Lead Opinion
delivered the opinion of the Court.
This сase presents two questions under the federal labor laws: first, whether the National Labor Relations Board (NLRB or Board) has exclusive jurisdiction over a union member’s claims that his union both breached its duty of fair representation and violated the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 519, 29 U. S. C. §401 et seq. (1982 ed.), by discriminating against him in job referrals made by the union hiring hall; and second, whether the union’s alleged refusal to refer him to employment through the hiring hall as a result of his political opposition to the union’s leadership gives rise to a claim under §§ 101(a)(5) and 609 of the LMRDA, 29 U. S. C. §§ 411(a)(5), 529 (1982 ed.). The Court of Appeals for the Sixth Circuit held that petitioner’s suit fell within the exclusive jurisdiction of the Board and that petitioner had failed to state a claim
HH
Petitioner Lynn L. Breininger was at all relevant times a member of respondent, Local Union No. 6 of the Sheet Metal Workers International Association. Pursuant to a multi-employer collective-bargaining agreement, respondent operates a hiring hall through which it refers both members and nonmembers of the union for construction work. Rеspondent maintains an outTof-work list of individuals who wish to be referred to jobs. When an employer contacts respondent for workers, he may request certain persons by name. If he does not, the union begins at the top of the list and attempts to telephone in order each worker listed until it has satisfied the employer’s request. The hiring hall is not the exclusive source of employment for sheet metal workers; they are free to seek employment through other mechanisms, and employers are not restricted to hiring only those persons recommended by the union.
Petitioner alleges that respondent refused to honor specific employer requests for his services and passed him over in making job referrals. He also contends that respondent refused to process his internal union grievances regarding
The District Court held that it lacked jurisdiction to entertain petitioner’s suit because “discrimination in hiring hall referrals constitutes an unfair labor practice,” and “[t]he NLRB has exclusive jurisdiction over discrimination in hiring hall referrals.” No. C 83-1126 (ND Ohio, Feb. 20, 1987), p. 6, reprinted in App. to Pet. for Cert. A9. The District Court determined that adjudieatingpetitioner’s claims “would involve interfe[r]ing with the NLRB’s exclusive jurisdiction.” Id., at 7, App. to Pet. for Cert. A10.
The Court of Appeals affirmed in a brief per curiam opinion. With respect to the fair representation claim, the court noted that “[c]ircuit courts have consistently held that . . . fair representation claims must be brought before the Board” and that “if the еmployee fails to affirmatively allege that his employer breached the collective bargaining agreement, which [petitioner] failed to do in the case at bar, he cannot prevail.”
II
A
We have long recognized that a labor organization has a statutory duty of fair representation under the National Labor Relations Act (NLRA)/ 49 Stat. 449, as amended, 29 U. S. C. § 151 et seq. (1982 ed.), “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,
Nevertheless, the District Court was not deprived of jurisdiction. In Vaca v. Sipes, supra, we held that Garmon's, pre-emption rule does not extend to suits alleging a breach of the duty of fair representation. Our decision in Vaca was premised on several factors. First, we noted that courts developed and elaborated the duty of fair representation before the Board even acquired statutory jurisdiction over union activities. Indeed, fair representation claims often involve matters “not normally within the Board’s unfair labor practice jurisdiction,”
“As we understood our inquiry, it was whether Congress, in enacting § 8(b) in 1947, had intended to oust the courts of their role enforcing the duty of fair representation implied under the NLRA. We held that the ‘tardy assumption’ of jurisdiction by the NLRB was insufficient reason to abandon our prior cases, such as Syres [v. Oil Workers,350 U. S. 892 (1955)].”
That a breach of the duty of fair representation might also be an unfair labor practice is thus not enough to deprive a federal court of jurisdiction over the fair representation claim. See Communications Workers v. Beck,
We decline to create an exception to the Vaca rule for fair representation complaints arising out of the operation of union hiring halls. Although the Board has had numerous opportunities to apply the NLRA to hiring hall policies,
Respondent calls to our attention language in some of our decisions recognizing that “[t]he problems inherent in the operation of union hiring halls are difficult and complex, and point up the importance of limiting initial competence to adjudicate such matters to a single expert federal agency.” Journeymen and Apprentices v. Borden,
The duty of fair representation is different. It has “judicially evolved,” Motor Coach Employees v. Lockridge,
The Court of Appeals below also held that if an employee fails to allege that his employer breached the collective-bargaining agreement, then he cannot prevail in a fair represеntation suit against his union. See
Our reasoning in Vaca in no way implies, however, that a fair representation action requires a concomitant claim against an employer for breach of сontract. Indeed, the earliest fair representation suits involved claims against unions for breach of the duty in negotiating a collective-bargaining agreement, a context in which no breach-of-contract action against an employer is possible. See Ford Motor Co. v.
Respondent argues that the concern in Vaca that suits against the employer and union be heard together in the same forum is applicable to the hiring hall situation, because any action by petitioner against an employer would be premised not on § 301 but rather on the contention that the employer had knowledge of the union conduct violating § 8(b)(1)(A) and acted on that knowledge in making an employment decision.
This argument misinterprets our reasoning in Vaca. Because a plaintiff must as a matter of logic prevail on his unfair representation allegation against the union in order to excuse his failure to exhaust contractual remedies before he can litigate the merits of his § 301 claim against his employer, we found it “obvious that the courts will be compelled to pass upon whether there has been a breach of the duty of fair representation in the context of many §301 breach-of-contract actions.”
The situation in the instant case is entirely different. In the hiring hall context, the Board may bring a claim alleging a violation of § 8(b)(1)(A) against the union, and a parallel suit against the employer under § 8(a)(3), without implicating the duty of fair representation at all. Or, as in the instant case, an employee may bring a claim solely against the union based on its wrongful refusal to refer him for work. While in Vaca
Federal courts have jurisdiction to hear fair representation suits whether or not they are accompanied by clаims against employers. We have always assumed th%f independent federal jurisdiction exists over fair representation claims because the duty is implied from the grant of exclusive representation status, and the claims therefore “arise under” the NLRA. See, e. g., Tunstall v. Locomotive Firemen & Enginemen,
The concerns that animated our decision in Vaca are equally present in the instant case. The Court of Appeals erred in holding that the District Court was without jurisdiction to hear petitioner’s fair representation claim.
B
Respondent contends that even if jurisdiction in federal court is proper, petitioner has failed to allege a fair representation claim for two reasons.
First, respondent notes that we have interpreted NLRA § 8(a)(3) to forbid employer discrimination in hiring only when it is intended to discriminate on a union-related basis. See, e. g., NLRB v. Brown,
We need not decide the appropriate scope of §§ 8(b)(1)(A) and 8(b)(2) because we reject the proposition that the duty of fair representation should be defined in terms of what is an unfair labor practice. Respondent’s argument rests on a false syllogism: (a) because Miranda Fuel Co., 140 N. L. R. B. 181 (1962), enf. denied,
The duty of fair representation is not intended to mirror the contours of § 8(b); rather, it arises independently from
2
Second, respondent insists that petitioner has failed to state a claim because in the hiring hall setting a union is acting essentially as an employer in matching up job requests with available personnel. Because a union does not “represent” the employees as a bargaining agent in such a situation, respondent argues that it should be relieved entirely of its duty of fair representation.
We cannot accept this proposed analogy. Only because of its status as a Board-certified bargaining representative
In Vaca v. Sipes, supra, for example, we held that a union has а duty of fair representation in grievance arbitration, despite the fact that NLRA § 9(a) expressly reserves the right of “any individual employee or group of employees ... to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect.” The union in Vaca exercised power over grievances because the contract so provided, not because the NLRA required such an arrangement. Hence, the observation that a contract might provide for the operation of a hiring hall directly by a consortium of interested employers rather than a union is irrelevant; the same might have been said about the system for processing grievances in Vaca. In
The union’s assumption in the hiring hall of what respondent believes is an “employer’s” role in no way renders the duty of fair rеpresentation inapplicable. When management administers job rights outside the hiring hall setting, arbitrary or discriminatory acts are apt to provoke a strong reaction through the grievance mechanism. In the union hiring hall, however, there is no balance of power. If respondent is correct that in a hiring hall the union has assumed the mantle of employer, then the individual employee stands alone against a single entity: the joint union/employer. An improperly functioning hiring hall thus resembles a closed shop, “ ‘with all of the abuses possible under such an arrangement, including discrimination against employees, prospective employees, members of union minority groups, and operation of a closed union.’” Teamsters v. NLRB,
I — I 1 — 1 1 — 1
The Court of Appeals rejected petitioner s LMRDA claim on the ground that petitioner had failed to show that he was “otherwise disciplined” within the meaning of LMRDA §§ 101(a)(5) and 609, 29 U. S. C. §§ 411(a)(5) and 529 (1982 ed.). These provisions make it unlawful for a union to “fin[e], suspen[d], expe[l], or otherwise disciplin[e]” any of its members for exercising rights secured under the LMRDA.
In Finnegan v. Leu,
We need not decide the precise import of the language and reasoning of Finnegan, however, because we find that by using the phrase “otherwise discipline,” Congress did not intend to include all acts that deterred the exercise of rights protected under the LMRDA, but rather meant instead to denote only punishment authorized by the union as a collective entity to enforce its rules. “Discipline is the criminal law of union government.” Summers, The Law of Union Discipline, 70 Yale L. J. 175, 178 (1960). The term refers only to actions “undertaken under color of the union’s right to control the member’s conduct in order to protect the interests of the union or its membership.” Miller v. Holden,
Our construction of the statute is buttressed by its structure. First, the specifically enumerated types of discipline-fine, expulsion, and suspension — imply some sort of established disciplinary process rather than ad hoc retaliation
The legislative history supports this interpretation of “disсipline.” Early drafts of § 101(a)(5), for example, contained elaborate lists of “due process protections,” such as the presumption of innocence, venue restrictions, the right to counsel, the right to confront and cross-examine witnesses, and
A forerunner of § 101(a)(5) in the Senate provided criminal penalties for both improper “discipline” by “any labor organization, its officers, agents, representatives, or employees” and the use by “any person ... of force or violence, or . . . economic reprisal or threat thereof, to restrain, coerce, or intimidate, or attempt to restrain, coerce, or intimidate any member of a labor organization for the purpose of interfering with or preventing the exercising by such member of any right to which he is entitled under the provisions of this Act.” S. 1555, as rеported, 86th Cong., 1st Sess., 53 (1959) (emphasis added); see also S. Rep. No. 187, 86th Cong., 1st Sess., 53-54, 94 (1959); 105 Cong. Rec. 15120 (1959) (comments of Sen. Goldwater). Although S. 1555 was not passed in this form by the Senate,
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 his claim under the LMRDA.
We express no view regarding the merits of petitioner’s claim. We hold only that the Court of Appeals erred when it determined that the District Court lacked jurisdiction over the suit, but that the Court of Appeals correctly found that petitioner failed to state a claim under §§ 101(a)(5) and 609 of the LMRDA. We remand the cause for further proceedings consistent with this opinion.
It is so ordered.
Notes
The word “exclusive” when used with respect to job referral systems is a term of art denoting the degree to which hiring is reserved to the union hiring hall. Hiring is deemed to be “exclusive,” for example, if the union, retains sole authority to supply workers to the employer up to a designated percentage of the work force or for some specified period of time, such as 24 or 48 hours, before the employer can hire on his own. See Carpenters, Local 608 (Various Employers), 279 N. L. R. B. 747,754 (1986), enf’d,
Seсtion 8(b)(1)(A) provides that it is an unfair labor practice for a labor organization or its agents to restrain or coerce “employees in the exercise of the rights guaranteed in section 157 of this title [§ 7 of the NLRA]: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.” 29 U. S. C. § 158(b)(1)(A) (1982 ed.). Section 8(b)(2) makes it an unfair labor practice for a labor organization or its agents “to 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.” § 158(b)(2).
The Board has determined that a labor organization that is the statutory collective-bargaining representative of employees utilizing its exclusive hiring hall is barred from using unfair, irrelevant, or invidious considerations in making referrals of such employees. See Journeymen Pipe Fitters, Local No. 392, 252 N. L. R. B. 417, 421 (1980), enf. denied, 712 F.
That the Board has joined an amicus brief supporting petitioner shows that it does not share respondent’s concern that its jurisdiction is being invaded in this case. See Motor Coach Employees v. Lockridge,
“Complexity,” for example, has never prevented us from holding that unions must arbitrate grievances fairly, see Vaca v. Sipes,
We accept respondent’s characterization of the employer’s liability only for the purpose of argument. We note that the Board traditionally had imposed strict liability on an employer party to an exclusive hiring hall, solely on the basis of its being a party to the arrangement and even in the absence of proof that it had knowledge of the union’s discriminatory practices. See Frank Mascali Construction G. C. P. Co., 261 N. L. R. B. 219, 222 (1980), enf’d,
We need not determine whether plaintiffs in petitioner’s position could make out a §301 claim. We simply note that petitioner in his first amended complaint did not allege a breach of contract by any employer.
The development of the law in the § 301 context is not to the contrary. We have recognized that although a § 301 suit against the employer and a fair representation claim against the union are “inextricably interdependent,” United Parcel Service, Inc. v. Mitchell,
Respondent contends that § 8(b)(1)(A) should be construed in pari materia with § 8(b)(2) as requiring a showing of union-related discrimination. See Teamsters v. NLRB,
Similarly, in deciding not to enforce Miranda Fuel, the Second Circuit explicitly rejected a crabbed view of the duty of fair representation and juxtaposed a statement of the narrowness of § 8 with an acknowledgment that the duty of fair representation is a broader concept. See
Respondent’s argument would require us to find that there is no duty of fair representation at all in the hiring hall context; this is a position which cannot be reconciled with numerous decisions of the Courts of Appeals and the NLRB. See, e. g., Lewis v. Local 100, Laborers’ Int’l Union,
It was for this reason that the Board sought in its decision in Mountain Pacific Chapter, Associated General Contractors, 119 N. L. R. B. 883, enf. denied,
The phrase “otherwise disciplin[e]” appears in both §§ 101(a)(5) and 609, and we have already determined that it has the same meaning in both sections. See Finnegan v. Leu,
The Court of Appeals clearly had jurisdiction over the LMRDA claim. See Boilermakers v. Hardeman,
We do not imply that “discipline” may be defined solely by the type of punishment involved, or that a union might be able to circumvent §§ 101 (a)(5) and 609 by developing novel forms of penalties different from fines, suspensions, оr 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 tha Congress meant “discipline” to signify penalties applied by the union in it official capacity rather than ad hoc retaliation by individual union officers
See, e. g., H. R. 4473, 86th Cong., 1st Sess., 12-16 (1959); H. R. 7265, 86th Cong., 1st Sess., 19-20 (1959); S. 1137, 86th Cong., 1st Sess., 11 (1959).
We traced the legislative history of §§ 101(a)(5) and 609 in Hardeman,
We do not pass on petitioner’s claim that certain of his rights secured by thе LMRDA were “infringed” by respondent’s conduct, in violation of § 102, 29 U. S. C. § 412 (1982 ed.), because the claim was neither presented to nor decided by the Court of Appeals below, and thus is not properly before us. See Delta Air Lines, Inc. v. August,
Concurrence Opinion
with whom Justice Scalia joins, concurring in part and dissenting in part.
When school officials inflict corporal punishment on a schoolchild, we speak of the child being “disciplined.”
Title I of the LMRDA, the “Bill of Rights” of labor organizations, “was the product of congressional concern with widespread abuses of power by union leadership.” Finnegan v. Leu,
As a matter of plain language, “discipline” constitutes “punishment by one in authority . . . with a view to correction or training.” Webster’s Third New International Dictionary 644 (1976); see also Random House Dictionary of the English Language 562 (2d ed. 1987) (“punishment inflicted by way of correction and training”); 4 Oxford English Dictionary 735 (2d ed. 1989) (same). Union discipline is thus punishment imposed by the union or its officers “to control the member’s conduct in order to protect the interests of the union or its membership.” Miller v. Holden,
Moreover, as a matter of the statute’s purpose and policy, it would make little sense to exclude the abuse of a hiring hall to deprive a member of job referrals from the type of discipline against which the union member is protected. Congress intended the LMRDA to prevent unions from exercising control over their membership through measures that did not provide adequate procedural protection, “[interference with employment rights constitute^] a powerful tool by which union leaders [can] control union affairs, often in violation of workers’ membership rights.” Vandeventer v. Local Union No. 513, Int’l Union of Operating Engineers,
The Court nonetheless concludes that the denial of hiring hall referrals is not properly attributable to the union and does not constitute discipline within the meaning of the LMRDA. The Court errs in its construction of petitioner’s complaint and in its interpretation of the LMRDA. At this pleading stage, petitioner’s allegations must be accepted as true and his complaint may be dismissed “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spaulding,
The Court states that the discriminatory use of the hiring hall to punish petitioner does not constitute discipline because it is not an “established disciplinary process” or imposed by “any tribunal” or as the result of “any proceeding.” Ante, at 91, 94. But, as Congress was well aware,
Finally, this case is not controlled, as the Court of Appeals concluded, by our decision in Finnegan v. Leu,
“The question presented by this case is far different. Here, participation in the Union’s job referral program is a benefit enjoyed by all members of the Union within the bargaining unit, and the issue is whether withdrawal of the benefit can be deemed ‘discipline’ even though that benefit may also be extended to non-members of the Union. Finnegan’s emphasis on the distinction between union members and union lеaders does not apply to this situation. In fact, the court of appeals’ reliance on language in Finnegan that drew that distinction turns the Court’s approach on its head. Finnegan’s conclusion that the Act did not protect the positions and perquisites enjoyed only by union leaders was surely not intended to narrow the class of benefits, enjoyed by the rank-and-file, that cannot be withdrawn in retaliation for the exercise of protected rights.
“The court of appeals implicitly acknowledged (see Pet. App. A3) that participation in a job referral system limited to union members would be a part of ‘a union member’s rights or status as a member of the union’ (456 U. S. at 437 ). The fact that non-members may be included within the system should not alter that characterization. In either case, when a union member’s removal from or demotion on an out-of-work list is based upon a violation of a union rule or policy, or political opposition to the union’s leadership, the removal or demotion can fairly be characterized as a punitive action taken against the member as a member that sets him apart from other members of the rank-and-file. See id. at 437-438. Moreover, such an action bears enough similarity to the specific disciрlinary actions referred to in Section 609 to fall within the residual category of*102 sanctions — encompassed by the phrase ‘otherwise disciplined’ — that are subject to that provision.”9
Today the Court correctly refuses to adopt the Court of Appeals’ reasoning, but its rationale is just as flawed as that of the Court of Appeals. Retaliation effected through a union job referral system is a form of discipline even if the system is used by nonmembers as well as members and even if the sanction is the result of an ex parte, ad hoc, unrecorded decision by the union.
I respectfully dissent from the Court’s disposition of petitioner’s claim under the Labor-Management Reporting and Disclosure Act of 1959.
See, e. g., Ingraham v. Wright,
See, e. g., Preiser v. Rodriguez,
See Manual for Courts-Martial, United States, 1968, Ch. 26 (detailing forms of nonjudicial disciplinary punishment for minor offenses).
The Court is mistaken in suggesting that the predecessor to § 101 (a)(5), which distinguished between improper discipline imposed by a union and the use of economic reprisal by any person to interfere with the exercise of protected rights, signifies congressional intent that discipline not include economic reprisal. Ante, at 93-94. That provision, which was later embodied in § 61Ó of the Act, is addressed to attempts to interfere with rights protected by the substantive provisions of Title I and not to the arbitrary imposition of discipline at which the procedural provisions were aimed. It does not follow, as the Court seems to assume, that because Congress did not prohibit “all acts that deterred the exercise of rights protected under the LMRDA,” ante, at 91, that it also intended to permit unions to employ this particularly powerful sanction without any procedural safeguards.
Section 101(a)(5), as set forth in 29 U. S. C. § 411(a)(5) (1982 ed.), provides:
“No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.”
Section 609, as set forth in 29 U. S. C. § 529 (1982 ed.), provides:
“It shall be unlawful for any labor organization, or any officer, agent, shop steward, or other representativе of a labor organization, or any employee thereof to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this chapter. The provisions of section 412 of this title shall be applicable in the enforcement of this section.”
Contemporaneous sources are replete with examples of discipline imposed informally and through summary procedures. See, e. g., National Industrial Conference Board, Studies in Personnel Policy, No. 150, Handbook of Union Government Structure and Procedures 71-72 (1955) (“A few unions make specific statements in their constitutions that members are to be disciplined without trial for certain offenses. . . . These unions have a membership of 569,857”); Note, The Power of Trade Unions to Discipline Their Members, 96 U. Pa. L. Rev. 537, 541 (1948) (“[H]earings indicate the existence of physical violence and ‘goon squad’ activity as a less formal means of disciplining opposing factions”).
Indeed, even union officials testified before Congress that union disciplinary methods were informal and discipline was imposed by workers. See, e. g., Hearings on H. R. 3540, H. R. 3302, H. R. 4473, and H. R. 4474 before a Joint Subcommittee of the House Committee on Education and Labor, 86th Cong., 1st Sess., pt. 4, p. 1483 (1959) (testimony of George Meany, President of American Federation of Labor and Congress of Industrial Organizations (AFL-CIO)); see also 105 Cong. Rec. App. 3294 (1959) (AFL-CIO Legislative Department Analysis of Provisions in Senator McClellan’s Amendment) (“Often disciplinary proceedings are usually wholly informal”).
Brief for United States as Amicus Curiae 19-20 (footnote omitted). Most of the Courts of Appeals that have considered the issue have properly concluded that depriving a member of job referrals and other forms of economic reprisals can constitute discipline under the LMRDA. See Guidry v. International Union of Operating Engineers, Local 106,