i 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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UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
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
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
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
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
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
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
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.
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.
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.).
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 . . . .”).
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).
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
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
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.