# Amicus Curiae Brief — Breininger v. Sheet Metal Workers

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0233%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 67

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0233%3A04. Public record. Not legal advice.