Appellant Brief 11/06/13

8/13/2019 Appellant Brief 11/06/13

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UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_________________________________________________________________

No. 13-2009__________________________________________________________________

BRENDON LYDON,

Plaintiff-Appellant,

v.

LOCAL 103, INTERNATIONAL BROTHERHOOD

OF ELECTRICAL WORKERS, Defendant-Appellee.

_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

__________________________________________________________________

REVISED BRIEF FOR PLAINTIFF-APPELLANT BRENDON LYDON

__________________________________________________________________

George P. Fisher, Pro Hac Vice,

George P. Fisher, Attorney at Law

3635 S.W. Dosch Road

Portland, OR 97239

OSB #91043

(503) 224-7730

Susan E. StengerBurns & Levinson LLP

125 Summer Street

Boston, MA 02110

BBO #555552

(617) 345-3739

November 4, 2013

Case: 13-2009 Document: 00116607785 Page: 1 Date Filed: 11/06/2013 Entry ID: 577798


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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......iv

REASONS WHY ORAL ARGUMENT SHOULD BE HEARD...1

JURISDICTIONAL STATEMENT...1

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ...1

STATEMENT OF THE CASE.........2

STATEMENT OF THE FACTS...7

SUMMARY OF ARGUMENT...13

ARGUMENT..14

I. The District Court Abused its Discretion When it Failed toConsider the Documents Lydon Submitted In Opposition To

Local 103s Motion to Dismiss, Or In the Alternative,

For Summary Judgment .................................................................16

II. Lydons Second Amended Complaint States a Claim forViolation of the LMRA.......................................................................17

a. District Courts First LMRA Error: A labororganization cannot discriminate among its

own members..................................................................19

b. District Courts Second Error: Implementation ofthe Solicitation System Is an Unfair LaborPractice..........................................................................25

III. Lydons Second Amended Complaint States a Claim forViolation of the LMRDA...................................................................29



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IV. Lydons Second Amended Complaint State a Claim forViolation of the Duty of Fair Representation ....................................37

a. Negotiation of the Solicitation System WasArbitrary, Dishonest, and in Bad Faith, and

Therefore Does not fall into Wide Range of

Reasonableness Afforded to Unions............................. 40

b. A Union Breaches its Duty Of FairRepresentation When it Acts Arbitrarily,

Discriminatory, or in Bad Faith Regardless

of the Comparative Source ...........41

c. A Union Breaches Its Duty of FairRepresentation When it Operates a Hiring Hall

in a Discriminatory Fashion..........................................42

d. Lydons Second Amended Complaint Statesa Plausible Claim for Breach of Duty of Fair

Representation .............................................................44

CONCLUSION...45

CERTIFICATE OF COMPLIANCE WITH FED.R.APP.P.32...46

CERTIFICATE OF SERVICE..47

ADDENDUM



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NLRB v. Intl Bhd. of Elec. Workers, Local Union 16,

425 F.3d 1035 (7th Cir. 2005).......................................................................................38

National Labor Relations Board v. LOCAL 542, ETC.,

255 F.2d 703 (3rd Cir. 1958).............................................................................23, et. seq.

Plumbers and Pipe Fitters Local Union No. 32 v. N.L.R.B.,

50 F.3d 29 (D.C. Cir. 1995) ...........................................................................22, et.seq.

Radio-Electronics Officers Union v. NLRB,

16 F.3d 1280 (D.C. Cir. 1994), cert. denied, 513 U.S. 866 (1994)18

Steele v. Louisville & Nashville R. Co.,323 U.S. 192 (1944).................38

Sutliffe v. Epping Sch. Dist., 584 F.3d 314 (1st Cir. 2009).........14

Teamsters Local Union No. 42 v. N.L.R.B., 825 F.2d 608 (1st Cir. 1987) .. 20, et.seq.

TransSpec Truck Serv., Inc. v. Caterpillar Inc.,524 F.3d 315 (1st Cir. 2008).............16

Vaca v. Sipes,386 U.S. 171 (1967).....................................................................38-39, 41

STATUTES

29 U.S.C. 151...............................................................................................................38

29 U.S.C. 158............17-20, 23

29 U.S.C. 185...........................................17

29 U.S.C. 401...............4, 28

29 U.S.C. 411...............................................................................................28-29, 32-33

29 U.S.C. 529.....28, 32

RULES

Fed. R. Civ. P. 12 ..............................................................................................14, 16



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REASONS WHY ORAL ARGUMENT SHOULD BE HEARD

Pursuant to Federal Rule of Appellate Procedure 34(a) and Local Rule 34.0,

counsel for Plaintiff-Appellant Brendon Lydon (Lydon) respectfully requests

oral argument. Lydon believes that oral argument will assist the Court in deciding

the appeal, which involves a number of legal and factual issues. Oral argument

will enable the parties to address these issues adequately and respond to the courts

questions and concerns.

JURISDICTIONAL STATEMENT

This is an appeal from the Memorandum and Order of the district court. The

Order dismissed Lydons labor law claims brought against his union. The district

courts Order entered final judgment on July 17, 2013. Notice of appeal was

timely filed on August 8, 2013. Accordingly, this Court has jurisdiction pursuant

to 28 U.S.C. 1291.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

Whether the district court abused its discretion in failing to consider

documents submitted by Lydon in opposition to Local 103s Motion to Dismiss,

Or In the Alternative, For Summary Judgment.

Whether the district court erred in dismissing plaintiffs first claim of relief:

an alleged violation of the Labor Management Relations Act.



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Whether the district court erred in dismissing plaintiffs second claim of

relief: an alleged violation of the Labor Management Reporting and Disclosure

Act.

Whether the district court erred in dismissing plaintiffs third claim for

relief: an alleged violation of the unions duty of fair representation.

STATEMENT OF THE CASE

1. On February 29, 2012, Lydon, Pro Se, filed a complaint against Local

103. He alleged Local 103 is an exclusive hiring hall and has a standard set of

dispatch rules which govern the referral procedure in which applicants receive

employment. He also alleged that these rules are mandated by its parent

organization, known as the International Office. This language is known as

Category I language and is to be inserted in every IBEW local unions Collective

Bargaining Agreement, verbatim. Lydon then claimed, I assert that the current

Business Manager, along with the President John Dumas and the Negotiating

Committee, knowingly negotiated referral language which is in conflict with the

IBEW International Offices mandated Category I language, which I feel breaches

its Duty of Fair Representation. Lydons last allegation states, All my requests to

Local 103, IBEW for information pertaining to the current contract/referral

language have been ignored. (A.2, Dkt. #1).



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2. Still Pro Se, on August 27, 2012, Lydon filed an amended complaint

which sought relief in the form of a declaratory judgment, as well as claims of

violation of the LMRA, the LMRDA, and breach of the Duty of Fair

Representation. Lydon also alleged a Class Action , claiming that traveling

IBEW members were harmed by the change in the status of Local 103s bargaining

agreement. (A.3, Dkt. #10).

3. On September 18, 2012, Local 103 brought a motion to dismiss all of

Lydons claims, stating that Lydon does not allege facts that support his claim, and

that Lydon had not engaged in political activity or that the Unions actions were in

any way related to the speech rights protected by the LMRDA. However, Lydons

Amended Complaint clearly alleges the requirements the Union believe are absent.

(A.3, Dkt. #13).

4. On September 26, 2012, the present counsel for Lydon, Susan

Stenger and George Fisher, filed a motion for Mr. Fisher to appear on Lydons

behalf,prohac vice,which the court granted. Ms. Stenger filed her appearance in

the case on September 26, 2012. (A.4, Dkt. ##20, 22).

5. Responding to Local 103s motion, Lydon argued that his Amended

Complaint presented evidence sufficient to state a claim. (A.4, Dkt. # 24).

6. The court responded to Local 103s motion, allowing it to file a Reply

Memorandum in Support of Motion to Dismiss Plaintiffs Claim Under 29 U.S.C.



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Section 401, et seq. On October 11, 2012 A Reply Memorandum was filed by

Local 103 which argued that Lydon had failed to allege facts to raise the right to

relief under the LMRDA and provided no additional facts that could justify Lydon

being granted leave to amend his complaint. (A.5, Dkt #29).

7. On November 20, 2012, the parties submitted a Joint Statement,

pursuant to Local Rule 16.1, that proposed discovery and a Motion Plan to the

court. (A.5, Dkt. #30).

8. On November 29, 2012, the parties appeared before the court, which

stated it would take Local 103s Motion to Dismiss under consideration and that

standard procedures of discovery, supplemental pleadings, expert disclosures, etc.

(A.5, Dkt. #33; A.10-21).

9. Before any discovery by either party could commence, the court ruled

on Local 103s dismissal motion, because plaintiff has failed to plead sufficiently

to state a claim for relief that is plausible on its face. The court also found that

because Lydon filed his Amended Complaint while proceedingpro se his claims

are imprecise. (A.5, Dkt. #35).

10. Following the courts ruling, before a discovery schedule was agreed

to, Local 103 and Lydon agreed to a continuance for the filing of a summary

judgment. (A.5, Dkt. #36).



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11. The court convened a scheduling conference on November 29, 2012.

During that conference, the following statements were made (A.12-13, 16,

Transcript p. 3-4, 7):

Mr. Fisher: Our position is that the motion[to dismiss the LMRA claim] is

premature because of the later arrival of my office in the case

and that discovery is fairly well defined in our mind about what

would be needed to prevail in this case. That would include

certain records that are compiled by the defendant, Local 103,

and that upon receipt and analysis of those documents, which,

you know, were the dispatching records of electricians out to

work from 103s dispatch.

The court: So-called referrals?

Mr. Fisher: Right, Correct and do the analysis on that. [ . . . ]

These are the facts shared with me by Mr. Lydon is that after

a period of time of opposition between himself and the union,

he was placed back on the out-of-work list and then, in a

punitive way, denied additional work as a consequence of this

speech in criticizing the procedures. That involved statements

by the business manager of 103, Mr. Monahan, who told a

fellow electrician of Mr. Lydons that he had had conversation

with Mr. Monahan and that he was prepared to testify that Mr.Monahan denigrated Mr. Lydon and told out witness that he,

Mr. Lydon, you know, was a trouble maker and would not

enjoy the support of the hiring hall in the course of his

employment.



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12. On December 14, 2012, Lydon filed a Second Amended Complaint.

His allegations include: Local 103s Memo is discriminatory because it favors

access to employment between Local 103 members who solicited employment,

and procured such employment, in violation of the requirements defined in the

pattern agreement that apply to all other Local 103 members. The individuals who

solicited employment violated contractual rights stated in several union documents

and caused members, including Lydon, to not have an equal opportunity to access

the employment that should have also been available to all members. (A.22,

4.2). Included in its behavior was Local 103s invidious discrimination of

sanctioning the dispatching of members who had solicited their employers which,

in turn eliminated the opportunity for employment for members who complied

with the IBEW approved dispatch procedures. Local 103 also breached its duty of

fair representation when it bargained for terms in the CBA that are contrary to the

requirements of the IBEW that Local 103 is not enforcing its own rules and

regulations as required by the IBEW and that upon complaints about it own rules

and regulations as required by the IBEW --and that upon complaints about its

actions, Local 103 has willfully ignored Lydons complaints. (Id.6.3).

13. On December 21, 2012, Local 103 filed its Rule 56.1 Statement in

support of its motion to dismiss and its summary judgment motion. (A.36).



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14. Lydon filed his Response to Defendants Motion to Dismiss and

Motion for Summary Judgment on January 11, 2013. The Response included

documents, such as the inside Category I language, the clause requiring any

changes to the CBA must be with the approval of the IBEW International Office;

Language on Referral Procedures, the IBEW International Constitution. (A.7, Dkt.

#51).

15. Local 103s Reply memorandum in support of Motion to Dismiss, or

in the alternative, for Summary Judgment was filed on January 25, 2013. (A.7,

Dkt #53).

16. Local 103 filed its Reply on February 13, 2013. (A.8, Dkt. #63).

17. On July 17, 2013 the court granted Local 103s Motion to Dismiss

and issued an order dismissing Lydons claims. (A.9, A.171).

STATEMENT OF THE FACTS

Plaintiff in this action is Brendon Lydon (Lydon), a member of the

International Brotherhood of Electrical Workers Local 103 since 1995. (A.22,

Pl.s Second Am. Compl. 1.1). Defendant (Local 103) is a chartered member

of the International Brotherhood of Electrical Workers (IBEW). (Id. 3.1). The

IBEW is officed in Washington D.C. and establishes, and enforces rules and

regulations that direct IBEW locals, like Local 103, how to conduct their

businesses. (Id.).



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IBEW distributes to local chapters a Pattern Agreement which states the

immutable contractual terms and conditions which all Locals chartered by the

IBEW must observe in order to preserve their charters. (Id. 3.2). This

Agreement states the baseline for any Memorandum of Understanding (MOU) or

side agreements Locals make with their counterparts, the local chapters of the

National Electrical Contractors Association (NECA). (Id.). Changes to, or

adjustments of, the Pattern Agreements requires observance of specific procedures

by an IBEW Local. (Id. 3.3). The IBEWs Constitution coincides with the

Pattern Agreements terms. (Id. 3.4).1

Boston NECA represents unionized employers during the negotiation and

administration of all bargaining of the terms and conditions of employment of

Local 103 members, including matters related to dispatching of Local 103

members. (Id. 3.8).

Local 103 is party to a collective bargaining agreement (CBA), which

expressly provides that Local 103 is an exclusive hiring hall, and Local 103 must

maintain an out of work list that registers the availability of members for

employment. (Id. 3.5). The CBA does not reference or implement dispatch by

solicitation.

1Additional allegations of the requirements of the Pattern Agreement are found in

Plaintiffs Second Amended Complaint.



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Beginning in September 2006, it was common knowledge that Local 103

and the Boston NECA had agreed to a MOU that permitted dispatching by

solicitation. (Id. 3.14). The Memo itself remains unpublished to the rank and file

of Local 103. (Id.). According to Mike Monahan, who is Local 103s business

manager, Monahans staff, and other Local 103 officials, the Memo allows an

exception to Local 103s status as an exclusive dispatching hall. (Id. 3.15). As

such, the Pattern Agreements requirement of dispatching Local 103s members

chronologically can be avoided. (Id.). Based upon this Memo, Local 103

characterized itself as a non-exclusive hiring hall, meaning that if Local 103

member solicits a Boston NECA employer on his own, Local 103, pursuant to the

Memo, can endorse the solicitation. (Id.). This endorsement allows that a Local

103 to bypass his/her position on the chronological list and go work for the

employer. (Id.). Half of Local 103s dispatches are the result of solicitation of

employment by Local 103 members. (Id. 3.7).

The Solicitation System gives certain members of Local 103 an advantage

over other members who are limited to the IBEWs chronological order system of

dispatching. (Id. 3.6). A member using the chronological order system, when he

or she first registers becomes the last member eligible to take a dispatch. (Id.).

Therefore, the member must wait until the members who signed the out-of-work

list before they did are first provided employment. (Id.). The recent downturn in



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available work has translated to Local 103 members waiting for years before their

names arrive at the top of the book. (Id.).

Local 103, however, did not observe the approval procedures required by the

IBEW, and implemented the policy stated by the Memo before IBEW or the IO

actually issued a rules on Local 103s submission. (Id. 3.6).

The MOU is in direct conflict with the IBEW Pattern Agreement, which

provides the language, [t]he Union shall be the sole and exclusive source of

referral of applicants. (Id. 3.10).

Instead, Local 103 has been operating under the Memo without permission.

On or around April 2010, Lydon requested a copy of the Memo, which

Local 103 still has not provided to him. (Id. 3.17). On or around the following

month, Monahan declared to the general membership meeting of Local 103 that the

Memo authorizing solicitation dispatches did not require approval by the IBEW.

(Id. 3.18). Around this time, Lydon wrote a letter to the president of IBEW

stating that Local 103 was not observing the Pattern Agreement and that he had

personally observed members of Local 103 using the solicitation dispatch

procedure to avoid the lengthy wait for a dispatch using Local 103s

chronologically registered premised procedure (Id. 3.19).



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On or around December 2010, Lydon made a formal complaint to the IBEW

2nd District Vice President, Frank Carroll. (Id. 3.20). Lydon objected to the

dispatch procedure, but no action was taken. (Id.).

On or around May 2011, Lydon removed himself from the list of

participants in Local 103s and the Boston NECAs Drug Free Program under

which Lydon had been eligible for additional jobs in exchange for voluntarily

submitting to drug testing. (Id. 5.2). Lydon left the program because he learned

of a long-term construction job that was coming on line, and for which he was in a

chronologically favorable position to procure. (Id.). Lydon was also not satisfied

with the opportunities the Drug Free Program employers offered him. (Id.).

Lydon had signed onto the Drug Free Program in the first place because it allowed

members to take dispatches non-members couldnt take because they were not

registered. (Id.). Nevertheless, and for reasons unknown, the Local 103 hiring hall

did not receive the information of Lydon having withdrawn from the program. (Id.

5.3).

On or around August 2011, ratification of a new version of the CBA was

agreed upon between Local 103 and the Boston NECA, which was then sent to the

IBEW for approval. (Id. 3.22). Upon information and belief, the Memo

concerning dispatching by solicitation was included. (Id.). The president of IBEW,

Edwin Hill, wrote to Lydon that the proposed new CBA was conditionally



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approved, but no reference to the status of the Memo and its use of solicitation

dispatches. (Id.).

On or around October 2011, Lydons name was close enough to the top of

the Local out-of-work list to permit him to begin the selection process of for whom

and where he would be going it work. (Id. 5.4). During the time Lydon was at

the top of the out-of-work list, he was given, by rule, three refusals for offered

work--that upon three refusals Lydons name would be placed at the bottom of the

out-of-work list. (Id.). In this case, Local counted Lydons refusals under the

Drug Free Program, even though Lydon was ineligible for the Program, and those

positions, at the time. (Id.).

Lydon challenged the refusal rule, and was told the matter would be put

before Monahan, who upheld the three refusals in Lydons case. (Id. 5.5).

Although Lydons appeal was denied, another member of Local 103 who was

appealing a separate ruling encountered Monahan during the proceeding

considering Lydons appeal. (Id. 5.6). At that time, Monahan told the member

that his being rolled off the book was not personal--that the solicitation policy

was in place because there were undesirables in the Local, and the Lydon was

one of them. (Id.). Monahan also told the member, that if your being rolled

hadnt happened at the time Lydon was rolled, things could have been different.

(Id.).



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On or around February 2012, Lydon filed a complaint with the National

Labor Relations Board objecting to the Memo, but this complaint was denied as

well. (Id. 3.21). The only finding of the NLRB was the Local 103 was a non-

exclusive hiring hall. (Id.). This determination allowed the NLRB to avoid

making further findings or any reference, acknowledgment, or explanation of why

the requirements stated in the Pattern Agreement, had, or had not, been violated.

(Id.).

SUMMARY OF THE ARGUMENT

The district court made several grievous errors when it dismissed all of

Lydons claims for relief.

First, the district court abused its discretion when it failed to consider

documents submitted by Lydon in opposition to Local 103s Motion to Dismiss,

Or In the Alternative, For Summary Judgment.

Second, the district court erred when it dismissed Lydons Labor

Management Relations Act claim for failure to state a plausible claim of relief.

Lydon adequately alleged a plausible claim for relief where he alleged that Local

103 discriminated against Lydon in Local 103s operation of its hiring hall.

Lydons LMRA claim is supported by both law and fact, and requires that this

Court reverse the district courts Order dismissing this claim.



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Third, the district court erred when it dismissed Lydons Labor Management

Relations Disclosure Act claim for failure to state a plausible claim of relief.

Lydon adequately alleged a plausible claim for improper discipline in violation of

the Act. Lydons LMRDA claim is supported by both law and fact, and requires

that this Court reverse the district courts Order dismissing this claim.

Finally, the district court erred when it dismissed Lydons claim for breach

of duty of fair representation for failure to state a plausible claim of relief. Lydon

adequately alleged a plausible claim for relief.

Accordingly, the district courts Order must be reversed, and Lydons claims

for relief must be remanded for discovery.

ARGUMENT

The district court erred when it granted Local 103s motion to dismiss. A

motion to dismiss for failure to state a claim upon which relief may be granted,

Fed. R. Civ. P. 12(b)(6), requires accepting as true all well-pleaded facts in the

complaint and drawing all reasonable inferences in the plaintiffs' favor. Sutliffe v.

Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir. 2009) (citation omitted). A partys

Rule 12(b)(6) motion to dismiss challenges the ability of an opponent's complaint

to state a claim. The Supreme Court adopted the view that the complaint must

allege facts that raise a right to relief above the speculative level. Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). That means that a



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plaintiff's obligation to provide the grounds of his entitlement to relief requires

more than labels and conclusions--a formulaic recitation of the elements of a cause

of action will not do. Id.at 555 (internal quotation marks, citation and alteration

omitted). The factual allegations in the complaint must, accordingly, be specific

enough to cross the line from conceivable to plausible. Id.at 570.

A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662 (2009) (citation omitted).

Determining whether a complaint states a plausible claim for relief [is] ... a

context-specific task that requires the reviewing court to draw on its judicial

experience and common sense. Id.at 663-64. (citation omitted). A court does not

have to accept as true allegations in a complaint that are legal conclusions. Id.at

678-79. However, [w]hen there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they plausibly give rise to

an entitlement to relief. Id.at 679.

In short, the district court erred in dismissing Lydons claims for relief.



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I. The District Court Abused its Discretion When it Failed toConsider the Documents Lydon Submitted In Opposition to

Local 103s Motion to Dismiss, Or In the Alternative, For

Summary Judgment.

The district court should have considered the documents Lydon submitted in

opposition to Local 103s Motion to Dismiss, Or In The Alternative, For

Summary Judgment. Ordinarily, on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court is limited to considering facts and documents that are part of

or incorporated into the complaint. Giragosian v. Ryan,547 F.3d 59, 65 (1st Cir.

2008) (quoting TransSpec Truck Serv., Inc. v. Caterpillar Inc.,524 F.3d 315, 321

(1st Cir. 2008)). These limitations, however, are not absolute. A district court

may also consider documents incorporated by reference in [the complaint],

matters of public record, and other matters susceptible to judicial notice. Id.

(quotingIn re Colonial Mortgage Bankers Corp.,324 F.3d 12, 20 (1st Cir. 2003)).

The courts failure to incorporate these documents, or to delay ruling on the motion

to dismiss likely constitutes an abuse of discretion. See, Giannetta v. Boucher, 981

F.2d 1245 n.2 (1st Cir. 1992).

Here, Lydon submitted numerous declarations, documents, and other

otherwise useful information in opposition to Local 103s Motion to Dismiss, Or

In The Alternative, For Summary Judgment. Lydon contends this amounted to an

abuse of the courts discretion, and warrants reversal of the district courts Order

dismissing all of Lydons claims.



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II. Lydons Second Amended Complaint States a Claim for Violation

of the LMRA.

Initially, the district court incorrectly determined that Lydons Second

Amended Complaint did not state a claim for violation of the Labor Management

Relations Act (LMRA). (A.179-180 (A.196-197); Order at 9-10). Lydons

allegations do give rise to a plausible entitlement to relief.

The LMRA creates a federal cause of action for claims against a labor

organization. 29 U.S.C. 185. Sections 158(a),(b) define impermissible acts of

employers and labor organizations that give rise to unfair labor practices. Id. In

particular a labor organization may not:

. . . cause or attempt to cause an employer to discriminate against an

employee in violation of subsection (a)(3) of this section or to

discriminate against an employee with respect to whom membership

in such organization has been denied or terminated on some ground

other than his failure to tender the periodic dues and the initiation fees

uniformly required as a condition of acquiring or retaining

membership.

Id. 158(b)(2).

Subsection 158(a)(3) prohibits discrimination with regard to hire or tenure of

employment. Id. These sections are often read in conjunction, especially as in the

case here, where the labor organization is alleged to have discriminated against

Lydon on hiring hall referralscausing Lydons inability to procure gainful

employment through the properly established chronological system. E.g.,

Breininger v. Sheet Metal Workers International Association Local Union No. 6,



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493 U.S. 67, 74 (1989) (a statutory bargaining representative and an employer

also respectively violate Section 8(b)(2) and 8(a)(3) when, for arbitrary or

irrelevant reasons or upon the basis of an unfair classification, the union attempts

to cause or does cause an employer to derogate the employment status of an

employee.) (citations omitted). If a union does wield additional power in a

hiring hall by assuming the employer's role, its responsibility to exercise that

power fairly increases rather than decreases. Id.at 89. Discrimination in hiring

hall referrals constitutes an unfair labor practice under 8(b)(1)(A) and 8(b)(2) of

the NLRA. Farmer v. United Brotherhood of Carpenters and Joiners of America,

Local 25, 430 U.S. 290, 303 n.11 (1977) (citations omitted). Furthermore, a

presumption of illegality exists under section 8(b)(2) that arises whenever an

employee loses his job or hiring opportunity as a result of a unions conduct in the

operation of a hiring hall. Radio-Electronics Officers Union v. NLRB, 16 F.3d

1280, 1284 (D.C. Cir. 1994), cert. denied, 513 U.S. 866 (1994).

Here, the district court made two incorrect assumptions in forming its basis

to dismiss Lydons LMRA claim. (A.178-180 (A.195-197); Order at 8-10). First,

the district court assumed that a plaintiff cannot state a claim for a violation of

158(a), 158(b), unless the violation is alleged to be in between union and nonunion

members. (A.179 (A.196); Order at 9). Second, the district court assumed that

Lydon did not cite any caselaw or language in the statute that stated discrimination



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between union members who utilize an invalid Solicitation System gives rise to a

violation of the statute. (A.179-180 (A.196-197); Order at 9-10). Thus, in the

courts opinion, Lydon did not properly allege an unfair labor practices claim.

(Id.). The district courts mistaken application of the statute and caselaw warrant

reversal of its order dismissing Lydons LMRA claim.

a. District Courts First LMRA Error: a labor organizationcannot discriminate among its own members.

The district courts first assumption that Lydon may maintain an action

under 158 only if he alleges discrimination between union and nonunion

members is unsupported by caselaw.2

The crux of the district courts position is that Lydons complaint fails to

state a claim because an action under 158(a)(3) and (b)(2) must allege

discrimination based upon union affiliation. (A.179 (A.196); Order at 9) (citing

Courier-Citizen Co. v. Boston Electrotypers Union No. 11, Intern. Printing &

Graphic Communications Union of North America, 702 F.2d 273, 278 (1st Cir.

1983)). In fact, the district court explicitly states: [s]ection 158(b)(2) prohibits

discrimination only in so faras it relates to distinguish between employees who

are union members and those who are not. (A.179 (A.196)) (emphasis added).

2The District Court also makes the erroneous presumption that 158(a) is irrelevant

to this discussion. This is false. As mentioned supra, where the discrimination

causes or attempts to cause a union member from employment, subsection (a)(3) is

relevant.



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Discrimination between union and nonunion members, however, is merely one of

many ways in which a labor organization violates that section.

[A] union violates Sec. 8(b)(2) of the Act, 29 U.S.C. Sec. 158(b)(2),

when it causes an employer to discriminate against employees on

arbitrary, hostile or bad faith grounds. Thus, a union may not, without

legitimate purpose, take action favoring some of its members at the

expense of others. In particular, a union may not neglect the interests

of a membership minority solely to advantage the membership

majority. Union members are to be accorded equal rights, not

subjugated arbitrarily to the desires of a stronger, more politically

favored group.

Teamsters Local Union No. 42 v. N.L.R.B., 825 F.2d 608, 611 (1st Cir. 1987)

(internal citations and quotation marks omitted).

In Teamsters, the Local sought to set aside a finding of the NLRB, which

determined that the Local had committed an unfair labor practice in violation of

158 (b)(1)(A),(b)(2). Id.at 609. The Locals violation occurred while the union

was dealing with the consolidation of plant operations for two labor plants. Id.at

609-10. During this process, there was some dispute as to how seniority would be

calculated for the union members moving over from the closing plant (Plant A)

to the remaining plant (Plant B). Id.at 610. Despite the ongoing dispute, Plant

A joined Plant Bs union, and signed a virtually identical CBAthough lacking a

provision dealing with seniority. Id. Following Plant As joining the union, the

employer changed its mind regarding consolidation, and instead decided to build a

new plant with two shifts. Id. The union refused to negotiate seniority rights



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involving Plant As employees, and Plant Bs employees received the favorable

shifts due to greater seniority rights. Id.at 611. An unfair labor practice charge

followed. Id.

The reviewing court considered whether the Local, by rejecting

consideration of any dovetailing seniority system at the new plant, violated its

duties owed to Plant As union members under 158(b)(1)(A), (b)(2). Id.at 612.

The court reasoned as follows: the represented employees of Plant A and

Plant B formed one new unit at the time they moved to the new plant. Id. Since

both groups had separate bargaining agreements governing their work at their

respective location, and the CBAs did not include terms regarding a new location,

making the issue of seniority relevant. Id. Based on the refusal to negotiate the

seniority system, union officials clearly favored Plant Bs union members (who

had seniority based on longevity of union membership) to the detriment of Plant

As union members. Id. Thus, the union discriminat[ed] in assigning seniority

(i.e., disparate treatment based solely upon longevity in union membership). Id.

at 613. By favoring one union group over another union group, Local committed

an unfair labor practice. Id.at 614.

This principle is echoed outside of the First Circuit, where other courts have

also found that a labor organization commits an unfair labor practice when it

discriminates among members of its organization.



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For example, in Plumbers and Pipe Fitters Local Union No. 32 v. N.L.R.B.,

the court upheld a Board determination that a labor unions operation of a hiring

hall/referral system constituted an unfair labor practice. 50 F.3d 29, 34 (D.C. Cir.

1995).

First, the Locals utilization of a word of mouth referral system

circumvented the point of the hiring hall system. Id.at 34. Through its flawed

operation of that system, the Local maintained an applicant list closed to anyone

unknown by union officials, thereby arbitrarily excluding two fee-paying

applicants who were seeking work through the hiring hall. Id.at 34. The court

found that this system violated the fiduciary duty to treat applicants even handedly,

to inform all potential applicants of relevant hiring hall rules, and to allow

qualified individuals to register for work. Id. Second, the operation of the hiring

hall constituted an unfair labor practice because it referred employees to the

employers without objective standards. Id.at 34. Since there was no objective

criteria, and the fact that the two members were in fact excluded, the record

demonstrated that at best a subjective system was used to select individuals for

employment that discriminated in favor of associates of [hiring hall officials].

Id. The court also rejected the unions contention that the record contained no

evidence that it favored its own employees. Id. The court explained:

[E]vidence of a specific intent to discriminate on the basis of union

membership or activity is not required to find an unfair labor practice.



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When considering violations of section 8(b)(2), we have recognized

that conduct by the union which causes firing or prevents hiring

demonstrates the union's power so dramatically that its illegality is

presumed. The union's argument also fails to recognize that the

General Counsel's complaint did not allege specific discrimination in

favor of the union's own members or against Harper and Flowers, but

rather that the arbitrary nature of the selection process breached the

Union's duty of fair representation to all qualified applicants. ALJ

Decision at 1138. The ALJ concluded that Local 32s conduct

violated section 8(b)(2) because its subjective operation of the hiring

hall ultimately resulted in the employer's refusal to hire Harper,

Flowers or other unknown rig welders seeking referral. Id.

Plumbers, 50 F.3d at 34-35.

Thus, a labor organization may be liable for commission of an unfair

labor practice when it discriminates in the operation of a hiring hall, where

the union officials operating the hiring hall favor their associates over newer

members of the union.

In yet another case, a court upheld the determination of an unfair labor

practice where the labor organization prevented certain union members from

working. National Labor Relations Board v. LOCAL 542, ETC., 255 F.2d 703,

705 (3rd Cir. 1958). In that case, the court considered a finding from the NLRB

that the union had discriminated against its members when it caused their

termination or inability to obtain positions for which they were under or

overqualified. Id.at 704. The court affirmed that this conduct amounted to

causing discrimination in employment which tended to encourage membership

in the respondent union. Id at 705.



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Thus, the caselaw is abundantly clear that a plaintiff may assert a claim for

violation of 158(a),(b) where the labor organization operates a hiring hall, and

in the operation of that hiring hall one group of members is prevented from

working and the other group is allowed to work.

Here, Lydon has alleged that Local committed an unfair labor practice

through its adoption and application of the MOU, which put in place a Solicitation

System. (Pl.s Second Am. Compl. 4.1-.5). Lydon alleged that certain union

members possess an advantage to obtain work over other union members. (Id.

3.6). The MOU apparently allowed an exception to the CBA, so that union

members could solicit employers for employment regardless of their position on

the chronological list. (Id. 3.15). Local may then endorse the soliciting member

of the union, so as to circumvent the chronological list. (Id.). This practice is

discriminatory and detrimental to the non-soliciting members who utilize the

chronological list in accordance with the CBA and the International Pattern

Agreement. (Id. 4.2).

Thus, Lydon has alleged Local discriminated against him and others who

use the chronological list. Like the plaintiffs in Teamsters, Plumbers, andLocal

542. Lydon was treated differently than other members of his union. This

differential treatment arises to the standard of discrimination under the statute, and

is an unfair labor practice. SeeTeamsters, 825 F.2d at 611; Plumbers, 50 F.3d at



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34-35;Local 542, 255 F.2d at 705. The type of discrimination alleged is exactly

the type of behavior Congress sought to prohibit. Under the standards for a motion

to dismiss, Lydon adequately pled a claim that has a plausibly which will lead to

relief. Accordingly, the district courts order dismissing Lydons first claim for

relief must be reversed.

b. District Courts Second Error: Implementation of theSolicitation System Is an Unfair Labor Practice.

A secondary reasoning for the district courts dismissal of Lydons unfair

labor practices claim is found in the its discussion of the Solicitation System itself.

(A.179-180 (A.196-197); Order at 9-10). Its argument is based on the belief that

there is nothing in the statute or caselaw that suggests that the adoption and

implementation of the Solicitation System is unlawful. (A.179 (A.196); Order, 9).

The district courts only case citation is toLocal 357, Intl Broth. of

Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. NLRB, and is

confusing at best. (A.180 (A.197); Order at 10) (citing 365 U.S. 667, 676 (1961)).

Local 357addressed whether a provision allowing a hiring hall was unlawfulper

se. Id.at 670. In that case, a union member who had used the hiring hall gained

casual employment with an employer who had signed the CBA. Id.at 669. The

union caused the members discharge from employer on the basis that he was not

referred through the hiring hall agreement. Id. The court discussed that Congress

had not outlawed hiring halls, and that unions should be able to operate them. Id.



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at 673. Nevertheless, discussion in the case made it clear that discriminationin the

hiring hall will not be allowed. Id.at 674-75 (emphasis added). Thus, the court

concluded the Board has no power to compel the hiring hall be included or

excluded in a CBA. Id.at 676. Reliance on and citation to this case confuses the

allegations in Lydons complaint, and distracts from the relevant issues at hand.

Lydons claim is not a dispute as to whether the hiring hall should be

included or excluded from the collective bargaining agreement. See generally

A.22 (Pl.s Second Am. Compl.). Lydon does not advance an argument that the

hiring hall scheme in general isper seillegal. (Id.). Furthermore, there is no

allegation that the MOU is a component of the CBA or valid in any respect. E.g.

(id. 3.5, 3.16). To the contrary, Lydon alleges the MOU is invalid for failure to

comply with the IBEWs Pattern Agreement. (Id. 3.2-.16). The exclusive

hiring hall is already a component of the CBA. (Id. 3.5). Lydon, however, does

allege that Locals hiring hall is discriminatory. (Id. 4.2, 5.6, 6.3).

An MOU, or any union conduct for that matter, that causes discrimination

among union members is a violation of the statute. SeeTeamsters, 825 F.2d at

611; Plumbers, 50 F.3d at 34-35;Local 542, 255 F.2d at 705. Discrimination is

absolutely relevant to the hiring hall scheme, even if federal statutes do not

establish a pervasive regulatory scheme. (A.180 (A.197); Order at 10) (citing

Local 357, 365 U.S. at 676). There are literally hundreds, if not thousands, of



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cases which specifically hold that a union who operates a hiring hall cannot

discriminate. E.g. Teamsters, 825 F.2d at 611; Plumbers, 50 F.3d at 34-35;Local

542, 255 F.2d at 705. EvenLocal 357, upon which the district court relies,

acknowledges discrimination has no place in a hiring hall. 365 U.S. at 674-75.

This is the most basic tenant of the hiring hall scheme because people assume that

a hiring hall is discriminatory in and of itself.

In order to survive a motion to dismiss, Lydon need only allege sufficient

facts to make a plausible entitlement for relief. Ashcroft, 556 U.S. at 662. Here,

Lydon has alleged a system employed by the Local discriminated against him in

the operation of the hiring hall--discrimination through preventing him and other

employees from gaining work through the chronological system authorized by the

Collective Bargaining Agreement. (A.22, Pl.s Second Am. Compl.). Moreover,

Lydon was dropped to the bottom of the list through no fault of his own. (Id. 5.2-

.6). The Union made it known that Lydon and others were undesirables needed

to be rolled-off the book. (Id. 5.6). As such, Lydon, as a member of a lesser-

preferred or undesirable faction of the union, was actually denied work through

the Unions operation of the Solicitation System. (Id. 4.2-.3, 5.4-.7, 6.2-.4).

Even if the Court does not infer that Lydon was actually denied work, it can infer

that the Solicitation System was an attempt to cause employers not to hire Lydon

or other undesirables. See(id. 5.6).



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In sum, the court completely misses Lydons point. The Solicitation System

itself is invalid. Local 103 has yielded its power to allow members to bypass the

valid chronological list. Because members who use the Solicitation System get out

to work quicker than the chronological members, in essence, it allows solicitation

members to get work from employers that use a call for manpower ahead of

members already waiting job calls in the chronological system. In other words, it

allows soliciting members to get work from employer that should be made

available to chronological members as well.

Finally, the court makes the assumption that the MOU is valid. (A.180

A.197); Order at 10). There is no allegation, and certainly no evidence, that the

International union approves the Solicitation Scheme being operated by Local. See

(Pl.s Second Am. Compl.). Accordingly, Lydons complaint plausibly states a

claim for relief insofar that Local 103s adoption of the MOU and implementation

of a Solicitation System act to discriminate against Lydon. Therefore, the district

courts order dismissing Lydons first claim for relief must be reversed.



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III. Lydons Second Amended Complaint States a Claim for

Violation of the LMRDA.

The district court also erred when it dismissed Lydons second claim for

relief: a violation of the LMRDA. (A.181-183 (A.198-200); Order at 11-13).

Lydon alleged that he was disciplined for engaging in protected activity. This

discipline was union sanctioned, and amounts to a violation of the statute. Lydon

stated a plausible claim for relief.

Labor organizations are prohibited from disciplining a union member for

engaging in a protected activity. 29 U.S.C. 401 et seq. Protected activities may

be found under 411 and 529. Rights under the LMRDA include equal rights

among union members, protections for freedom of speech and assembly,

protections in dues, initiation fees, and assessments, protection of the right to sue,

and safeguards against improper disciplinary action. Id. 411. These provisions

make it unlawful for a union to fin[e], suspen[d], expe[l], or otherwise discipline

any of its members for exercising rights secured under the LMRDA. Breininger,

493 U.S. at 90 (citations omitted).

Relevant to this discussion is the phrase otherwise discipline. (A.181

(A.198); Order at 11). The traditional thought is that otherwise discipline only

includes acts resulting from an established disciplinary process of the union acting

as a collective entity to enforce its rules. Breininger, 493 U.S. at 91-92. The

Breiningercourt, however, also made it explicitly clear that otherwise discipline



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may encompass actions taken outside official union proceedings. Id.at 92 n.15.3

Thus, otherwise discipline may include novel forms of punishmentincluding

the denial of referrals in the hiring hall context. Id.

In dismissing Lydons second claim for relief the district court made an

erroneous determination that Lydon at most alleged ad hocdiscipline, which does

not qualify as otherwise discipline under the statute. (A.183 (A.200); Order at

13). In so doing, the district court primarily relies onBreiningerandLinnane v.

Gen. Elec. Co.to arrive at its conclusion the Lydons allegations did not allege

discipline of the official punitive quality envisioned by the statute. (A.182-183

(A.199-200); Order at 12-13). The allegations in those cases are distinguished

3 In full, footnote 15 reads:

We do not imply that discipline may be defined solely by the

type of punishment involved, or that a union might be able tocircumvent 101(a)(5) and 609 by developing novel forms of

penalties different from fines, suspensions, or expulsions. Even

respondent acknowledges that a suspension of job referrals

through the hiring hall could qualify as discipline if it were

imposed as a sentence on an individual by a union in order to

punish a violation of union rules. Contrary to Justice Stevens

suggestion,post,at 99-100, and nn. 7, 8, we do not hold that

discipline can result only from formal proceedings, as

opposed to informal or summary ones. We note only that

Congress reference to punishments typically imposed by the

union as an entity through established procedures indicates that

Congress meant discipline to signify penalties applied by the

union in its official capacity rather than ad hoc retaliation by

individual union officers.

Breininger, 493 U.S. at 92, n.15.



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from the instant action, and while the law cited within is useful, the factual

analogies are insufficient to dismiss Lydons second claim for relief.

Breiningerconcerned a case where an aggrieved union member alleged that

the union violated his rights under the LMRDA when it failed to refer him to

certain jobs. 493 U.S. at 71-72. Ultimately, the court determined that the union

members complaint did not sufficiently allege a violation of the LMRDA, because

he failed to allege the union acted in its official capacity in discipline the member.

Id.at 94.

In the instant case, petitioner alleged only that the union business

manager and business agent failed to refer him for employment

because he supported one of their political rivals. He did not allege

acts by the union amounting to discipline within the meaning of the

statute. According to his complaint, he was the victim of the personal

vendettas of two union officers. The opprobrium of the union as an

entity, however, was not visited upon petitioner. He was not punished

by any tribunal, nor was he the subject of any proceedings convened

by respondent. In sum, petitioner has not alleged a violation of

101(a)(5) and 609, and the Court of Appeals correctly dismissed hisclaim under the LMRDA.

Breininger, 493 U.S. at 94.

Accordingly, the members complaint lacked reference to the type of

discipline envisioned by the statute. Id.

InLinnane v. Gen. Elec. Co., an aggrieved union member challenged the

dismissal of his complaint against his union for a violation of the LMRDA. 948

F.2d 69, 69 (1st Cir. 1991). According to his complaint, Linnane was an employee



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of General Electric Company (GE) and a member of International Union of

Electronic, Electrical, Technical, Salaried and Machine Workers, Local 201 (the

Union). Id.at 70. Linnane regularly accused the Union of nepotism,

discrimination against women, and lack of union presence at one of GEs facilities.

Id. Union officials told Linnane to mind his own business. Id. Later, Linnane

injured his knee and was discharged by GE. Id. Linnane was told by union

officials that his grievance was being processed, and to apply for unemployment.

Id. Subsequently, Linnane learned that his union had reached an agreement with

GE to withdraw the grievance in exchange for GEs non-opposition to Linnane

unemployment application. Id. Linnane filed a complaint with the NLRB that

ultimately went nowhere. Id.

Linnane filed a complaint against the Union for disciplining him under the

LMRDA when he engaged in his free speech rights granted under the statute. Id.

Respondent (defendant below) sought to dismiss the Linnanes complaint for

failure to state a claim under the LMRDA. Id.

The court reviewedBreiningerand concluded that the Linnanes complaint

did not allege, or could otherwise be inferred from, that the Union had acted

formally to discipline the Linnane. Id.at 72. To be sure, the Linnane in that case

merely alleged that the deliberate misrepresentations of the Union regarding the

status of his grievance constituted discipline formally sanctioned by the union



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body. Id.at 71-72. Thus, the court was persuaded that it was the nature of the

Unions action that was controllingrather than the plaintiffs characterization of

who was involved. Id.at 72. Thus, [p]laintiff has failed to allege, much less

demonstrate, that the Union as a body in a proceeding formal or informal,

deliberately voted to misrepresent the status of his grievance. Id. Accordingly,

theLinnanecourt rejected plaintiffs complaint as failing to align with the

principles inBreininger, and not within the definition of discipline contained in

411 and 529. Linnane, 948 F.2d at 72.

Admittedly,BreiningerandLinnanedo stand for the proposition that

allegations of ad hocor sub rosadiscipline do state a claim for violation of the

LMRDA. The allegations in Lydons complaint, however, are distinguished from

those cases upon which the district court relies. Importantly, there is no allegation,

and no claim, against any union officials, which the district court appears to

assume. Lydons claims are against Local 103, of which Monahan is an agent.

There is no allegation of ad hocor sub rosadiscipline.

First, Lydons Second Amended Complaint clearly alleges that he engaged

in protected activities. See29 U.S.C. 411. Lydons complaint alleged that he

objected to Locals actions many times. (A.22, Pl.s Second Am. Compl. 3.17,

3.19-.21). First, in April 2010, Lydon requested a copy of the MOUa document

that still remains unavailable to the rank and file of the union. (Id. 3.14, 3.17).



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Second, Lydon informed the International Union of the Local chapters violation

of Internationals Pattern Agreement, as well as the CBA between Local and

Boston NECA, which contains a provision that the hiring hall is exclusive. (Id.

3.19-.20). Third, Lydon removed himself from Boston NECAs Drug Free

Program in order to obtain a long-term construction job he was in a favorable

position to receive. (Id. 5.2). But, for reasons unknown, Local did not receive

the information of Lydon having withdrawn from the Drug Free Program. (Id.

5.3). These allegations also demonstrate Lydons political differences existed with

the Local on the whole--not just any individual union officer.

Next, Lydon alleged that he was disciplined within the meaning of the

statute. A loss of job referrals qualifies as discipline. Breininger, 493 U.S. at 92

n.15. The Solicitation System operated to deny members of job referrals. (A.22,

Pl.s Second Am. Compl. 3.6-.7). Additionally, the placement of Lydon at the

bottom of the list for a third refusal cost Lydon job referrals. (Id. 3.6, 5.4).

Monahan, acting on behalf of the Local, denied Lydons appeal regarding his third

refusal even though Lydon was ineligible to refuse any Drug Free Program

referrals at the time. (Id. 5.4-.5). Monahan was but one member of an entire

union tribunal, also known as the Appeals Committee, that brought down the full

weight of Local 103s power. Thus, Lydon was disciplined not by an ad hoc

decision, but by the decision of Local 103 on the whole. Local 103s discipline



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was actually manifested through the Appeals Committees decision. Accordingly,

these novel forms of punishment constituted discipline.

Furthermore, Lydons discipline carried the opprobrium of the union. See,

Breininger, 493 U.S. at 99.

First, the Local officials adopted and implemented MOU that condoned the

Locals impermissible use of the Solicitation System. (A.22, Pl.s Second Am.

Compl. 3.14-.16). Lydon alleges that the Local (not any individual union officer)

was ridding itself of undesirables, that Lydon was among them, and this was the

reason that the solicitation policy was in place. (Id. 5.6). The alleged

conversation between Monahan and another Local member suggests that Monahan

was doing the bidding of the Local. See(id.). The only reasonable inference is

that the Solicitation System was a tool of the Local to control job referrals--not

Monahans own personal vendetta tool. Monahan could not have implemented the

MOU and the Solicitation System by himself. Moreover, Monahan (as agent of the

Local) upheld the application of the refusal rule to Lydon in order to ensure Lydon

was placed at the bottom of the chronological list. When Lydons appeal made it

to the panel, it was a foregone conclusion Lydons appeal would be rejected. The

totality of these allegations demonstrate Local 103s steps to discipline the

undesirables, like Lydon, for engaging in protected activities.



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Finally, Lydon has alleged that there is a causal connection from Lydons

complaints about the Solicitation System, his withdrawal from the Drug Free

Program and his loss of referrals and placement at the bottom of the chronological

list. (Id. 3.17-.21, 5.2-.7). The Union on the whole endorsed this discipline in

order to punish Lydon for engaging in his rights protected by the LMRDA. See

(id.). This discipline carries the official quality contemplated byBreiningerand

Linnane. Therefore, Local 103 officially acted to punish Lydon for engaging in

protected activities.

In any event, it is much too early for the court to make the determination that

Lydon has alleged at most an ad hoc orsub rosadiscrimination. This would be

more appropriate during summary judgment proceedings, after discovery, where

evidence could be presented as to the officiality of Monahans actions or the

Appeals Boards process. At this stage, however, Lydon has made a plausible

claim for violation of his rights under the LMRDA.

Thus, Lydons Second Amended Complaint makes a clear claim for

violation of the LMRDA. First, Lydon alleged that he engaged in protected

activities. Second, Lydon was disciplined for speaking out against union

management, withdrawing from the Drug Free Program, and allegedly violating

the work refusal rule. He was denied referrals through the hiring hall and

placement at the bottom of the chronological list. Third, Lydons complaint does



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not allege this was ad hocretaliation, but instead was part of a union directive to

roll off the undesirables in the union. There is no allegation that Monahan had a

personal vendetta against Lydon or acted within his personal capacity to discipline

Lydon. To the contrary, Monahan, his agents, and the Appeals Committee

advanced the interests of the Local, thereby removing inference of ad hoc or sub

rosa retaliation. The disciplinary action was imposed by the union in its official

capacity by enacting the Solicitation System and placement of Lydon on the

bottom of the chronological referral list. These novel forms of discipline, as

Breiningerenvisioned took place. This Court is in the position to stop union abuse

of its members by recognizing the plausibility, and likely success, of this claim.

Accordingly, Lydons Second Amended Complaint states a plausible

violation of the LMRDA, and the district courts Order dismissing this claim must

be reversed.

IV. Lydons Second Amended Complaint States a Claim for

Violation of the Duty of Fair Representation.

The district court erred when it dismissed Lydons third claim for relief: a

violation of the unions duty of fair representation. (A.183-187 (A.200-204);

Order at 13-17). Lydons Second Amended Complaint alleges a plausible claim

for relief. Therefore, the district courts order dismissing Lydons third claim must

also be reversed.



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A labor organization has a statutory duty of fair representation. 29 U.S.C.

151 et seq. This duty is an integral one, and requires the labor organization to

serve the interests of all members without hostility or discrimination toward any, to

exercise its discretion with complete good faith and honesty, and to avoid arbitrary

conduct. Vaca v. Sipes,386 U.S. 171, 177 (1967); see alsoSteele v. Louisville &

Nashville R. Co.,323 U.S. 192, 203 (1944);Breininger, 493 U.S. at 73. This duty

of fair representation applies to all union activity, including contract

negotiations. Vaca, 386 U.S. at 190. By its selection as bargaining

representative, [the union] has become the agent of all the employees, charged with

the responsibility of representing their interests fairly and impartially. Humphrey

v. Moore, 375 U.S. 335, 342 (1964).

A labor organization breaches its duty of fair representation when it acts

towards its members in a manner that is arbitrary, discriminatory, or in bad faith.

Id. Furthermore, a union is subject to the duty of fair representation in its

operation of a hiring-hall, and must exercise its hiring authority in a nonarbitrary

and nondiscriminatory fashion. Breininger, 493 U.S. at 88. A union is

presumed to have breached its duty of fair representation if, in the administration

of a hiring hall agreement, it refuses to refer a member who is eligible under that

agreement. NLRB v. Intl Bhd. of Elec. Workers, Local Union 16, 425 F.3d 1035,

1040 (7th Cir. 2005).



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A labor organizations conduct is arbitrary where it is outside the wide

range of reasonableness. Air Line Pilots Association, International v. ONeill,

499 U.S. 65, 78 (1991). The Vacastandard extends to a union its negotiation

capacity. Id.at 77. Thus, a union breaches its duty in the collective bargaining

process only if it can be fairly characterized as so far outside a wide range of

reasonableness. Id.at 78 (citation omitted). A wide range of reasonableness

must be allowed a statutory bargaining representative in serving the unit it

represents, subject always to complete good faith and honesty of purpose in the

exercise of its discretion. Id.at 75-76. (citation omitted). In other words, a union

breaches its duty when its product is wholly irrational or arbitrary. Id. A unions

conduct can be classified as arbitrary only when it is irrational, when it is without a

rational basis or explanation. Marquez v Screen Actors, 525 U.S. 33, 46 (1998).

Unfortunately, the district court again misinterprets the law and Lydons

allegations in dismissing Lydons third claim for relief. The basis for the district

courts reasoning is essentially twofold. First, the court determined that insofar

Lydon alleged that the operation of the Solicitation System and the adoption of the

MOU stated a claim for breach of duty fair representation in negotiating the CBA,

Lydon failed to demonstrate Locals negotiations fell outside the wide range of

reasonableness. (A.185 (A.202); Order at 15). Second, the district court

determined that Lydon failed to demonstrate that a union breaches its duty of fair



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representation by failing to adhere to the rules of the international union. (A.186

(A.203); Order at 16). An additional form of dismissal came from the district

courts adoption of an obscure NLRB opinion, which the district court used for the

proposition that a union owes no duty of fair representation in the non-exclusive

hiring hall context. (A.186-187 (A.203-204); Order at 16-17).

On the whole, the district court concluded that Lydon did not suggest the

Solicitation System is irrational or arbitrary, and thus within the wide range of

reasonableness afforded to unions. (A.186 (A.203); Order at 16). The court

reasoned, the system could not be irrational or arbitrary when it was open to all

members and the system was not amended when the newest CBA was adopted.

(Id.). Additionally, the court reasoned that Lydon was harmed by the three refusal

rule--not the Solicitation System. (Id.). The district courts reasoning is

unpersuasive, incorrect, and must be disregarded.

a. Negotiation of the Solicitation System Was Arbitrary,

Dishonest, and in Bad Faith, and Therefore Does not fall

into Wide Range of Reasonableness Afforded to Unions.

Lydons complaint alleges the Solicitation System: was never properly put

into place; is in conflict with international rules; allows for the bypass of the

chronological system; resulted in eligible members not being referred work; and

was a mechanism for the Local to discriminate against undesirables. (A.22, Pl.s

Second Am. Compl.). More importantly, Lydon expressly alleges that Locals



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arbitrary conduct in violating his rights under the LMRA and LMRDA breach

the Locals duty of fair representation. (Id. 6.2). Each one of those claims

reference Solicitation System and its impact. (Id. 4.2-.5 5.6). Moreover,

Lydons allegation that the Solicitation System was in place to roll off

undesirables like Lydon demonstrates that Local was acting contrary to its duty

of good faith and honesty in bargaining. (Id. 5.6); Vaca, 386 U.S. at 177. As

such, Local is alleged to have breached its duty to serve the interests of all

members without hostility or discrimination. Vaca, 386 U.S. at 177.

Accordingly, Lydons Second Amended Complaint adequately alleges that

Local 103 breached its duty of fair representation when it negotiated, bargained

for, and/or implemented a Solicitation System that discriminated among Locals

members. Locals conduct was arbitrary, irrational, discriminatory, and in bad

faith. Under these circumstances, Local cannot be afforded a wide range of

reasonableness in implementing the Solicitation System, because the System

exists to discriminate among union members. This can hardly be said to be with

rational basis or valid explanation.

b. A Union Breaches its Duty Of Fair Representation

When it Acts Arbitrarily, Discriminatorily, or in Bad FaithRegardless of the Comparative Source.

The district court again concludes that Lydons apparent lack of

demonstration that a union breaches its duty of fair representation when it operates



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contrary to the orders its international union. (A.186 (A.203); Order at 16). The

district court unnecessarily narrows the issue.

Here, the failure, and outright disregard for the International Rules, is

arbitrary. Local is a chartered member of the IBEW. (A.22,Pl.s Second Am.

Compl. 3.1). As such, Local 103 has agreed to follow the Internationals rules,

regulations, and procedures in administering its hiring hall. (Id. 3.2). Local 103

violated the IBEWs rules by operating a Solicitation System contrary to the

IBEWs Pattern Agreement. (Id. 3.10-.13). As the MOU has never been

approved by the International, and the operation of a solicitation system has the

effect of treating some union members differently than other union members. (Id.

3.16). By definition, this is a breach of the duty of fair representation.

c. A Union Breaches Its Duty of Fair Representation When

it Operates a Hiring Hall in a Discriminatory Fashion.

Finally, Carpenters Local 357, 303 N.L.R.B. 41 (1991), cited by the district

court, is inapposite here.4 (A.187 (A.204); Order at 17). The court utilized that

case at the defendants bequest, for the proposition that a union operating a non-

exclusive hiring hall owes no duty of fair representation. (Id.). Yet again, the

court impermissibly relies on a single case, without comparison to the instant case,

4Lydon is unable to find another case in any jurisdiction citing to Carpenters

Local 537. The amount of weight the district court afforded to this decision is

astounding. (A.187 (A.204); Order at 17) (The reasoning of the NLRB appears

sound and the Court will apply it here.).



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and accepts it as the law of the land. The Carpenters Localdecision must be

rejected for a variety of reasons.

Here, Lydons alleges that the CBA provides that Local 103 is an exclusive

hiring hall, the MOU authorizing the Solicitation System is invalid, the

characterization of Local 103 as a non-exclusive hiring hall is improper, and the

IBEW still has not taken a position on the MOU which fundamentally alters the

structure of the hiring hall. (A.22, Pl.s Second Am. Compl. 3.5-.7, 3.15-.16,

3.22, 4.2-.3). Moreover, Local 103 does have the power to put jobs out of the

reach of workers. (Id. 3.5, 3.15, 4.2, 5.6, 6.3). Under the Solicitation System,

members were able to bypass the chronological list with endorsement from the

Local 103. (Id. 3.15). Those who correctly followed the International Pattern

Agreement and the CBA were treated differently than other members who solicited

employment with approval of the Local 103 brass. (Id.). There can be no dispute

that the function of the Local is a division among the union members. (Id. 4.2,

5.6, 6.3). Local 103s actions in operating its hiring hall are discriminatory and

therefore contrary to federal labor law. Accordingly, the duty of fair representation

absolutely applies under the facts alleged by Lydon. This is supported by caselaw,

where courts proceed to analyze a unions breach of this duty irrespective of

exclusive or nonexclusive hiring hall.



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For example, the court inBreiningerfound a complaint stated a claim for

breach of duty of fair representation in a non-exclusive hiring hall case. 493 U.S.

at 88-90.

Other cases demonstrate that the district courts position is not universal.

E.g. Brenner v. Local 514, United Broth. of Carpenters and Joiners of America,

927 F.2d 1283 (3rd. Cir. 1991) (duty of fair representation claim against a Local

operating a non-exclusive hiring hall not decided based on lack of duty).

In sum, even assuming a non-exclusive hiring hall, the Local 103 still owes a

duty of fair representation because it holds the power to place jobs out of reach.

Lydon is a union member in good standing at the time these transgressions took

place. The union owes a duty to represent its members fairly regardless of the

posture of the hiring hall.

d. Lydons Second Amended Complaint States a Plausible

Claim for Breach of Duty of Fair Representation.

Lydon alleged that Local 103 has breached its duty of fair representation in

at least three respects. First, Lydon alleged that Local 103s arbitrary conduct in

violating his rights under the LMRA and LMRDA breached Local 103s duty to

fairly represent him. (A.22, Pl.s Second Am. Compl. 6.2). Second, Lydon

alleged that the Local 103s sanctioning of the Solicitation system breached the

unions duty of fair representation because it eliminated opportunities of

employment for members who complied with the CBA and existing, and IBEW-



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approved, chronological dispatch system. (Id. 6.3). Third, Lydon alleged that

Local 103 breached its duty by bargaining for terms in the CBA contrary to the

requirements of the IBEW, that Local 103 is not enforcing its own rules and

regulations as required by the IBEW, and that Local 103 willfully ignored Lydons

valid complaints. (Id. 6.4). Finally, denying referrals is a breach of the duty of

fair representation--in both exclusive or nonexclusive hiring halls. E.g.,

Breininger, 493 U.S at 88-90.

Accordingly, the district courts reasoning is flawed, Lydon stated a

plausible claim for breach of duty of fair representation, and the district courts

Order dismissing this claim must be reversed.

CONCLUSION

In sum, the district court improperly dismissed Lydons Second Amended

Complaint. Lydons allegations plausibly state claims for relief for Local 103s

violation of the LMRA, LMRDA, and its breach of the duty of fair representation.

Accordingly, the district courts July 17, 2013 Order dismissing Lydons Second

Amended Complaint must be reversed.



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Respectfully submitted,

BRENDON LYDON,

By his Attorneys,

/s/ George P Fisher


George P. Fisher Attorney at Law


Portland, OR 97239

(503) 224-7730

Susan E. Stenger

BURNS & LEVINSON, LLP

125 Summer St., Boston, MA 02110-1624Telephone: 617-345-3739



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CERTIFICATE OF COMPLIANCE WITH FED.R.APP.P.32

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 11,357 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and type style requirements of Fed. R. App. P. 32(a)(6) because this brief

has been prepared using a proportionally spaced typeface using 2007 Microsoft

Word in 14-point Times New Roman.

Respectfully submitted,

BRENDON LYDON,

By his Attorneys,

/s/ George P. Fisher



Portland, OR 97239

(503) 224-7730

Susan E. Stenger

BURNS & LEVINSON, LLP

125 Summer Street

Boston, MA 02110-1624

Telephone: 617-345-3000

Dated: November 4, 2013



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CERTIFICATE OF SERVICE

I hereby certify that this brief, filed through the ECF system, will be sent

electronically to the registered participants as identified on the Notice of Electronic

Filing, and that paper copies will be sent to those indicated as non-registered

participants on November 4, 2013; the only other party is represented by

registered participant, Attorney Indira Talwani, Segal Roitman, LLP, 111

Devonshire Street, 5th

Floor, Boston, MA 02109, [email protected], and

thus will be served electronically through the ECF system this 4thday of October

2013.

s/ Susan E. Stenger



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ADDENDUM

MEMORANDUM AND ORDER,

dated July 17, 2013, Docket No. 70 A.1885

MEMORANDUM AND ORDER,dated August 15, 2013, Docket No. 77

A.204



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8/13/2019 Appellant Brief 11/06/