REVISED OCTOBER 13, 2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60073

PATRICK SIMMS, 

 Plaintiff - Appellant

v.

LOCAL 1752, INTERNATIONAL LONGSHOREMEN ASSOCIATION,

 Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Mississippi

Before KING, SMITH, and COSTA, Circuit Judges.

KING, Circuit Judge:

Patrick Simms, who is not a union member, was denied referral for 

employment because he refused to pay a fee to use the union’s hiring hall. The 

district court dismissed his suit asserting that the fee was unlawful. We find 

no error and AFFIRM. 

I. FACTUAL AND PROCEDURAL BACKGROUND

As alleged in the complaint, CSA Equipment Company, LLC (“CSA”) and 

Defendant–Appellee International Longshoremen Association Local 1752 

(“Local 1752”) are parties to a collective bargaining agreement, and as part of

United States Court of Appeals

Fifth Circuit

FILED

September 29, 2016

Lyle W. Cayce

Clerk
No. 16-60073

2

this agreement, CSA must hire all of its clerks and other employees through 

the hiring hall operated by Local 1752. “[A]s a condition of obtaining 

employment through [Local 1752’s] hiring hall,” an individual must either be 

a union member or pay a “service fee.” CSA assists in the collection of this fee 

by deducting the amount due from the employee’s paycheck if the employee 

signs a checkoff authorization card. 

Plaintiff–Appellant Patrick Simms works for CSA primarily as a clerk in 

charge and, therefore, is required to use Local 1752’s hiring hall. Simms is not 

a member of Local 1752 and did not make the required payments to Local 1752 

for use of its hiring hall. Local 1752 sent Simms a letter stating, in part, that

“to be in good standing [Simms] must either pay Hiring Hall fees or be a dues 

paying member of one of the Locals,” and since Simms was not a union 

member, he “must make some arrangement with the Hiring Hall and the 

Locals to pay the Hiring Hall fees related to being referred for work.” If Simms 

failed to pay the fees, the letter stated that he would “no longer be able to be 

referred for hire through the Hiring Hall.” 

Simms did not make the required payments, and on May 1, 2015, 

according to Simms’s complaint, “Local 1752 caused CSA to not employ 

Simms.” In other words, Simms would no longer be referred for employment 

with CSA through the hiring hall. Ten days later, however, Simms “sign[ed] 

under protest” an agreement with Local 1752 to pay in installments the 

delinquent fees, allowing him to be referred through the hiring hall once again. 

On October 8, 2015, Simms filed suit against Local 1752 asserting that 

it breached its duty of fair representation; its assessment of mandatory fees to 

Simms, a non-union member, for using the hiring hall was prohibited by 

Mississippi’s right to work law; and the payment agreement was void as 

against public policy for those reasons. On January 8, 2016, the district court 

granted Local 1752’s motion to dismiss. The court held that Simms’s 
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3

allegations were insufficient to state a claim for breach of the duty of fair 

representation, and that Mississippi’s right to work law was preempted by 

federal law “with respect to the issue of requiring non-members to pay hiring 

hall fees.” The court further held that Simms’s claim that the payment 

agreement he had reached with the union was void as against public policy was 

not cognizable because the relevant Mississippi law was preempted by federal 

law. Simms timely appealed. 

II. STANDARD OF REVIEW

This court reviews “a district court’s order on a motion to dismiss for 

failure to state a claim under Rule 12(b)(6) de novo” and “accept[s] ‘all wellpleaded facts as true, viewing them in the light most favorable to the plaintiff.’” 

New Orleans City v. Ambac Assurance Corp., 815 F.3d 196, 199–200 (5th Cir. 

2016) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 

2007)). “Dismissal is appropriate when the plaintiff has not alleged ‘enough 

facts to state a claim to relief that is plausible on its face’ and has failed to 

‘raise a right to relief above the speculative level.’” True v. Robles, 571 F.3d 

412, 417 (5th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 

570 (2007)).

III. MISSISSIPPI’S RIGHT TO WORK LAW

We first turn to Simms’s primary argument that section 14(b) of the 

National Labor Relations Act (“NLRA”), 29 U.S.C. § 164(b), allows enforcement 

of Mississippi’s right to work law, Miss. Code Ann. § 71-1-47,1 thereby 

 

1 While Local 1752 argued in the district court that Mississippi’s right to work law did 

not apply to hiring hall fees regardless of federal preemption, Local 1752 does not make this 

argument on appeal. Section 71-1-47 states, inter alia, the following:

(a) Any agreement or combination between any employer and any labor union 

or labor organization whereby any person not a member of such union or 

organization shall be denied the right to work for an employer, or whereby such 

membership is made a condition of employment or continuation of employment 

by such employer, or whereby any such union or organization acquires an 
No. 16-60073

4

precluding the assessment of hiring hall fees to Simms. “[I]n passing the 

NLRA Congress largely displaced state regulation of industrial relations,” and 

thus, states “may not regulate activity that the NLRA protects, prohibits, or 

arguably protects or prohibits.” Wis. Dep’t of Indus., Labor & Human Relations 

v. Gould Inc., 475 U.S. 282, 286 (1986) (citing San Diego Bldg. Trades Council, 

Millmen’s Union, Local 2020 v. Garmon, 359 U.S. 236 (1959)). Section 14(b), 

however, provides a limited exception: 

Nothing in this subchapter shall be construed as authorizing the 

execution or application of agreements requiring membership in a 

labor organization as a condition of employment in any State or 

Territory in which such execution or application is prohibited by 

State or Territorial law. 

29 U.S.C. § 164(b). According to Simms, Local 1752’s requirement that he pay 

fees for obtaining referrals through the hiring hall amounts to compulsory

union “membership” under section 14(b), and therefore, Mississippi can 

prohibit those fees via its right to work law. Local 1752, however, contends 

that section 14(b) does not apply, and Mississippi’s right to work law is 

therefore preempted under these circumstances.

 

employment monopoly in any enterprise, is hereby declared to be an illegal 

combination or conspiracy and against public policy.

(b) No person shall be required by an employer to become or remain a member 

of any labor union or labor organization as a condition of employment or 

continuation of employment by such employer.

. . .

(d) No employer shall require any person, as a condition of employment or 

continuation of employment, to pay any dues, fees, or other charges of any kind 

to any labor union or labor organization.

(e) Any person who may be denied employment or be deprived of continuation 

of his employment in violation of any paragraph of this section shall be entitled 

to recover from such employer and from any other person, firm, corporation, or 

association acting in concert with him, by appropriate action in the courts of 

this state, such actual damages as he may have sustained by reason of such 

denial or deprivation of employment.

Miss. Code Ann. § 71-1-47. 
No. 16-60073

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At the outset, it is important to describe clearly the scope of several 

allegations in the complaint. First, the only fees at issue are fees assessed to 

Simms, a non-union member, for obtaining referrals through Local 1752’s

exclusive hiring hall. Second, Simms does not allege that these fees were

unreasonable or excessive relative to the costs of operating the hiring hall. 

Instead, Simms’s argument is that, regardless of the amount, all hiring hall 

fees can be prohibited by a state right to work law because payment of those

fees amounts to union “membership” under section 14(b). 

This argument hinges on Simms’s interpretation of how the hiring hall 

fees at issue here fit within two provisions of the NLRA, sections 8(a)(3) and 

14(b), which were first added to the NLRA by the Taft-Hartley Act in 1947.2 It 

is instructive first to review the historical context of the relevant aspects of the 

Taft-Hartley Act. See Commc’ns Workers v. Beck, 487 U.S. 735, 747 (1988) 

(“[T]he structure and purpose of § 8(a)(3) are best understood in light of the 

statute’s historical origins.”). Prior to the Taft-Hartley Act, section 8(a)(3) of 

the NLRA permitted closed shop, union shop, and agency shop agreements. 

Oil, Chem. & Atomic Workers Int’l Union v. Mobil Oil Corp., 426 U.S. 407, 414 

(1976). Generally speaking, a closed shop is a type of union-security agreement 

that requires prospective employees to become union members before

commencing employment. Id. at 409 n.1. In contrast, a union shop, which 

requires employees to join the union after being hired, and an agency shop, 

which requires employees to make payments to the union after being hired but 

not to join the union, are less stringent types of union-security agreements. 

See id. “By 1947, [closed shops] had come under increasing attack,” and 

Congress determined that they should be banned. Beck, 487 U.S. at 748. That 

 

2 Labor Management Relations (Taft-Hartley) Act, ch. 120, sec. 101, §§ 8(a)(3), 14(b), 

61 Stat. 136, 140–41, 151 (1947) (codified at 29 U.S.C. §§ 158(a)(3), 164(b)).
No. 16-60073

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being said, Congress also recognized that prohibiting closed shops could create 

a free rider problem—i.e., employees choosing not to contribute financially to 

the union but still benefiting from the union’s actions. See id. 

Against this historical backdrop, section 8(a)(3) of the Taft-Hartley Act 

attempted to accomplish the “twin purposes” of eliminating “the most serious 

abuses of compulsory unionism . . . by abolishing the closed shop” but still 

allowing certain union-security agreements to counter the free rider problem. 

NLRB v. Gen. Motors Corp., 373 U.S. 734, 740–41 (1963). Specifically, section 

8(a)(3) “makes it an unfair labor practice for an employer ‘by discrimination in 

regard to hire or tenure of employment . . . to encourage or discourage 

membership in any labor organization.’” Beck, 487 U.S. at 744 (quoting 29 

U.S.C. § 158(a)(3)). While this would appear to bar any union-security 

agreement, section 8(a)(3) also contains a proviso that allows unions to require 

“membership” as a condition of employment thirty days after the beginning of 

employment so long as the following safeguards are met:

[N]o employer shall justify any discrimination against an 

employee for nonmembership in a labor organization (A) if he has 

reasonable grounds for believing that such membership was not 

available to the employee on the same terms and conditions 

generally applicable to other members, or (B) if he has reasonable 

grounds for believing that membership was denied or terminated 

for reasons other than the failure of the employee to tender the 

periodic dues and the initiation fees uniformly required as a 

condition of acquiring or retaining membership . . . .

29 U.S.C. § 158(a)(3); see also Beck, 487 U.S. at 744–45. “Taken as a whole, 

§ 8(a)(3) permits an employer and union to enter into an agreement requiring 

all employees to become union members as a condition of continued 

employment, but the ‘membership’ that may be so required has been ‘whittled 

down to its financial core.’” Beck, 487 U.S. at 744–45 (footnote omitted) 

(quoting Gen. Motors, 373 U.S. at 742). 
No. 16-60073

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“While § 8(a)(3) articulates a national policy that certain union-security 

agreements are valid as a matter of federal law, § 14(b) reflects Congress’ 

decision that any State or Territory that wishes to may exempt itself from that 

policy.” Oil, Chem. & Atomic Workers, 426 U.S. at 416–17. As explained by 

the Supreme Court, section 14(b) “was designed to prevent other sections of 

the Act from completely extinguishing state power over certain union-security 

arrangements. And it was the proviso to § 8(a)(3), expressly permitting 

agreements conditioning employment upon membership in a labor union, 

which Congress feared might have this result.” Retail Clerks Int’l Ass’n, Local 

1625 v. Schermerhorn, 373 U.S. 746, 751 (1963) (footnote omitted); see also 

Laborers’ Int’l Union, Local No. 107 v. Kunco, Inc., 472 F.2d 456, 458 (8th Cir. 

1973) (“This statute can best be described as an exception to the general rule

that the federal government has preempted the field of labor relations 

regulation.”). However, “[s]ince § 8(a)(3) already prohibits the closed shop, the 

more restrictive policies that § 14(b) allows the States to enact relate not to the 

hiring process but rather to conditions that would come into effect only after

an individual is hired.” Oil, Chem. & Atomic Workers, 426 U.S. at 417. 

With this statutory framework in mind, we turn to the primary issue in 

this case and conclude that section 14(b) does not allow Mississippi to prohibit 

unions from requiring non-union members to pay a hiring hall fee. Therefore, 

Mississippi’s right to work law, Miss. Code Ann. § 71-1-47, is preempted by 

federal law to the extent that it prohibits non-union members from being 

required to pay hiring hall fees. We further agree with the district court that 

this ruling does not invalidate Mississippi’s right to work law in its entirety, 

but rather only insofar as it could be interpreted as prohibiting unions from 

requiring non-union members to pay a hiring hall fee.

For nearly 70 years after the NLRA was amended by the Taft-Hartley 

Act, courts have consistently treated hiring halls as being distinct from union-
No. 16-60073

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security agreements generally. An exclusive hiring hall is not per se illegal 

under the NLRA, and it only becomes illegal if it operates in a discriminatory

manner. See Local 357, Int’l Bhd. of Teamsters v. NLRB, 365 U.S. 667, 673–

74 (1961). While the existence of an exclusive hiring hall may encourage union 

membership, section 8(a)(3) “does not outlaw all encouragement or 

discouragement of membership in labor organizations; only such as is 

accomplished by discrimination is prohibited.” Id. at 674–76 (quoting Radio 

Officers’ Union of Commercial Telegraphers Union v. NLRB, 347 U.S. 17, 42–

43 (1954)). 

Moreover, it is settled law that hiring halls can require non-union 

members to pay a reasonable fee related to the costs of operating the hiring 

hall. See, e.g., Pittsburgh Press Co. v. NLRB, 977 F.2d 652, 657 (D.C. Cir. 1992) 

(“Congress, the Supreme Court, and the NLRB thus agreed on the basic 

principles of a legitimate hiring hall for which nonunion workers could be 

charged a fee by the union . . . .”); NLRB v. Hous. Maritime Ass’n, 337 F.2d 333, 

336 (5th Cir. 1964) (“Reasonable and nondiscriminatory charges for the union’s 

referral services were legal.”).3 This stands in contrast to union-security 

agreements, which constitute illegal discrimination under the NLRA unless 

they satisfy section 8(a)(3)’s proviso. See Beck, 487 U.S. at 744 (“[Section 

8(a)(3)] contains two provisos without which all union-security clauses would 

fall within this otherwise broad condemnation . . . .”). 

And this distinction makes sense. Hiring halls serve a unique purpose, 

one in which the union can act as an employment agency or referral system for 

the employer, benefiting all of the parties involved. See Pittsburgh Press, 977 

F.2d at 657 (comparing the original hiring hall with its modern day attributes); 

 

3 Conversely, an unreasonable or excessive hiring hall fee assessed to non-union 

members can constitute an unfair labor practice. See, e.g., NLRB v. Local 138, Int’l Union of 

Operating Eng’rs, 385 F.2d 874, 877–78 (2d Cir. 1967).
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Local 357, 365 U.S. at 673–74 (“Senator Taft made clear his views that hiring 

halls are useful, that they are not illegal per se, that unions should be able to 

operate them so long as they are not used to create a closed shop . . . .”). For 

example, as part of a hiring hall, “[a] union may . . . employ its facilities, its 

phone lines, its network for identifying and recruiting workers, its judgment 

and expertise in matching a worker’s skills with a particular job, or its 

members’ time and effort in building and maintaining a job referral system.” 

Pittsburgh Press, 977 F.2d at 661. This distinction is why, unlike a unionsecurity agreement, no court that we are aware of, and Simms has pointed to 

none, has held that referral fees assessed to non-union members for use of a 

hiring hall can be prohibited under a state right to work law. Put another way,

while a union-security agreement can amount to union “membership” under 

section 14(b), requiring a non-union member to pay a reasonable referral fee 

for the use of an exclusive hiring hall does not. 

Indeed, more than fifty years ago this court held that section 14(b) does 

not apply to hiring halls. NLRB v. Hous. Chapter, Associated Gen. Contractors, 

Inc., 349 F.2d 449, 453 (5th Cir. 1965) (“[T]he long and short of the matter is 

that § 14(b) contemplates only those forms of union security which are the 

practical equivalent of compulsory unionism.”); see also Kunco, 472 F.2d at 

458–59; NLRB v. Tom Joyce Floors, Inc., 353 F.2d 768, 771 (9th Cir. 1965). 

Contrary to Simms’s position, assessing a fee to non-union members for use of 

a hiring hall does not distinguish the instant case from this precedent. It is 

settled law that, under the NLRA, exclusive hiring halls can assess non-union 

members a reasonable fee for the costs of operating the hiring hall. Such a fee 

does not constitute union “membership” under section 14(b), and this

conclusion is reinforced by the fact that this fee relates to pre-hire rather than 

post-hire conduct. See Oil, Chem., & Atomic Workers, 426 U.S. at 417 (“It is 

evident, then, that § 14(b)’s primary concern is with state regulation of the 
No. 16-60073

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post-hiring employer-employee-union relationship.”); see also Int’l Union of the 

United Ass’n of Journeymen & Apprentices of the Plumbing and Pipefitting 

Indus. v. NLRB, 675 F.2d 1257, 1262 (D.C. Cir. 1982) (“Use of a hiring hall 

precedes hiring, and therefore does not constitute ‘membership’ under 

§ 14(b).”). We reject Simms’s contention that the fact that the fees here were 

supposed to be collected at a later date via deductions from Simms’s paycheck 

(rather than prior to the referral) transforms this into post-hire conduct. 

Simms points to Beck in support of his argument that the mandatory 

payment of any fee to a union constitutes “membership” for the purposes of 

sections 8(a)(3) and 14(b). By this reasoning, Simms concludes that the hiring 

hall fee assessed in the instant case is either illegal under the NLRA or allowed 

under section 8(a)(3)’s proviso and, therefore, can be banned under 

Mississippi’s right to work law. But Beck does not support this argument.4 

Beck concerned a union-security agreement—not a hiring hall—and these are 

treated distinctly under the NLRA.5 As discussed above, unions may require 

non-union members to pay a reasonable fee for the use of an exclusive hiring 

hall without violating the NLRA. Simply put, Beck does not dictate that the 

hiring hall fees assessed to Simms amount to union “membership” under 

section 14(b).

 

4 Taking Simms’s argument to its logical conclusion, if a hiring hall fee were required 

to satisfy section 8(a)(3)’s proviso to be lawful, then a hiring hall fee assessed at the time of 

referral would not be lawful under the NLRA. Part of the proviso mandates that union 

“membership” must not be required until at least 30 days after employment, which would be 

violated by a hiring hall fee that is assessed when the employee is first referred. In other 

words, Simms’s argument would in effect treat hiring halls that charge non-union members 

a reasonable fee the same as closed shops, which is not the case under the NLRA. 

5 For similar reasons, Simms’s reliance on Sweeney v. Pence, 767 F.3d 654 (7th Cir. 

2014), is misplaced. 
No. 16-60073

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IV. THE DUTY OF FAIR REPRESENTATION

Simms also fails to allege sufficient facts to state a cognizable claim for 

breach of the duty of fair representation. Under the NLRA, unions have a duty 

of fair representation “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.” Breininger v. Sheet Metal 

Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67, 73 (1989) (quoting Vaca v. 

Sipes, 386 U.S. 171, 177 (1967)). This duty extends to exclusive hiring halls

and is violated when a union’s actions are “arbitrary, discriminatory, or taken 

in bad faith.” Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 388 (2d Cir. 2015) 

(citing Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 67 (1991)); see also Milright 

& Mach. Erectors, Local Union 720 v. NLRB, 798 F.2d 781, 784 (5th Cir. 1986) 

(“We have interpreted the duty of fair representation to mean that a union 

operating an exclusive hiring hall ‘may not apply arbitrary or invidious criteria 

in referring employees to jobs.’” (quoting Int’l Union of Operating Eng’rs Local 

406 v. NLRB, 701 F.2d 504, 508 (5th Cir. 1983))).6

Simms, however, does not allege any conduct by Local 1752 that was 

arbitrary, discriminatory, or done in bad faith. Simms’s only allegation on this 

point can be summarized as the following: he has to pay fees to Local 1752 for 

use of its hiring hall, and if he does not pay those fees, the hiring hall will stop 

referring him and he will not be able to obtain employment with CSA. This 

allegation, however, is insufficient to state a claim for breach of the duty of fair 

 

6 Because Simms has only alleged that the mere fact that a fee was assessed to nonunion members was a breach of the duty of fair representation, we need not address whether 

exclusive hiring halls require a heightened duty of fair representation. See Bowerman v. Int’l 

Union, United Auto., Aerospace & Agric. Implement Workers of Am., Local No. 12, 646 F.3d 

360, 368–69 (6th Cir. 2011) (discussing how the Ninth and D.C. Circuits have applied a 

heightened standard to hiring halls but that a previous panel on the Sixth Circuit had not). 

Simms would also fail to allege a cognizable claim under a heightened standard.
No. 16-60073

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representation. As discussed above, an exclusive hiring hall can legally require 

non-union members to pay a reasonable fee, see, e.g., Pittsburgh Press, 977 F.2d 

at 657. Simms does not allege that the amount of the fee was unreasonable, 

relying instead only on the fact that a fee was assessed at all. Nor does Simms 

make any other relevant allegations about the hiring hall’s criteria or 

procedures. Simms’s argument that any hiring hall fee assessed to non-union 

members breaches the duty of fair representation is contrary to settled law, 

and once again, his reliance on Beck is unavailing given that Beck did not 

concern a hiring hall.7

V. CONCLUSION

For the foregoing reasons, the judgment of the district court is 

AFFIRMED.

 

7 Simms does not otherwise advance an argument on appeal that the payment 

agreement he reached with Local 1752 was void as against public policy. Even if he did, we 

agree with the district court that this claim is not cognizable given that Simms cannot state 

a claim under Mississippi law based on the required fees at issue here.