# Breininger v. Sheet Metal Workers

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## Concurring Opinion

    Stevens
United States Supreme Court
493 U.S. 67
Breininger v. Sheet Metal Workers
Certiorari to the United States Court of Appeals for the Sixth Circuit
No. 88-124 Argued: October 10, 1989 --- Decided: December 5, 1989
Syllabus
Pursuant to a multiemployer collective-bargaining agreement, respondent union operates a hiring hall through which it refers both members and nonmembers for work at the request of employers. The hiring hall is "nonexclusive" in that workers are free to seek employment through other means, and employers are not restricted to hiring persons recommended by the union. Petitioner, a member of the union, filed suit alleging that respondent: (1) violated §§ 101(a)(5) and 609 of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA)-which forbid a union to "fin[e], suspen[d], expe[l], or otherwise disciplin[e]" a member for exercising LMRDA-secured rights-by refusing to refer him through the hiring hall as a result of his political opposition to respondent's leadership; and (2) breached its duty of fair representation under the National Labor Relations Act (NLRA) by discriminating against him in respect to such referrals. The District Court dismissed the suit on the ground that discrimination in hiring hall referrals constitutes an unfair labor practice subject to the exclusive jurisdiction of the National Labor Relations Board (NLRB or Board). The Court of Appeals affirmed, ruling that fair representation claims must be brought before the Board and that petitioner had failed to state a claim under the LMRDA.
Held:
1. The District Court did not lack jurisdiction over petitioner's fair representation suit. Pp. 73-90.
(a) The NLRB does not have exclusive jurisdiction over a union member's claim that his union breached its duty of fair representation by discriminating against him in job referrals made by the union hiring hall. The fact that the alleged violation of respondent's duty of fair representation might also be an unfair labor practice, over which state and federal courts lack jurisdiction under San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779-780, 3 L.Ed.2d 775, did not deprive the District Court of jurisdiction over petitioner's fair representation claim, since Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842, held that Garmon § pre-emption rule does not extend to suits alleging such claims. No exception to the Vaca rule can be created for fair representation complaints arising out of the operation of hiring halls on the ground that the NLRB has developed substantial expertise in dealing with hiring hall policies. Such a rule would remove an unacceptably large number of fair representation claims from federal courts, since the NLRB has developed an unfair labor practice jurisprudence in many areas traditionally encompassed by the duty of fair representation. Decisions of this Court containing language recognizing the need for a single expert federal agency to adjudicate difficult hiring hall problems are distinguished, since those cases focused on whether exclusive hiring halls had encouraged union membership impermissibly as forbidden by the NLRA, rather than on whether unions have administered properly out-of-work lists as required by their duty of fair representation. Also distinguished are the Court's decisions holding that state-court hiring hall suits are pre-empted by NLRB jurisdiction, since state-law claims frequently involve tort, contract, and other substantive areas of law that have developed independently of federal labor law, whereas the duty of fair representation has "judicially evolved" as part of federal labor law and is unlikely generally to create conflicts with the operative realities of federal labor policy. The Court of Appeals' holding that an employee cannot prevail in a fair representation suit against his union if he fails to allege that his employer breached the collective-bargaining agreement constitutes a misstatement of existing law. Although Vaca recognized the desirability of having the same entity adjudicate a joint fair representation/breach-of-contract action, it in no way implied that a fair representation action requires a concomitant claim against the employer. Independent federal-court jurisdiction exists over fair representation claims because the duty of fair representation is implied from the NLRA's grant of exclusive representation status to unions, such that the claims "aris[e] under a[n] Act of Congress regulating commerce" within the meaning of 28 U.S.C. § 1337(a), the pertinent jurisdictional provision. Moreover, a fair representation claim is a separate cause of action from any possible suit against the employer. Thus, this Court declines to adopt a rule that exclusive jurisdiction lies in the NLRB over any fair representation suit whose hypothetical accompanying claim against the employer might be raised before the Board. Pp. 73-84.
(b) Petitioner has not failed to allege a fair representation claim. There is no merit to respondent's contention that it did not breach its duty of fair representation because that duty should be defined in terms of what is an unfair labor practice, and because it committed no such practice since the NLRA forbids only union discrimination based on union membership or lack thereof and not on any other form of maladministration of a job referral system. Equating breaches of the duty of fair representation with unfair labor practices would make the two redundant, despite their different purposes, and would eliminate some of the prime virtues of the fair representation duty-flexibility and adaptability. That duty is not intended to mirror the contours of unfair labor practices, but arises independently in order to prevent arbitrary conduct against individuals deprived by the NLRA of traditional forms of redress against unions. Also without merit is respondent's contention that it should be relieved of its duty of fair representation because, in the hiring hall context, it is acting essentially as an employer in matching up job requests with available personnel and therefore does not "represent" the employees as a bargaining agent. That the particular function of job referral resembles a task that an employer might perform is of no consequence, since the union is administering a provision of the collective-bargaining agreement and is therefore subject to the duty of fair representation. Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 368, 11 L.Ed.2d 370. In fact, if a union assumes the employer's role in a hiring hall, its responsibility to exercise its power fairly increases rather than decreases, since the individual employee then stands alone against a single entity, the joint union/employer. Pp. 84-90.
2. Respondent's alleged refusal to refer petitioner to employment through the union hiring hall as a result of his political opposition to the union's leadership does not give rise to a claim under §§ 101(a)(5) and 609 of the LMRDA. By using the phrase "otherwise discipline," those sections demonstrate a congressional intent to denote only punishment authorized by the union as a collective entity to enforce its rules and not to include all acts that deterred the exercise of LMRDA-protected rights. The construction that 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 is buttressed by the legislative history and by the statute's structure, which specifically enumerates types of discipline-fine, expulsion, and suspension-that imply some sort of established disciplinary process rather than ad hoc retaliation by individual union officers, and which, in § 101(a)(5), includes procedural safeguards designed to protect against improper disciplinary action-"written specific charges," "a reasonable time to prepare a defense," and a "full and fair hearing"-that would apply to the type of procedure encountered in Boilermakers v. Hardeman, 401 U.S. 233, 236-237, 91 S.Ct. 609, 612-613, 28 L.Ed.2d 10, whereby a union imposes "discipline" by virtue of its own authority over its members, and not to instances of unofficial, sub rosa discrimination. Here, the opprobrium of the union as an entity was not visited on petitioner, since he has alleged only that he was the victim of personal vendettas of union officers and not that he was punished by any tribunal or subjected to any proceedings convened by respondent. Pp. 90-94.
849 F.2d 997, (CA 6 1988), affirmed in part, reversed in part, and remanded.
BRENNAN, J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Part III, in which REHNQUIST, C.J., and WHITE, MARSHALL, BLACKMUN, O'CONNOR, and KENNEDY, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which SCALIA, J., joined, post, p. 95.
Francis J. Landry, Toledo, Ohio, for petitioner.
David L. Shapiro, Washington, D.C., for the U.S., as amicus curiae, supporting petitioner, by special leave of Court.
Laurence Gold, Washington, D.C., for respondent.
Justice BRENNAN delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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