Lydon v. Local 103, International Brotherhood of Electrical Workers

United States Court of Appeals
For the First Circuit

No. 13-2009

BRENDON J. 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

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Howard and Thompson, Circuit Judges,
and Laplante, District Judge.*

George P. Fisher, with whom Susan E. Stenger and Burns &
Levinson LLP were on brief, for appellant.
Indira Talwani, with whom Ira Sills, Kevin C. Merritt, and
Segal Roitman, LLP were on brief, for appellee.

October 24, 2014

*
Of the District of New Hampshire, sitting by designation.
 THOMPSON, Circuit Judge.

Overview

Brendon Lydon believes that his union — Local 103 of the

International Brotherhood of Electrical Workers ("Local 103") —

runs its hiring hall in a discriminatory way, retaliated against

him for complaining about the discrimination, and breached its duty

of fair representation. So he sued Local 103 in district court,

alleging violations of several federal labor laws. Acting on a

motion to dismiss, the district judge resolved the case in Local

103's favor. Lydon appeals. And what follows is our explanation

of why we must affirm.

Background

Because the judge jettisoned the case on a motion to

dismiss, we accept the well-pleaded facts in the operative

complaint as true, construing them in the light most favorable to

Lydon as the nonmoving party. See, e.g., Schatz v. Republican

State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). Of

course, we can supplement these facts with "implications from

documents" incorporated by reference into the complaint, "facts"

subject "to judicial notice," and "concessions in plaintiff's

response to the motion to dismiss." Id. at 55-56 (internal

quotation marks and footnote omitted).

At all times relevant here, Lydon has been a member of

Local 103, the chartered local of the International Brotherhood of

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Electrical Workers ("IBEW"1). The IBEW makes and enforces rules

governing how locals carry out union activity. For example, the

IBEW publishes what is called a "Pattern Agreement" — a document

that sets minimum standards for agreements locals make with their

counterparts on the employer side of the employment divide, namely,

the local chapters of the National Electrical Contractors

Association ("NECA"). Any departure from the pattern agreement's

terms requires IBEW-approval.2 The IBEW's constitution says pretty

much the same thing.3 But the IBEW withholds approval if the

agreement differs from "Category I Language" in the pattern

1
This is just the first of many acronyms to come. The reader
has our apologies.
2
The pattern agreement provides:

This Agreement shall be subject to change or supplemented
at any time by mutual consent of the parties hereto. Any
such change or supplement agreed upon shall be reduced to
writing, signed by the parties hereto, and submitted to
the International Office of the IBEW for approval, the
same as this Agreement.
3
The constitution declares:

[Local unions] are empowered to make their own bylaws and
rules, but these shall in no way conflict with this
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 [IBEW] for approval. No [local
union] shall put into effect any bylaw, amendment, rule
or agreement of any kind without first procuring such
approval. The [IBEW] has the right to correct any
bylaws, amendments, rules or agreements to conform to
this Constitution and the policies of the [IBEW]. . . .

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agreement.4 An example of Category I Language, Lydon says, is the

pattern agreement's requirement that locals operate as exclusive

hiring halls. A hiring hall is like an employment agency.5 And

the adjective "exclusive" means an employer (like the NECA) must

hire only through the hall.6

The collective-bargaining agreement ("CBA") between Local

103 and the Boston NECA chapter also stated that Local 103 is an

exclusive hiring hall. And for a time Local 103 did in fact

function as an exclusive hall, keeping a list of out-of-work

members looking for jobs and referring them to the NECA in

chronological order (i.e., with the person on the list the longest

4
"Category I provisions," the pattern agreement states,

are considered Standard Agreement Language by the IBEW
International Office and NECA National. By joint
recommendation and in written agreement, all Inside
Construction Agreements between IBEW Local Unions and
NECA chapters must contain all Category I Language
verbatim, i.e. no deviations or changes to these clauses
are permitted. Likewise, the agreement may not contain
language that is contrary to the intent of the Category
I language or circumvent provisions contained in the
Category I language that pertains to but does not
conflict with the Category I language. Additional
language that pertains to but does not conflict with
Category I language may follow the language, but is not
to be inserted in the language. . . .

(Emphasis in original.)
5
See Local 357, Int'l Bhd. of Teamsters, Chauffeurs,
Warehousemen & Helpers of Am. v. NLRB, 365 U.S. 667, 672-73 (1961).
6
Local 103 "shall be the sole and exclusive source of
referral of applicants," the pattern agreement says.

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getting first dibs on an available NECA job). Members are not

required to accept whatever job referral comes their way. But if

they say no more than two times in a row, they are "rolled" back to

the bottom of the referral list.

A change occurred in September 2006 when Local 103 and

the Boston NECA chapter signed a memorandum of understanding

("MOU") allowing union members to get jobs another way as well:

thanks to the MOU, members could now solicit work directly from

Boston NECA employers. This change made Local 103 a nonexclusive

hiring hall. So said Local 103's business manager, Mike Monahan.

Local 103 implemented the MOU without first getting IBEW approval

— such approval was not necessary, Monahan told members at a

membership meeting.

Lydon asked Local 103 for a copy of the MOU. But his

request fell on deaf ears. So he turned things up a notch, writing

a letter to the IBEW's president complaining about the solicitation

system. And he followed that up with a formal complaint with the

IBEW's vice president. But the IBEW took no action.

In August 2011 Local 103 and the Boston NECA chapter

agreed to a new CBA. Local 103 then sent that document to the IBEW

for approval, along with the MOU. Eventually, Lydon got a letter

from the IBEW's president saying that the IBEW had "conditionally

approved" the CBA. The letter, however, did not mention the MOU or

the solicitation system.

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 Sometime before August 2011, Lydon signed onto something

called the "Drug Free Program" — a Local 103/Boston NECA program

through which members can land jobs with participating employers if

they submit to drug testing. But he opted out of the program

around the time Local 103 and the Boston NECA reached the new CBA.

His reason for doing so was that he had a good spot on the referral

list seniority-wise to land a long-term construction job set to

open up — a job that did not have a drug-testing component,

apparently. Local 103 never got his opt-out information, however,

for reasons unknown. And Local 103 later counted his refusal to

work for a drug-free employer as his third refusal — even though he

was no longer participating in that program. So he ended up back

on the bottom of the referral list.

An unhappy Lydon challenged the refusal rule's

application to his situation. But Monahan — the person who handled

the challenge — would not change the result. "Lydon appealed but

was denied," his complaint says — though he does not say there who

did the denying. Anyway, Lydon claims that during this same period

Monahan told another member appealing a similar decision that the

solicitation system was in place because there were "undesirables"

like "Lydon" in Local 103. He also told the member "that if your

being rolled hadn't happened at the time Lydon was rolled, things

could have been different."

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 Lydon responded by filing charges against the IBEW with

the National Labor Relations Board ("NLRB"), alleging that the IBEW

had breached its duty of fair representation both by not disclosing

requested information about the referral rule and by not

representing him regarding referral issues. But the NLRB concluded

that he had not shown an unfair-labor practice on the IBEW's part.

So off to federal court he went.

Suing Local 103, Lydon's operative complaint — simply

called "the complaint" from now on — has four counts. Count 1

alleges that Local 103 infracted the pattern agreement and the

IBEW's constitution when it became a nonexclusive hiring hall — a

change, count 1 claims, that discriminatorily favors members who

solicit work over those who (like him) await referrals through the

referral list. What Local 103 has done and is doing, count 1 says,

constitutes an unfair-labor practice as defined in the National

Labor Relations Act ("NLRA"), see 29 U.S.C. § 158, violating the

Labor-Management Relations Act ("LMRA"), see 29 U.S.C. § 185 et

seq. Count 2 contends that Local 103 retaliated against him for

complaining about the new worker-dispatch system, a violation of

the Labor-Management Reporting and Disclosure Act ("LMRDA"), see 29

U.S.C. § 401 et seq., count 2 adds.7 Count 3 charges that Local

7
A quick "fyi": Congress passed the NLRA in 1935 but amended
it in 1947 by enacting the LMRA and amended it again in 1959 by
passing the LMRDA. See, e.g., Paige v. Henry J. Kaiser Co., 826
F.2d 857, 862 n.8 (9th Cir. 1987).

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103 breached its duty of fair representation by bargaining for the

solicitation system, a system that flies in the face of IBEW rules

and that Local 103 runs in a discriminatory manner, or so count 3

insists. And finally, count 4 asserts a class-action claim under

count 1.

Local 103 later asked the judge to dismiss the complaint

under Fed. R. Civ. P. 12(b)(6) or, alternatively, to resolve the

case on summary judgment under Fed. R. Civ. P. 56. The judge

granted a Rule 12(b)(6) dismissal, holding that Lydon's complaint

failed to allege a plausible theory of relief. And that ruling

triggered this appeal.

Standard of Review

We give fresh review to the judge's Rule 12(b)(6)

decision, affirming if — after accepting as true all well-pled

facts in the complaint and drawing all reasonable inferences in

Lydon's favor — the complaint fails to state a plausible claim.

See, e.g., Schatz, 669 F.3d at 55. Merely reciting elements of a

claim will not do, obviously. See, e.g., Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). Nor will alleging facts that "are too

meager, vague, or conclusory to remove the possibility of relief

from the realm of conjecture . . . ." SEC v. Tambone, 597 F.3d

436, 442 (1st Cir. 2010). One more thing: because the judge's

reasoning does not bind us, we are free to affirm his decision on

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any basis supported by the record and the law. See, e.g., Rocket

Learning, Inc. v. Rivera-Sánchez, 715 F.3d 1, 8 (1st Cir. 2013).

With this discussion out of the way, we turn to the

issues before us.

Documents Not Considered

Kicking things off, Lydon argues in his opening brief

that the judge abused his discretion by not considering "numerous

declarations, documents, and otherwise useful information in

opposition" to Local 103's motion to dismiss or for summary

judgment. On a motion to dismiss, he reminds us, quoting from one

of our cases, a judge can mull over "documents incorporated by

reference in [the complaint], matters of public record, and other

matters susceptible to judicial notice." Giragosian v. Ryan, 547

F.3d 59, 65 (1st Cir. 2008) (quoting In re Colonial Mortg. Bankers

Corp., 324 F.3d 12, 20 (1st Cir. 2003)). The problem for Lydon is

that his initial brief never specifically identifies the "numerous"

papers that the judge should have pondered but did not. And it

never explains how these unnamed documents fit within the

parameters of Giragosian, let alone explain how they could have

pushed his complaint across the plausibility threshold. Given

these circumstances, we hold the argument waived. See, e.g., HSBC

Realty Credit Corp. (USA) v. O'Neill, 745 F.3d 564, 577 (1st Cir.

2014) ("HSBC," from here on out) (stressing that arguments "not

developed in a party's opening brief are waived").

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 Count 1:
The LMRA Claim

Disagreeing with the judge, Lydon insists that he alleged

enough to propel his count-1 LMRA claim past mere possibility

toward plausibility. That count, we remind the reader, complains

that the solicitation system violated the pattern agreement and the

IBEW constitution, and operates in a discriminatory fashion to

boot. Local 103's actions flout section 185(a) of the LMRA and

section 158(b)(2) of the NLRA, count 1 suggests. But unfortunately

for Lydon, there is a subject-matter-jurisdiction problem knocking

about here.

As relevant to our decision, section 185(a) of the LMRA

empowers district courts to hear suits for breach of contract

between two labor organizations.8 See Wooddell v. Int'l Bhd. of

Elec. Workers, Local 71, 502 U.S. 93, 95, 98-101 (1991). An

international's constitution is a contract between two labor

organizations, the international and its local — that is what our

8
Section 185(a) — titled "Venue, amount, and citizenship" —
reads:

Suits for violation of contracts between an employer
and a labor organization representing employees in an
industry affecting commerce as defined in this chapter,
or between any such labor organizations, may be brought
in any district court of the United States having
jurisdiction of the parties, without respect to the
amount in controversy or without regard to citizenship of
the parties.

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judicial superiors tell us. See id.9 And members can sue to

enforce the contract/constitution as third-party beneficiaries.

See, e.g., Wooddell, 502 U.S. at 100-01. To be fair, count 1's

LMRA claim does allege violations of the IBEW constitution. But —

and it is a big "but" — Lydon makes no effort in his brief to flesh

out a putative Wooddell claim, supplying no argument or authority,

for example, suggesting how or why that claim might work. So to

the extent he could have made such claim, it is waived. See, e.g.,

HSBC, 745 F.3d at 577.

Wait, says Lydon, in a post-argument letter, count 1's

LMRA claim clearly mentions how Local 103's unfair labor practices

discriminated against those who only use the referral system.

True, count 1 does indeed say that. And we also agree with him

that a union commits an unfair labor practice under section 158

when it causes an employer to discriminate in hiring, tenure, or

terms of employment either to encourage or discourage union

membership. See 29 U.S.C. § 158(b)(2), (a)(3). But the NLRB — not

the courts — has "primary jurisdiction" over an "action that is

arguably subject" to section 158. Marquez v. Screen Actors Guild,

525 U.S. 33, 49 (1998) (internal quotation marks omitted). That

said, an unfair-representation claim — which targets discriminatory

9
See also United Ass'n of Journeymen & Apprentices of
Plumbing & Pipefitting Indus. of U.S. & Canada, AFL-CIO v. Local
334, United Ass'n of Journeymen & Apprentices of Plumbing &
Pipefitting Indus. of U.S. & Canada, 452 U.S. 615, 620-23 (1981).

-11-
or arbitrary conduct, see Hines v. Anchor Motor Freight, Inc., 424

U.S. 554, 570 (1976) — "is cognizable in the first instance in

federal court." Marquez, 525 U.S. at 49. And generously read, the

discrimination allegations in count 1's LMRA claim basically mimic

the discrimination allegations in count 3's unfair-representation

claim. So we can consider count 1's discrimination charges to the

extent they sync up with count 3's unfair-representation

accusations. And we will do just that shortly when we take on

count 3. But first we must deal with count 2.

Count 2:
The LMRDA Claim

Lydon believes the judge missed the boat by ruling he had

no LMRDA claim under count 2. That count — the reader will recall

— alleged that Local 103 "disciplined" him within the meaning of

the LMRDA by dropping him to the bottom of the referral list in

retaliation for his complaining to the IBEW about the solicitation

system. We find no fault with the judge's conclusion, however.

Among its constellation of provisions, the LMRDA

guarantees free-speech rights to "[e]very member of a labor

organization," see 29 U.S.C. § 411(a)(2); makes it illegal for a

union "to fine, suspend, expel, or otherwise discipline any of its

members for exercising any right to which he is entitled," see id.

§ 529 (emphasis added); and permits civil actions to protect his

rights, see id. § 412. Critically for our purposes, "discipline"

does not "include all acts that deter[] the exercise of rights

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protected under the LMRDA"; rather it "denote[s] only punishment

authorized by the union as a collective entity to enforce its

rules." Breininger v. Sheet Metal Workers Int'l Ass'n Local Union

No. 6, 493 U.S. 67, 91 (1989). Discipline, then, "signif[ies]

penalties applied by the union in its official capacity rather than

ad hoc retaliation by individual union officers." Id. at 92 n.15.

So to state a claim a plaintiff cannot allege simply that "union

officers" carried out "personal vendettas" against him, id. at 94

— no, he must allege that he experienced "[t]he opprobrium of the

union as an entity," id., with the retaliation resulting from an

"established disciplinary process," id. at 91.

None of Local 103's alleged conduct amounts to

"discipline," so defined. Yes, a loss of job referrals may

possibly be discipline if "imposed" by a union on a member "to

punish a violation of union rules." Id. at 92 n.15. And yes,

Lydon butted heads with Monahan — the Local 103 business manager

who, remember, both upheld the three refusals in Lydon's case and

allegedly said the solicitation system kept "undesirables" like

Lydon from getting jobs. But nothing Monahan supposedly did or

said involved punishment "by the union as a collective entity" or

"in its official capacity," to use Breininger's parlance. Sure,

the complaint accuses Monahan of using his union position to

retaliate against Lydon for complaining about the solicitation

scheme. And from that allegation he asks us to conclude that

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Monahan's actions brought the union's "opprobrium" on him. But

this we cannot do, for an obvious reason: if every union

official's action constituted union action simply because of his

position, then the distinction between "ad hoc retaliation by

individual union officers" and discipline "imposed by the union as

an entity" would vanish. See id. at 92 n.15.

Perhaps sensing a grave problem with count 2's theory,

Lydon says in his opening brief that a "union tribunal" called the

"Appeals Committee" — of which Monahan was a member, apparently —

actually upheld the three refusals. And — the argument continues

— because the Appeals Committee wielded "the full weight of Local

103's power," the union really disciplined Lydon. But his

complaint itself never mentions the Appeals Committee, much less

allege how much union authority the Committee wields. So his

argument does him no good.

Bottom line: Lydon has issues with Monahan, certainly.

And his complaint is thick with personal-vendetta allegations. But

he alleges no facts plausibly suggesting action by the union as an

entity, to say nothing of union action resulting from an

established disciplinary process. Cf. Linnane v. Gen. Elec. Co.,

948 F.2d 69, 72 (1st Cir. 1991) (finding no discipline for LMRDA

purposes where plaintiff did not allege "that the Union as a body

in a proceeding formal or informal, deliberately voted" to take the

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complained-of action). Ultimately, then, count 2 fails the

plausibility test.

Count 3:
The Fair-Representation Claim

Lastly, Lydon asks us to undo the judge's decision

dismissing the fair-representation claim in count 3. As a

refresher, that count accuses Local 103 first of bargaining for a

solicitation system that does not jibe with IBEW rules and then of

arbitrarily favoring members who use that system over those who

don't.10 But after working our way through the law and the

allegations, we uphold the judge's ruling.

The duty of fair representation requires a union to serve

its members "honestly and in good faith and without invidious

discrimination or arbitrary conduct." Hines, 424 U.S. at 570. A

judge-made doctrine, see Breininger, 493 U.S. at 79, the duty

applies to "all union activity," including the union's hiring-hall

operations, see Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S.

65, 67, 77 (1991) ("O'Neill," going forward). A breach occurs when

a union treats its members arbitrarily, discriminatorily, or in bad

faith. See, e.g., Marquez, 525 U.S. at 44. Focusing — as the

parties basically do — on arbitrariness, we see that a union's

conduct is arbitrary only if it "is so far outside a wide range of

10
The "arbitrarily favoring" allegation here essentially
mirrors the allegation in count 1. And again, jurisdictionally
speaking, we can and do consider both allegations in deciding
whether Local 103 breached its fair-representation duty.

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reasonableness . . . as to be irrational," O'Neill, 499 U.S. at 67

(internal quotation marks and citation omitted) — i.e., only if it

is without any "rational basis or explanation," Marquez, 525 U.S.

at 46. That is a pretty high standard, indeed.

Trying to squeeze his case into this framework, Lydon

first plays up how count 3 alleges Local 103's irrationality in

negotiating a solicitation system that is 180 degrees away from

what the IBEW requires. IBEW rules, he argues, require that Local

103 run an exclusive hiring hall. Yet the MOU between Local 103

and the Boston NECA turned the hall into a nonexclusive one.

Here is the problem, however. A "hiring hall," the high

Court tells us, "is a matter of negotiation between the parties."

Local 357, Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen &

Helpers of Am. v. NLRB, 365 U.S. 667, 676 (1961). Negotiation is

the art of compromise, obviously, and human nature being what it

is, not every member will love every compromise. Cf. Rakestraw v.

United Airlines, Inc., 981 F.2d 1524, 1539-30 (7th Cir. 1992)

(Easterbrook, J.) (commenting that "[o]ften unions can achieve more

for some of their [members] only by accepting less for others").

But as the members' bargaining representative, Local 103 enjoys

"great" discretion in resolving the "competing interests" of its

constituents, see Humphrey v. Moore, 375 U.S. 335, 349-50 (1964) —

which means judicial review is "highly deferential," precluding

judges from second-guessing the union's judgment just for the sake

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of it, See O'Neill, 499 U.S. at 78 (stressing that courts must

respect "the wide latitude that negotiators need for effective

performance of their bargaining responsibilities"). Now, Lydon

does argue in his initial brief that Local 103's negotiated

solicitation system represents the height of arbitrary action —

because, the theory goes, the system clashes with IBEW rules. But

he cites no authority indicating that a local's decision not to

follow its international's preferred referral system falls outside

the generous range of reasonableness it has to strike a balance

between competing interests when bargaining with employers. Nor

does he offer a convincing explanation of what the law should be in

this situation, assuming he unearthed no on-point authority.11 And

having been raised "in a skeletal form, without citation to any

pertinent authority," the argument is waived. See Muñiz v. Rovira,

373 F.3d 1, 8 (1st Cir. 2004); accord Medina-Rivera v. MVM, Inc.,

713 F.3d 132, 140-41 (1st Cir. 2013).

Turning then to the second part of Lydon's fair-

representation argument — that the solicitation system arbitrarily

discriminates among members — his theory essentially proceeds in

four steps. Step one: "The MOU apparently allow[s] an exception

to the CBA," he writes, "so that union members [can] solicit

11
In dismissing count 3, the district judge also noted that
Lydon cited nothing "whatsoever suggesting that a union breaches
its duty of fair representation by operating in a manner that is
inconsistent with the rules of its international union."

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employers for employment regardless of their position on the

chronological list." Step two: This exception, he adds, hurts

"non-soliciting members" who follow the CBA and the pattern

agreement. Step three: Given this situation, Local 103 — to again

quote his brief — "cannot be afforded a 'wide range of

reasonableness' in implementing" that system. Step four: And so,

he contends, Local 103 is on the hook for violating its fair-

representation duty.

We can make short work of this argument, because at

bottom we fail to see how Lydon suffered arbitrary discrimination

through the solicitation system's creation. After all, that system

is open to every member, even to "undesirables" — his word — like

him. They and he can use either the solicitation system or the

seniority system, or both — the "both" option is directly asking

Boston NECA employers for work while also trying for referrals

through the seniority system. How to play it is totally up to each

member, not Local 103.

Undaunted, Lydon points out that the complaint alleges

that Local 103 implemented the solicitation system to roll off

"undesirables." But this argument overlooks that the solicitation

system simply lets members solicit work. It plays no part in

kicking members to the bottom of the referral list when they turn

down work — members end up at the bottom, remember, when the three-

refusal rule applies. So his point does not persuade.

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 The net result is that, like his other claims, the fair-

representation claim falls short of satisfying the plausibility

standard.12 And that is that.13

Final Words

Our work over, we affirm the judgment of dismissal and

award Local 103 its costs on appeal. See Fed. R. App. P. 39(a)(2).

So ordered.

12
Relying on Carpenters Local 537 (E.I. Du Pont), 303 N.L.R.B.
419 (1991) ("Carpenters," for easy reference), Local 103
alternatively argues that as a nonexclusive hiring hall it owes its
members no duty of fair representation. The judge below found
Carpenters convincing. But that is the only time a judge anywhere
in the country has ever cited Carpenters, Lydon fires back. And to
his mind, Carpenters's analysis is not compelling here. Today is
not the day to decide whether to embrace Carpenters, because even
assuming (without deciding) that Lydon is right about that case, he
still loses for the reasons arrayed above.
13
Our ruling means that Lydon's class-action claim is a no-go
too.

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