appellant reply brief 01/14/14

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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

__________________________________________________________________

REPLY BRIEF FOR PLAINTIFF-APPELLANT BRENDON LYDON Susan Stenger Burns & Levinson LLP 125 Summer Street Boston, MA 02110 (617) 345-3000

George P. Fisher, Pro Hac Vice, George P. Fisher, Attorney at Law 3635 S.W. Dosch Road Portland, Oregon 97239 (503) 224-7730 Attorneys for Plaintiff- Appellant, Brendon Lydon January 14, 2014

Case: 13-2009 Document: 00116636264 Page: 1 Date Filed: 01/14/2014 Entry ID: 5794197

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TABLE OF CONTENTS

TABLE OF AUTHORITIES……………………………………………..….......iv

SUMMARY OF ARGUMENT…………………………………………………...1

ARGUMENT……………………………………………………………….……..4

I. Motion to Dismiss Legal Standard……………………………………..…4

II. The District Court Abused its Discretion When it Failed to Consider Documents Identified in the Complaint and or the Additional Supporting Documents ………....................................................................5

III. Lydon’s Second Amended Complaint States a Plausible Claim for Violation of the LMRA.................................................................................7

A. Lydon’s Second Amended Complaint Alleged a Loss of Hiring Opportunity Due to the Solicitation System…………………………..9

B. Lydon’s “Choice” Was to Adhere to the Established Rules of the IBEW and the CBA……………………………………………………10

C. The Discrimination Alleged in Lydon’s Complaint is Precisely the Type the LMRA Seeks to Prohibit………………………………..….14

D. The Solicitation System is Bad………………………………………..18 E. Conclusion……………………………………………………………...19

IV. Lydon’s Second Amended Complaint States a Plausible Claim for Violation of the LMRDA…………………………………………...…….19

A. Lydon Could Not Have Made a Third Refusal to Work Because he was Ineligible for Work Under the Drug Free Program...………….21

B. Lydon’s Second Amended Complaint Alleged Discipline Carried Out by Local 103 in its Official Capacity…………………………………22

C. Conclusion……...………………………………………………………23

V. Lydon’s Second Amended Complaint Alleged a Plausible Claim for Breach of the Duty of Fair Representation ..............................................23


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A. Local 103 Breached its Duty of Fair Representation in Negotiating and Implementing the MOU…………………………………………………..25

B. The Operation of Local 103 as a Nonexclusive Hiring Hall Violated the CBA and Constitutes a Breach of the Duty of Fair Representation…...27

C. Lydon’s Loss of Referrals was Caused by Local 103’s Endorsement of the Solicitation System...………………………………………………….28

D. Conclusion…………………………………………………………………28

VI. Summary Judgment is Inappropriate at This Stage …………………...29

CONCLUSION………………………………………………………………......31

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

CERTIFICATE OF SERVICE……………………………………..………...…33


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TABLE OF AUTHORITIES CASES 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009)..................................................24 Air Line Pilots Association, International v. O’Neill, 499 U.S. 65 (1991).....................25 Ashcroft v. Iqbal, 556 U.S. 662 (2009)................................................................5, 18 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ………………..........……...…4, 5 Breininger v. Sheet Metal Workers International Association Local Union No. 6, 493 U.S. 67 (1989) …………………………......................................16, 17, 20, 22, 27 Clorox Co. Puerto Rico v. Proctor & Gamble Commerical Co., 228 F.3d 24 (1st

Cir. 2000) .......................................................................................................6 Farmer v. United Brotherhood of Carpenters and Joiners of America, Local 25, 430 U.S. 290 (1977)……………………………………..……...............................9 Haley v. City of Boston, 657 F.3d 39 (1st Cir. 2011)..............................................11 Marquez v Screen Actors, 525 U.S. 33 (1998)..........................................................25, 29 NLRB v. Ironworkers Local 503, 794 F.2d 1474 (9th Cir. 1986).............................15, 16 NLRB v. Teamsters “General” Local 200, 12-1583 (7th Cir. 2013)..............................16 National Labor Relations Board v. LOCAL 542, ETC., 255 F.2d 703 (3rd Cir. 1958)...............................................................................................................15, 16 Operating Eng'rs Local 406 v. NLRB, 701 F.2d 504, 508–11 (5th Cir. 1983)........15 Plumbers and Pipe Fitters Local Union No. 32 v. N.L.R.B., 50 F.3d 29 (D.C. Cir. 1995)..............................................................................................................15, 16 Radio-Electronics Officers Union v. NLRB, 16 F.3d 1280 (D.C. Cir. 1994), cert. denied, 513 U.S. 866 (1994)………………………………………...................................9


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Seal v. Laborers Int'l Union of N. Am. Highway, 241 F.3d 1142, 1148 (9th Cir. 2001)…..........................................................................................................10

Sutliffe v. Epping Sch. Dist., 584 F.3d 314 (1st Cir. 2009)………………….........……4 Teamsters Local Union No. 42 v. N.L.R.B., 825 F.2d 608 (1st Cir. 1987) ........7, 8, 15,16

STATUTES

29 U.S.C. § 158………………………………………………………….........................7 RULES Fed.R.Civ.P. 12..........................................................................................................4


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SUMMARY OF THE ARGUMENT

Appellee Local 103, International Brotherhood of Electrical Workers’

(“Local 103’s”) response to Appellant Brendon Lydon’s brief fails to demonstrate

that the district court was correct in dismissing Lydon’s claims for relief.

The fundamental error permeating both the district court’s order and Local

103’s brief is that both assume the validity of the Memorandum of Understanding

(“MOU”), which purports to provide the authority for Local 103 to operate a

Solicitation System. The fact of the matter is that the MOU is in direct conflict

with both the IBEW Pattern Agreement and the IBEW Constitution. Lydon’s

second amended complaint specifically alleged as such, and must be accepted as

true in considering the motion to dismiss.

Instead of recognizing that the Solicitation System, which was enacted

pursuant to the MOU, operated to remove jobs from the out-of-work list, Local 103

attempts to sustain its argument that the MOU somehow improved the job

prospects for Local 103 members. It may be correct in this regard concerning

certain members, but it does a disservice for others. This seems to be an argument

better served on summary judgment where Local 103 and Lydon could both

provide data on referrals. Lydon’s complaint alleged a loss of hiring hall referrals

due to the Solicitation System. In conjunction with the Lydon’s allegations that

the Solicitation System conflicts with the IBEW Constitution and Pattern


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Agreement, it was never approved as required by IBEW rules and procedures.

Therefore, Lydon alleged that Local 103 acted arbitrarily in implementing and

administering an invalid referral system to the detriment of Local 103’s members

who followed the IBEW rules.

Importantly, Lydon’s second amended complaint identified several

documents vital to the resolution of his claims: the IBEW Pattern Agreement; the

IBEW Constitution; and, the CBA. Lydon quoted portions of these documents and

then attached them to his opposition. Local 103 cannot doubt their authenticity.

But the district court abused its discretion by failing to consider the documents

identified in the complaint, as well as those attached to the motion for summary

judgment.

Lydon’s second amended complaint alleged a plausible claim for violation

of the Labor Management Relations Act (“LMRA”). A union violates the LMRA

where it discriminates between different groups of members of the same union on

an impermissible basis. Here, there are two clearly distinct groups within Local

103 who are being treated differently: 1) those who comply with the IBEW

dispatch rules and the CBA and refrain from utilizing the Solicitation System due

to its invalidity, and who seek dispatch through the proper procedures as identified

in the CBA; and 2) those who are endorsed by Local 103 to openly violate the

IBEW Constitution, the Pattern Agreement, and the CBA through blatant disregard


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of the same, and seek dispatch through a Solicitation System that was never

validated by the IBEW. Lydon alleges a plausible claim for relief.

Additionally, Lydon’s second amended complaint alleged a plausible claim

for violation of the Labor Management Reporting and Disclosure Act

(“LMRDA”). A union violates the LMRDA where it disciplines a union member

for engaging in a protected activity. Discipline may take the form of a loss of

hiring hall referrals. Here, Lydon alleged that he was vocal against union

management in opposing the MOU and Solicitation System, and was disciplined in

a “novel” manner. This discipline resulted in the loss of hiring opportunities.

Lydon plausibly stated a claim for violation of the LMRDA.

Moreover, Lydon’s second amended complaint also alleged a plausible

claim for breach of the duty of fair representation. A union breaches its duty of

fair representation where it negotiates and/or implements a side agreement that is

inconsistent with the terms of the Pattern Agreement, and not approved by the

International Union. Lydon alleged that Local 103 negotiated and implemented a

MOU that compromised the Category I language of the CBA. Lydon further

alleged that any change to Category I language required the approval of the IBEW.

Lydon also alleged that there is no indication that the IBEW ever approved the

changing of this language. This conduct falls outside the wide range of

reasonableness afforded to unions and amounts to arbitrary and irrational dealing.


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As such, Lydon stated a plausible claim for violation of the duty of fair

representation.

Finally, Lydon’s admissions are not fatal to the resolution of his claims and

even if a court were to decide this case on summary judgment, Lydon would

emerge victorious.

Based upon the foregoing, and Local 103’s failure to demonstrate otherwise

in its brief, the district court’s order dismissing all of Lydon’s claim must be

reversed.

ARGUMENT

I. Motion to Dismiss Legal Standard.

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 party’s 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 “plaintiff's obligation to provide the grounds of his entitlement to

relief requires more than labels and conclusions--a formulaic recitation of the


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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). “When 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.

II. The District Court Abused its Discretion When it Failed to Consider Documents Identified in the Complaint and/or the Additional Supporting Documents.

The district court abused its discretion when it failed to consider the

documentation Lydon attached in response to Local 103’s motion to dismiss, or in

the alternative, summary judgment. Included among the documentation attached

to the described opposition were documents identified in the complaint, and to

which the authenticity cannot be questioned.


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The district court recognized the possibility of considering this material

when it cited to the law that documents identified in the complaint may be

considered on deciding a motion to dismiss. (Order at 7, Def. Add. at 7); see also

Clorox Co. Puerto Rico v. Proctor & Gamble Commerical Co., 228 F.3d 24 (1st

Cir. 2000) (the court “may properly consider the relevant entirety of a document

integral to or explicitly relied upon in the complaint, even though not attached to

the complaint . . . .”). Consideration of these documents would have clarified the

picture for the district court.

First, Lydon identified, quoted and cited to, numerous documents in his

second amended complaint. (Second Am. Compl., A.22-32). These documents

included excerpts of: the Forward to the IBEW Pattern Agreement; the Pattern

Agreement; the CBA; and the IBEW Constitution. Then, upon Local 103’s motion

for summary judgment, Lydon attached additional declarations, emails, letters,

rules from the Workplace Safety Program, and a Local 103 Appeals Committee

decision, which rejected the then Local’s policy of permitting dispatch by

solicitation. See (App.10-65).

Instead of considering these documents identified directly in Lydon’s

complaint, the district court merely mentioned them in passing. See (Order at 7,

Def. Add. at 7).


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Consideration of the additional documents would have assisted the court in

understanding the facts alleged, opened the court’s eyes to comparative members

who were also damaged by the Solicitation System. Most of all, these additional

documents establish that there was no approval of the MOU. The IBEW did not

comment to its validity. And just like a previous appeals committee decision, an

unauthorized use of solicitation by dispatch violates the IBEW Constitution.

Accordingly, the district court abused its discretion when it failed to

consider the documents specifically identified and relied upon in the complaint,

and/or the additional documentation provided to the court in response to Local

103’s motion for summary judgment.

III. Lydon’s Second Amended Complaint States a Plausible Claim for Violation of the LMRA.

Lydon’s second amended complaint states a plausible claim for violation of

the LMRA. The conduct alleged therein is exactly the type of conduct the LMRA

forbids. Local 103’s brief fails to yield a contrary conclusion.1 Therefore, this

court must reverse the order of the district court.

Section 158(b) of the LMRA prohibits a labor organization from causing or

attempting to cause an employer to discriminate against a union member on

arbitrary, hostile or bad faith grounds. Teamsters Local Union No. 42 v. N.L.R.B.,

1 Just like the district court’s order, Local 103’s opposition takes an extremely narrow view of the complaint to formulate its various positions. Lydon’s


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825 F.2d 608, 611 (1st Cir. 1987) (internal citations and quotation marks omitted).

Moreover, a union may not take action favoring some members at the expense of

others. Id. Union members are to be accorded equal rights. Id.

Lydon alleged that Local 103’s implementation and endorsement of the

MOU and Solicitation System was discriminatory because it favored access to jobs

for those who utilized the Solicitation System at the expense of those who

abstained from use of the system. (Second Am. Compl. ¶ 4.2, A.28).

Additionally, Lydon alleged the MOU violated IBEW rules, including the Pattern

Agreement and IBEW Constitution. (Id. ¶¶ 4.2-.3, A.28).2 Furthermore, the

Solicitation System violated the CBA that mandated Local 103 to be operated as an

exclusive hiring hall. (Id. ¶ 3.5, A.24). Jobs that would have otherwise been

assigned via the chronological out-of-work list were effectively removed from

consideration. Therefore, Lydon alleged a loss of job referrals due to the

implementation, operation, and endorsement of the Solicitation System.3 This loss

of job referrals amounts to discrimination under the statute.

Based upon the foregoing, Lydon’s second amended complaint plausibly

states a claim for violation of the LMRA. 2 Lydon acknowledges and concedes an error in his brief. (Appellant’s Br. at 23-24). A union violates § 158(b) and an employer violates § 158(a). Section158(a) nevertheless is relevant to the discussion of whether the union violated § 158(b). 3 Lydon admits he never alleged or argued that Local 103 terminated his membership. (Appellee’s Br. at 26 n.7). Lydon cited the rule in its entirety for the court’s reference.


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A. Lydon’s Second Amended Complaint Alleged a Loss of Hiring Opportunity Due to the Solicitation System.

Lydon’s second amended complaint alleged that the Solicitation System

prevented him from gaining employment by removing job opportunities that

otherwise must be assigned via the chronological out-of-work list. (Id. ¶4.2, A.28).

Nevertheless, in an erroneous statement, Local 103 argues: “Lydon has alleged no

firing or loss of hiring opportunity as a result of the union’s conduct.” (Appellee’s

Br. at 27). Local 103 is mistaken.

“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). Any departure from the established and published hiring hall

procedures that results in a loss of employment is presumptively illegal. Radio-

Electronics Officers Union v. NLRB, 16 F.3d 1280, 1284 (D.C. Cir. 1994), cert.

denied, 513 U.S. 866 (1994).

Local 103’s CBA declares that it is the sole and exclusive source for

referrals for employment. (Second Am. Compl. ¶3.5, A.24, App. 20). Local 103

implemented the Solicitation System. (Id. ¶ 3.14-.15, A.26). The Solicitation

System allows Local 103’s members who complied with the System’s

requirements to bypass the chronological out-of-work list. (Id. ¶4.2, A.28). The

jobs that Local 103 members acquired through the Solicitation System would have


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otherwise been assigned through the chronological out-of-work list. (Id. ¶3.5,

A.24). Thus, Local 103’s implementation, and administration, and the Solicitation

System caused Lydon a loss of hiring opportunities. Thereby, the presumption of

illegality defined in Radio-Operators is present here and Local 103’s brief fails to

demonstrate a valid rebuttal of that presumption.

B. Lydon’s “Choice” Was to Adhere to the Established Rules of the IBEW and the CBA.

Lydon and other members abstaining from the Solicitation System lost out

on hiring opportunities as a result of the Solicitation System. Local 103’s

opposition brief now attempts to place the blame on Lydon for missing out on job

opportunities. Local 103 characterizes Lydon’s abstention from utilizing the

system as a “choice” and he therefore cannot fault Local 103 for the loss in

opportunities. (Appellee’s Br. at 31-32). Local 103, however, fails to take into

account the central point alleged in Lydon’s second amended complaint, and

reiterated in this brief: the MOU violated the CBA, IBEW Pattern Agreement, and

IBEW Constitution. (Pl.’s Second Am. Compl. ¶ 4.3, A.28). This reality cannot

be denied.

The CBA is supreme. E.g. Seal v. Laborers Int'l Union of N. Am. Highway,

241 F.3d 1142, 1148 (9th Cir. 2001) (“The LMRA emphasizes . . . . the primacy of

the collective bargaining agreement”).


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The controlling CBA defines Local 103 as an exclusive hiring hall. (Id. ¶

3.5). The Pattern Agreement mimics that language. (Pattern Agreement, App. 20).

The Inside Agreement requires Category I language, like that changing the

designation from exclusive to nonexclusive hiring hall requires IBEW approval.

(Second Am. Compl. ¶¶ 3.9-.12, A.25-26). Likewise, the IBEW Constitution

requires a MOU, such as the one here, to be approved prior to implementation.

(IBEW Constitution, App. 22-23). 4 Where a deviation in language exists, the

IBEW withholds approval of those agreements. (Second Am. Compl. ¶ 3.13,

A.26). Lydon alleged that the IBEW International Office approved the language

change, but provide no evidence of such an approval. (Id. ¶¶3.16, 4.3, A.26, 28).

The fact is that the MOU was never ruled upon by the IO of the IBEW. Since the

MOU was never properly approved, the Solicitation System is invalid. 4 The IBEW Constitution is specifically identified in Lydon’s Second Amended Complaint. (Second Am. Compl. ¶ 4.3, A.28). This Court may therefore consider the IBEW policies in ruling on Local 103’s motion to dismiss. Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011). The IBEW Constitution provides:

Sec. 6. L.U.’s are empowered to make their own bylaws and rules, but these shall in no way conflict with the Constitution. Where any doubt appears, this Constitution shall be supreme. All bylaws, amendments and rules, all agreements, jurisdiction, etc., of any kind or nature shall be submitted to the I.P. for approval. No L.U. shall put into effect any bylaw amendment, rule or agreement of any kind without first securing such approval. All these shall be null and void without I.P. approval. The I.P. has the right to correct any bylaws, amendments, rules, or agreements to conform to this Constitution and the policies of the I.B.E.W.

(IBEW Constitution, App. 22) (emphasis added).


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Hence, Local 103’s actions must reasonable be viewed as arbitrary, hostile,

and/or in bad faith. The district court faulted Lydon for not producing caselaw that

states a union violates the LMRA when it acts in contravention of the CBA or

International Constitution, and Local 103 leapt onto that point. (Order at 9, Def.

Add. at 9). Conversely, Lydon would love to see caselaw that states a union is free

to enter into side agreements or MOU that directly conflict with a CBA or that

administering a nonexclusive hiring hall in direct contravention of the terms of the

CBA. Between the district court and Local 103, neither was able to identify a case

holding what the district court desired. The MOU is void pursuant to the terms of

the IBEW Constitution. (IBEW Constitution, App. 22).

In any event, the argument whether or not there was a loss or increase of

hiring opportunities delves into factual matters better served on summary

judgment.5 This includes the testimony of Lydon, as well as other union members

who were disadvantaged by the system and their supporting documents.

This court should not be persuaded by Local 103’s arguments. Local 103 is,

by agreement, an exclusive hiring hall. See (CBA, App. 21). Lydon alleged this

much when he alleged the MOU was invalid and that the agreement could not

change the hiring hall’s designation. Just the fact that Local 103 operates a

5 To the extent this Court is inclined to explore this allegation, Lydon attached numerous declarations of other Local 103 members who lost job opportunities as a result of Local 103’s endorsement of the Solicitation System. See (App.).


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nonexclusive hiring hall in contravention of the CBA does not destroy the

presumption of illegality.

Local continues to make the erroneous assumption that the MOU is valid

and is a part of the CBA. Its position is that Lydon alleged that the MOU was

pursuant to an agreement between Local and Boston NECA and that this makes the

MOU legal. See (Appellee’s Br. at 29). It is this position of Local 103 that

establishes its violation of the CBA.

Nothing in the complaint can be said to have made the MOU permissive or

valid or part of the CBA. Simply put, it is not. Moreover, Local 103, in operating

the hiring hall, was not acting to enforce a provision of the CBA because the MOU

was not the CBA. The primacy of the CBA destroys the validity of the MOU.

Therefore, Local 103 cannot take advantage of cases saying “no violation” for

carrying out a provision of the CBA. See (Appellee’s Br. at 28).

Nobody, including Lydon, disputes the ability of a local chapter to enter into

side agreements that supplement the CBA. In fact, the IBEW Constitution and

Pattern Agreement both specifically outline the procedures for implementing those

side agreements. (Pattern Agreement & IBEW Constitution, App. at 18-19, 23-

24). Lydon, however, alleges that Local 103 failed to gain approval for the side

agreement at issue here—the MOU. Thus, Local 103’s argument that it can rebut

the presumption of illegality must fail again. See (Appellee’s Br. at 29).


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Nevertheless, to the extent that Local 103 claims that the MOU, and thereby

the Solicitation System, is valid must be an issue for summary judgment. Lydon’s

complaint alleged that the MOU was implemented without approval of the IBEW

as was required by the Pattern Agreement and IBEW Constitution.

As a practical matter, allowing the union to implement side agreements and

memoranda of understanding would create impressive precedent. To hold that a

local union is free to change the terms of a CBA without the International’s

approval would be ground-breaking, but counter-productive.

To a certain degree, Local 103 is correct. Lydon did make a choice—a

choice to faithfully follow the IBEW’s Rules and Procedures, and to not participate

in dispatch by Solicitation.

C. The Discrimination Alleged in Lydon’s Complaint is Precisely the Type the LMRA Seeks to Prohibit.

Lydon’s second amended complaint alleged exactly the type of

discrimination the LMRA seeks to prohibit. In short, Lydon’s complaint alleged

that Local 103 engaged in a course of conduct intended to encourage submissive

union behavior through Local 103’s demand for compliance with its system.

Those who did not succumb to the pressure of Local 103’s actions were left to rot

on the chronological out-of-work list for years waiting for work to reach them.

Local 103’s conduct was arbitrary, hostile and in bad faith, and it favored one


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union group at the expense of others.6 Teamsters Local Union No. 42, 825 F.2d at

611.

In his opening brief, Lydon cited a trio of cases demonstrating this principle

in action. Id. at 608; Plumbers and Pipe Fitters Local Union No. 32 v. N.L.R.B.,

50 F.3d 29, 34 (D.C. Cir. 1995); National Labor Relations Board v. LOCAL 542,

ETC., 255 F.2d 703, 705 (3rd Cir. 1958). Though Local 103 seeks to nullify their

import, the principles advanced therein are not unique and are seen in many other

cases. For example, the Ninth Circuit noted in this context that:

[N]o specific intent to discriminate on the basis of union membership need be shown in order to prevail on a claim under 29 U.S.C. Sec. 158(b)(1)(A). A union violates that provision if it wields its power invidiously or arbitrarily, for such conduct gives notice that its favor must be curried, thereby encouraging membership and unquestioned adherence to its policies.

This court has indicated that when the hiring hall deviates from written rules without adequate justification, even pursuant to longstanding exceptions routinely applied, the Board may rationally conclude that the union is wielding its power arbitrarily.

NLRB v. Ironworkers Local 503, 794 F.2d 1474, 1478 (9th Cir. 1986) (internal

citation and quotation marks omitted). In yet another case, the court held that a

surreptitious change in referral rules was unlawful under the LMRA. Operating

Eng'rs Local 406 v. NLRB, 701 F.2d 504, 508–11 (5th Cir. 1983). Finally, in a

6 Lydon’s Complaint is filled with allegations satisfying the legal standards, though he may not have used the “magic words” that Local 103 would have. See (Appellee’s Br. at 30) (arguing that Lydon did not allege that “Local 103 sought to discriminate against him . . . on arbitrary, hostile or bad faith grounds . . . .”).


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recent case of the Seventh Circuit, the court held a local union’s discriminatory

refusal to refer based on years long political opposition to union officials was

illegal. National Labor Relations Board v. Teamsters “General” Local Union No.

200, 12-1586 (7th Cir. 2013).

The Solicitation System is an indication the Local 103 is wielding its power

arbitrarily, with hostility, or in bad faith. Local 103 never identifies how the MOU

is valid beyond the fact of Local 103 contracting with the employer group, NECA,

thereby allowing the illicit Solicitation System to taint the hiring hall and deprive

CBA-abiding members from job opportunities.

Favoring a sect of union members who are subservient to the “rules” of the

Solicitation System over those who are compliant with the CBA through the

chronological system arises to encouraging union membership in contravention of

the statute. See Breininger v. Sheet Metal Workers International Association Local

Union No. 6, 493 U.S. 67, 74 (1989); Teamsters Local Union No. 42, 825 F.2d at

611; Plumbers and Pipe Fitters Local Union No. 32, 50 F.3d at 34; LOCAL 542,

ETC., 255 F.2d at 705; Ironworkers Local 503, 794 F.2d at 478.7 The Solicitation

7 Local 103 suggests that an alleged unauthorized dispatch system that prevents CBA-complying union members from gaining employment cannot amount to discrimination under the LMRA. (Appellee’s Br. at 31). Local 103 proclaims this a “novel concept.” (Id.). With all due respect, this is not a “novel concept.” Courts regularly hold that dividing union groups on “arbitrary, hostile, or bad faith grounds” violates the LMRA. The division alleged in Lydon’s complaint satisfies these criteria. (Second Am. Compl. ¶ 3.6, A.24).


17

System represents the union unreasonably wielding its power to force members

into complying with its demands. One group is allowed additional access to jobs

and for others access becomes extremely limited.

Again, the LMRA is not as simple as Local 103 makes it out to be.

Discrimination under the LMRA is 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.” Breininger, 493

U.S. at 74.

Local 103 prevented CBA-complying union members from working. The

Solicitation System removes jobs that would have otherwise been assigned via the

chronological list. Therefore, there are clearly two groups—those who utilize the

Solicitation System and those who do not. Thus, a member who does not wish to

comply with the demands of the union in operating the Solicitation System is

prevented access to jobs that should have been assigned via the chronological

system.

The Solicitation System does not operate so easily as Local 103 would have

this court believe. See (Appellee’s Br. at 33). Local 103 provides oversight of the

System and requires that a job-solicitor receive endorsement from Local 103 prior

to beginning a solicited job. (Second Am. Compl. ¶ 3.15, A.26). The advantage of

the Solicitation System is that Local 103 members who are subservient to the


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demands of Local 103 are allowed access to jobs that would otherwise be assigned

to the chronological list. The jobs available via the Solicitation System are placed

out of the reach of the out-of-work list members who abide by the CBA. The

discrimination is impermissible because the Local 103 is operating a hiring hall in

contravention of the terms of the IBEW and dividing the groups on this

classification is as disallowed by the statute.

Upon these facts and allegations and applicable legal standards, the

Solicitation System violates the LMRA by favoring union members who utilize the

system at the expense of those who don’t.

D. The Solicitation System is Bad.

The Solicitation System is bad. It disenfranchises Local 103’s members

who follow the CBA and refrain from engaging in behavior that violates the CBA.

Local 103 would have this court believe that the Solicitation System is a good

thing for its members and that it is preposterous to argue otherwise. (Appellee’s

Br. at 33).

The court is tasked with determining whether Lydon’s second amended

complaint states a plausible claim of violation of the LMRA. Ashcroft, 556 U.S. at

679. Lydon alleged the Local’s implementation and endorsement of the System

resulted in discrimination in violation on of the LMRA. (Second Am. Compl.

¶4.2, A.28). Lydon alleged that the System removed the availability of jobs from


19

members on the whole. (Id.). The System allowed members to bypass the

chronological list to the detriment of those who abstained. (Id.). The endorsement

and administration of the Solicitation System is conduct that violates the CBA.

This is a union unreasonably wielding its power. This is a union trying to force

members to be compliant with with all union demands. This is a union

discriminating against those who do not dive in blindly. This is precisely the

conduct the LMRA seeks to prohibit.

Finally, if Local 103 wants to demonstrate a nondiscriminatory business

purpose or nondiscriminatory attempt to benefit all represented employees, Lydon

would be happy to examine that over summary judgment or trial. See (Appellee’s

Br. at 34). But here, where Lydon has alleged a discriminatory purpose for the

Solicitation System, any such argument of Local 103 is based upon facts not

alleged in the complaint and unavailable to Local 103 for the purposes of this

appeal.

E. Conclusion.

Accordingly, the district court’s order dismissing Lydon’s LMRA claim

must be reversed.

IV. Lydon’s Second Amended Complaint States a Plausible Claim for Violation of the LMRDA.

Lydon alleged that he was denied hiring hall referrals as a form of discipline

in violation of the LMRDA.


20

“[The] provisions [of the LMRDA] 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). The

phrase to “otherwise discipline” contemplates union conduct taken outside of

official proceedings. Id. at 92 n.15. A loss of hiring hall referrals is a type of

discipline prohibited by the LMRDA. Id.

Local 103’s discipline of Lydon is visible through his placement at the

bottom of the chronological out-of-work list. (Second Am. Compl. ¶ 5.4, A.29).

This placement was upheld through an official union tribunal convened by Local

103’s Business Manager, Mike Monahan. (Id. ¶¶ 5.6-.6, A.29-30). The basis for

Lydon’s discipline was that he was an undesirable and he was also vocal against

Local 103’s unauthorized Solicitation System. (Id. ¶¶ 3.17, 3.19-.21, 5.6-.8, A.27,

30). Further, the Solicitation System was in place to “rid the Local of

undesirables.” (Id. ¶3.15, A.26). As alleged, these facts make out a claim for

violation of the LMRDA.

In its brief, Local 103 instead focuses the attention on the circumstances

surrounding Lydon’s placement on the bottom of the chronological out-of-work

list. However, these issues were fully briefed in Lydon’s opening brief.

(Appellant’s Br. at 28-37).


21

A. Lydon Could Not Have Made a Third Refusal to Work Because he was Ineligible for Work Under the Drug Free Program.

Local 103 mischaracterizes Lydon’s allegations in an attempt to confuse this

court. Lydon’s second amended complaint alleged that he removed himself from

the voluntary Drug Free Program when he was near the top of the out-of-work

chronological list. (Second Am. Compl. ¶5.2, A.29). Lydon alleges he removed

himself from the Program because the opportunities offered through that Program

were not to his satisfaction. (Id.). Subsequently, when Lydon was no longer

enrolled in the Drug Free Program, he still was offered work through the Program.

(Id. ¶¶ 5.2, 5.4, A.29). Local 103 counted Lydon’s refusal to accept the work

(which he was not eligible to accept) as a third refusal and “rolled” him off the

books. (Id. ¶5.4-.6, A.29). Lydon attempted to challenge the refusal, but his

appeal was denied in what appeared to be a foregone conclusion. (Id. ¶5.5-.6). A

conclusion that caused Lydon, who was finally in a position to accept work off the

chronological out-of-work list, to be moved to the bottom of that list. (Id. ¶5.4,

A.29). He was effectively denied an assignment to work due to the Local 103’s

counting the Drug Free Program refusal as a third refusal for purposes of his

seeking work on the chronological list. Therefore, Lydon was denied work on an

arbitrary basis because the Solicitation System and the chronological procedures

are not synchronized.


22

There is no allegation that Lydon sought special treatment. Lydon could not

have refused the Drug Free Program offer because he was not a member of that

list. Lydon did not allege that the three-refusal rule is impermissible or not

applicable to him. Instead, Lydon allegations indicate that he could not have made

a third refusal because he was ineligible to do so. See (id. ¶¶5.2-.6, A.29-30). In a

word, Lydon was not attempting to game the system in any manner.

In sum, Lydon properly alleged his inability to refuse work under the Drug

Free Program and that the application of the third refusal to him was arbitrary

and/or without a reasonable basis under the circumstances.

B. Lydon’s Second Amended Complaint Alleged Discipline Carried Out by Local 103 in its Official Capacity.

Lydon alleged that he was formally disciplined by the union authority—not

a union official acting on an ad hoc basis. (Id. ¶ 5.5-.8, A.29-30).8 Local 103’s

continued belief is that Lydon alleged both an ad hoc retaliation and that the

proceeding did not carry the “opprobrium” of the union is incorrect. Contrary to

Local 103’s interpretation of the complaint, Lydon alleged much more than ad hoc

retaliation by a single union official. Moreover, Local 103 misapplies the

Breininger case and rule therein. (Appellee’s Br. at 35); Cf. Breininger, 493 U.S.

at 92 n.15 (discipline may occur outside official proceeding). As Lydon wrote in

8 In a footnote, Local 103 avers that “something more than a passing member of an officer’s title must be required.” (Appellee’s Br. at 38 n.8).


23

his opening brief, Monahan acted with Local’s authority and endorsement. See

(Appellant’s Br. at 34-35).

Lydon alleged that Monahan is the business manager of Local 103. (Second

Am. Compl. ¶3.7, A.24). Lydon alleged that the appeals committee and Monahan

are connected. (Id. ¶5.5-.6, A.29-30). Lydon alleged his appeal was denied. (Id. ¶

5.6, A.30). Monahan was present and made a specific comment about Lydon to

another Local member. (Id.). The comment indicated that Lydon was one among

a larger group of undesirables in the Local. (Id.). Whoever at the union (either

unintentionally or intentionally) who did not receive Lydon’s notice of removal

could have acted in their official union capacity. (Id. ¶5.8, A.30). The reasonable

inference to derive from Lydon’s complaint is the business manager, and/or his

agents, were acting on behalf of Local 103 to rid the union of undesirables. This is

hardly a stretch based upon Lydon’s allegations.

C. Conclusion

Accordingly, Lydon’s second amended complaint alleged a plausible claim

for violation of the LMRDA and the district court erred in dismissing Lydon’s

claim.

V. Lydon’s Second Amended Complaint Alleged a Plausible Claim of Relief for Breach of the Duty of Fair Representation.

Lydon’s second amended complaint stated a plausible claim that Local 103

breached its duty of fair representation to Lydon.


24

“A union breaches its duty of fair representation when its conduct toward a

member of the bargaining unit is arbitrary, discriminatory, or in bad faith.” 14

Penn Plaza LLC v. Pyett, 556 U.S. 247, 271 (2009).

Lydon’s second amended complaint alleged that Local 103 breached its duty

of fair representation by negotiating for a Solicitation System in direct conflict

with the CBA, Pattern Agreement, International Constitution, and by not gaining

approval from the IBEW prior to implementing and endorsing that system.

A. Local 103 Breached its Duty of Fair Representation in Negotiating and Implementing the MOU.

Local 103’s actions in negotiating and implementing the MOU breached

Local 103’s duty of fair representation.

Although a union enjoys a “wide range of reasonableness” in collective

bargaining, there are limits to that range. A term negotiated by a union falls

outside the wide range of reasonableness when its conduct is wholly irrational or

arbitrary. Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 78 (1991). “A union’s

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).

This does not mean an absolute ability to negotiate terms that are in conflict with

the CBA, Pattern Agreement, and IBEW Constitution. See id.

The IBEW acknowledges the ability of Local chapters to negotiate side

agreements to supplement the CBA. (Pattern Agreement & IBEW Constitution


25

App. at 19, 23). Lydon’s complaint also alleged this fact. (Second Am. Compl.

¶¶3.2-.4, A.23-24). Nevertheless, the IBEW Agreement maintains that Local 103

must operate as an exclusive hiring hall unless certain procedures are followed to

change the CBA, none which occurred in this case. (Pattern Agreement & IBEW

Constitution, App. 18-21, 23). Most importantly, the condition precedent to

implementation is approval from the IBEW. (Id.).

The MOU, which put into place the Solicitation System usurps IBEW’s role.

The CBA mandates that Local 103 is to be operated as an exclusive hiring hall.

(Second Am. Compl. ¶3.5, A.24, App. at 21). Despite this fact, Local 103

continues to mischaracterize Lydon’s allegations as stating Local 103 was

rightfully operating as a nonexclusive hiring hall. E.g. (Appellee’s Br. at 43). And

based upon that misnomer, Local 103 argues it owed Lydon no duty of fair

representation. (Id.).

Here, the hiring hall was already negotiated and part of the agreement. See

(Second Am. Compl. ¶3.5, A.24). There is not an argument otherwise. Local 103,

however, sought to change the hiring hall’s status without IBEW approval—

approval that was required.

It is abundantly clear the MOU and the Solicitation System weren’t

implemented by IBEW Procedures. Lydon alleged that the rules clearly stated the

criteria and protocol for changing the agreement’s language. Local 103 ignored


26

this protocol and implemented the system anyway. The result is a division among

CBA compliant union members, and those who follow Local 103’s cowboy tactics

and by disregarding the terms of the CBA. The only reasonable inference based

upon these allegations is that the Solicitation System is irrational and/or arbitrary.

Local 103 continues to ignore the allegations that the MOU was not

approved by the IBEW. Local 103 therefore took jobs away from union members

who complied with the approved dispatch procedures when it negotiated and

implemented the Solicitation System. The System denied equal access to work if

any member decides not to use the Solicitation System. By so doing, the System

does not have a legal basis to be in existence.

Local 103 and the district court rely on the lack of authority for violations of

the IBEW’s rules. (Appellee’s Br. at 42). This is not a “purported” conflict with

the IBEW’s Constitution and Pattern Agreement, it is an actual conflict with the

IBEW Constitution and Pattern Agreement. Local 103 cannot dispute what the

IBEW agreement says and what the MOU operates to do. The MOU created a

system disallowed without approval and is likely void when viewed in the terms of

the Inside Agreement and IBEW Constitution.

Thus, Lydon’s second amended complaint alleged that Local 103 negotiated

an agreement that falls outside the wide range of reasonableness afforded to unions

in matters like Lydon’s. The MOU is alleged to be irrational or arbitrary because it


27

was not approved by the IBEW as required by the rules. Therefore, the

Solicitation System must be arbitrary and Local 103’s behavior is a breach of its

duty of fair representation.

B. The Operation of Local 103 as a Nonexclusive Hiring Hall Violated the CBA and Constitutes a Breach of the Duty of Fair Representation.

In addition to the negotiating, Local 103 also owed Lydon a duty of fair

representation in operating the hiring hall, and Lydon alleged sufficient facts to

state a plausible claim for breach of that duty in this context as well.

There is no dispute that a labor organization owes its members a duty of fair

representation in the operation of a hiring hall. Breininger, 493 U.S. at 88.

Exclusive hiring hall or not, Local 103 is alleged to have placed jobs outside the

reach of workers through its illicit system.

Initially, Local 103 mischaracterizes Lydon’s allegations as stating that

Local 103 permissively operates a nonexclusive hiring hall. See (Appellee’s Br. At

43). On the contrary. Lydon alleged the MOU impermissibly transformed the

hiring hall from exclusive to nonexclusive. Local 103, however, by rule is an

exclusive hiring hall and the MOU is invalid. Furthermore, Breininger is relevant

even where Local 103 seeks to distinguish it because the legal principles provided

therein are controlling. See (Appellee’s Br. at 44).


28

Local 103 may place jobs out of reach even if the court accepts Local 103’s

characterization as a nonexclusive hiring hall. In addition to Breininger, Lydon’s

brief cited caselaw showing a union may be liable for a breach of the duty of fair

representation in operating even a nonexclusive hiring hall. (Appellant’s Br. at

43).

On the foregoing information, it is clear Lydon’s complaint alleged that

Local 103 breached its duty of fair representation.

C. Lydon’s Loss of Referrals was Caused by Local 103’s Endorsement of the Solicitation System.

Finally, Local’s citation to an 11th circuit unpublished case is weak.

(Appellee’s Br. at 45). Here, Lydon’s loss of referrals came as a result of the

Solicitation System’s removal of referrals from the chronological list. Lydon’s

claim does not arise out of his actions, but of the actions of Local 103 in placing

jobs out of the reach of the chronological list to which Lydon was a member.

Moreover, Lydon possesses actual comparative data that was attached with his

MSJ opposition. See (App. at 41-66).

D. Conclusion.

In sum, Lydon’s Second Amended Complaint states a claim for breach of

the duty of fair representation.


29

VI. Summary Judgment is Inappropriate at This Stage.

As Local 103 recognizes, Lydon specifically outlined additional material

that was critical to the resolution of his claims. (Appellee’s Br. at 48). This is

because Lydon has still yet to receive all the material he requested from Local 103.

Lydon would be excited to decide this case on summary judgment. The

additional material attached to his opposition demonstrates a genuine issue of

material fact for trial.

Local 103 opines that Lydon’s claims are futile based upon two admissions.

The first being that the Solicitation System was passed through negotiation with

NECA. (Id. at 5) (“Local 103 does not have the power to unilaterally establish the

hiring hall he desires.”). The second is that insofar as Lydon was offered and he

denied referrals, he cannot complain. (Id.).

As a practical matter, the hiring hall already existed in the form Lydon

followed—the chronological exclusive dispatch system. (Second Am. Comp. ¶3.5,

A.24). The fact that Local and NECA negotiated an agreement in violation of the

CBA and unapproved by the IBEW does not destroy Lydon’s claims. Marquez,

525 U.S. at 46 (providing standard). Moreover, Local 103 mischaracterizes the

allegations regarding the referrals. Lydon alleged that he was denied referrals

because jobs that would have gone to the chronological list were instead assigned


30

to the Solicitation System. (Second Am. Compl. ¶4.2, A.28). This is one type of

loss of job referral. The second type of loss of job referral is the placement on the

bottom of the list. (Id. ¶¶5.4-.6 A.29-30). Lydon made no third refusal because he

was unable to so due to his removal from the list that offered him the work. (Id.

¶5.2, A.29).

Therefore, should this court follow Lydon’s reasoning and reverse the order

of the district court, Lydon would covet the opportunity to develop additional facts

through discovery. In the event discovery is denied, Lydon looks forward to the

resolution of the case in his favor on summary judgment.


31

CONCLUSION

For the reasons set forth above, this court must find that Lydon’s second

amended complaint stated plausible claims for violations of the LMRA, LMRDA,

and the duty of fair representation. This court should reverse the order of the

district court dismissing those claims and remand for further consideration.

Respectfully submitted

BRENDON LYDON

By his Attorneys, /s/ George P Fisher Susan Stenger

BURNS & LEVINSON, LLP 125 Summer Street Boston, MA 02110-1624 Telephone: 617-345-3000 Facsimile: 617-345-3299

George P. Fisher, Pro Hac Vice, George P. Fisher Attorney at Law 3635 S.W. Dosch Road Portland, Oregon 97239 (503) 224-7730 Attorneys for Plaintiff-Appellant, Brendon Lydon January 14, 2014


32

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 6,983 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 2011 Microsoft

Word in 14-point Times New Roman.

Respectfully submitted, BRENDON LYDON By his Attorneys,

/s/ George P. Fisher Susan Stenger

BURNS & LEVINSON, LLP 125 Summer Street Boston, MA 02110-1624 Telephone: 617-345-3000 Facsimile: 617-345-3299

George P. Fisher, Pro Hac Vice, 3635 S.W. Dosch Road Portland, Oregon 97239 (503) 224-7730 Attorneys for Plaintiff-Appellant, Brendon Lydon Dated: January 14, 2014


33

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 January 14, 2014.

s/ George P. Fisher
