis-

charged brought an action under the LMRDA, alleging

that they had been “otherwise disciplined” for their politi-

cal support for the former president in violation of Section

.609. This Court affirmed the dismissal of the complaint,

holding that “removal from appointive union employment

is not within the scope of those union sanctions explicitly

prohibited by § 609 [of the LMRDA|].” 456 U.S. at 439.

The Court also held that the discharges could not be

challenged by alleging an “infringement” of the agents’

rights within the meaning of Section 102 of the Act, since

those rights were not intended to “restrict the freedom of

7

14

an elected union leader to choose a staff whose views are

compatible with his own.” Jd. at 441.

The court of appeals’ decision extends Finnegan v. Leu

to actions by a union which deprive a union member of

employment, not by the union, but by employers in a bar-

gaining unit. We do not believe that Finnegan v. Leu

should be read this broadly. The term “otherwise disci-

plined” in Sections 101(a)(5) and 609 of the statute would

seem to encompass a union member’s removal from or

demotion on an out-of-work list based upon a violation of

a union rule or policy or the member’s intra-union political

activity. Indeed, it would be anomalous to conclude that

the LMRDA prohibits a union from expelling a member

from the union without due process or for expressing

political opposition to a union’s leadership, but not from

excluding that member from a union hiring hall. In Fin-

negan, 456 U.S. at 435-436, this Court noted that the

LMRDA “placed emphasis on the rights of union members

to freedom of expression without fear of sanctions by the

union, which in many instances could mean loss of union

membership and in turn loss of livelihood.” If Congress

was concerned about union discipline that could lezd in-

directly to “loss of livelihood,” it is unlikely that it would

have exempted union job referral systems from the Act,

since discipline imposed through referrals affects livelihood

directly.

To be sure, in Finnegan, this Court relied on the fact

that in Section 609 the phrase “otherwise disciplined” fol-

lows three “punitive actions” — fine, suspension, and ex-

pulsion—which are “taken against union members as

members.” 456 U.S. at 437-438. To the extent that hiring

hall referrals are available to non-union members, dis-

crimination in such referrals may not neatly fit this de-

scription. Nevertheless, at a minimum, we believe that

“discipline” for purposes of the LMRDA includes a sanc-

tion imposed by a union on a union member, through the

15

operation of a hiring hall or referral system, if the purpose

of that sanction is to enforce union rules or policies, or to

punish disfavored political positions. '°

Moreover, even if discrimination in referrals did not

constitute “discipline,” retaliation for intra-union political

activity taking that form should nevertheless be actionable

'0 In Miller v. Holden, $35 F.2d 912, 914-915 (1976), the Fifth Cir-

cuit also applied the maxim of ejusdem generis to the phrase “fined,

suspended, expelled, or otherwise disciplined” in Sections 101(a)(5)

and 609 of the Act and concluded that an action affecting a member’s

employment could constitute “discipline” when (535 F.2d at.915):

(1) it is undertaken under color of the union’s right to control the

member’s conduct in order to protect the interests of the union,

and (2) it directly penalizes him in a way which separates him

from comparable members in good standing.

Commentators have differed on the extent to which union actions

reducing a member’s employment opportunities constitute discipline

for purposes of the Act. Compare Etelson & Smith, Union Discipline

Under the Landrum-Griffin Act, 82 Harv. L. Rev. 727, 732-735 (1969)

(such actions constitute discipline when “undertaken under color of

the union’s right to control the member’s conduct in order to protect

the interests of the union”), and Beaird & Player, Union Discipline of

its Membership Under Section 101(a)(5) of Landrum-Griffin: What is

“Discipline” and How Much Process is Due?, 9 Ga. L. Rev. 383, 392

(1975) (“The idea that ‘discipline’ includes only union action which af-

fects membership status is unnecessarily narrow.”), with Comment,

Applicability of LMRDA Section 101(a)(5) to Union Interference with

Employment Opportunities, 114 U. Pa. L. Rev. 700, 702 (1966)

(“interference with employment opportunities should be excluded

from the scope of section 101(a)(5)”). .

Concededly, not every action by a union adverse to a member can

be characterized as “discipline.” While the confines of “discipline” are

not altogether clear, that term ordinarily refers to actions designed to

enforce union rules, policies, or political viewpoints. The term derives

some meaning, moreover, from the fact that “discipline” triggers a

right to procedural due process under Section 101(a)(5). Presumably,

an adverse action must be of a type that would make such procedures

meaningful.

16

under Section 102 of the Act as an “infringement” of the

member’s protected rights of free speech and assembly.

“{A] litigant may maintain an action under § 102—to

redress an ‘infringement’ of ‘rights secured’ under Title I —

without necessarily stating a violation of § 609.” Finnegan

v. Leu, 456 U.S. at 439. In Sheet Metal Workers’ Int'l

Ass’n v. Lynn, No. 86-1940 (Jan. 18, 1989), the Court

framed the test for an action under Section 102 as follows

(slip op. 7 (quoting Finnegan v. Leu, 456 U.S. at 441)):

Whether such interference [with a right protected by

Section 101(a)] gives rise to a cause of action under

§ 102 must be judged by reference to the LMRDA’s

basic objective: “to ensure that unions [are] demo-

cratically governed, and responsive to the will of the

union membership as expressed in open, periodic

elections.”

Under this test, discrimination in hiring hall referrals

based upon protected intra-union political activity of the

sort referred to in petitioner’s complaint should be re-

dressible under Section 102. Certainly, none of the con-

siderations supporting this Court’s determination in Fin-

negan v. Leu—that discharges from appointed policy-

making positions in a union are exempt from the

LMRDA~—applies to such a case. See 456 U.S. at

441-442.'!

'! Indeed, in Finnegan v. Leu, 456 U.S. at 441 n.11, this Court re-

served the question whether Section 102 would apply to discharges of

“nonpolicymaking and nonconfidential employees.” And in Lynn,

supra, the Court held that elected union officials may noi be dis-

charged on the basis of their protected political activity. It would be

anomalous if the Act prohibited discharges of these categories of em-

ployees from union positions, but did not apply to retaliatory refusals

to place rank-and-file union members in positions with other

employers.

17

Though not squarely inconsistent with holdings of the

Sixth Circuit or other courts of appeals,'? the decision in

this case extends the reasoning of Finnegan v. Leu farther

than any other decision has taken it. In Murphy v. Inter-

national Union of Operating Engineers, Local 18, 774

F.2d 114 (1985), cert. denied, 475 U.S. 1017 (1986), a dif-

ferent panel of the Sixth Circuit held that a unio” _ refusal

to register a member’s card in a union-operaed job refer-

ral system, based upon the member’s alleged theft of an

election control list, was “discipline” for purposes of the

LMRDA. Rejecting che claim that this action was “em-

ployment-reiated” and thus exempt from the LMRDA

under the reasoning of Finnegan v. Leu, the court ex-

plained (id. at 123-124):

The Union’s action in foreclosing Murphy’s participa-

tion in the work referral program was a sancticn

which set him apart from other members in good

standing. It unquestionably affected his membership

rights. Judge Lambros correctly held that the removal

of the card was discipline impermissibly imposed

without a full and fair hearing.

The court also held that, although the district court had

ruled that discrimination in the referral system based upon

a member’s union political ac*'vity was not “discipline,”

that type of retaliation was disectly actionable under Sec-

tion 102 of the Act (id. at 122-123).

Two other courts of appeals have held that a union’s

suspension of a member from a job referral system be-

cause the member had violated the terms of a collective

bargaining agreement did not constitute “discipline” for

'2 The rationale of the court of appeals’ decision is, however, at

odds with the reasoning of at least one pre-Finnegan decision in the

Fifth Circuit. Keene v. International Union of Operating Engineers,

Local 624, AFL-CIO, 569 F.2d at 1379-1380.

purposes of Section 101(a)(5) of the Act. Turner v. Local

Lodge No. 455 of the International Brotherhood of

Boilermakers, 755 F.2d 866 (11th Cir. 1985) (observing il-

legal picket line); Hackenburg v. International Brother-

hood of Boilermakers, 694 F.2d 1237 (10th Cir. 1982)

(wildcat strike). Both courts held that, under the reasoning

of Finnegan v. Leu, the enforcement of a collective

bargaining agreement did not affect a union member's

rights or status as a member of the union and did not im-

plicate the purposes of the LMRDA. 755 F.2d at 869-870;

694 F.2d at 1239. While there is language in both opinions

suggesting that discrimination in a job referral system

open to both union members and non-members cannot be

considered “discipline” for purposes of the LMRDA,

neither decision compels that result. In Turner, for in-

stance, the court stated that, if the employee had alleged

“retaliation for [the] exercise of a protected right, the case

might be different.” 755 F.2d at 870. See Moore v. Elec-

trical Workers Local 569, 653 F. Supp. 767, 770(S.D. Cal.

1987) (“It simply does not follow that a given action

{discrimination in hiring from an out-of-work list] does

not affect a member’s rights or status simply because non-

members may belong to the list.”). Since petitioner has

alleged that the Union retaliated against him because of

his intra-union political activity and since any adverse ac-

tion the Union has taken cannot be justified asa means of |

enforcing a collective bargaining agreement, Turner and

Hackenburg do not emer the court of appeals’ decision

in this case.

In conclusion, we do not believe that Finnegan v. Leu

forecloses petitioner’s claim that the union discriminated

against him in job referrals in retaliation for his intra-

union political activity. Even if retaliation of this type is

not “discipline” for purposes of Section 609, it should re-

NM

TT —_—, =. 2 = > eS ee ee = * a a TT FS

19

main actionable under Section 102 as an “infringement” of

petitioner’s rights under Section 101(a)(2) of the Act.'?

'? We note that the last question presented in the petition (Pet. i),

which focuses on the issue of “discipline,” may not encompass the

issue whether the Union “infringed” petitioner's rights within the

meaning of Section 102. But we believe that a fair reading of the com-

plaint, with its invocation of Section 102 and the LMRDA bill of

rights, does raise that issue, and we therefore suggest that, if the Court

decides to grant plenary review, the issue is an appropriate one for

consideration.

20

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

Davie L. SHAPIRO

Deputy Solicitor General

STEPHEN L. NIGHTINGALE

Assistant to the Solicitor General

ROSEMARY M. COLLYER

General Counsel

ROBERT E. ALLEN

Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

National Labor Relations Board

JERRY G. THORN

Acting Solicitor

ALLEN H. FELDMAN

Associate Solicitor

STEVEN J. MANDEL

Counsel for Appellate Litigation

ANNE P. FUGETT

Altorney

Department of Labor

JANUARY 1989

~: US GOVERNMENT PRINTING OFFICE 1989—241.699/00076