Robert Guidry, Cross-Appellant v. International Union of Operating Engineers, Local 406, Cross-Appellees

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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before RUBIN, GARZA and KING, Circuit Judges. PER CURIAM:

On March 19, 1990, the Supreme Court — U.S. -, 110 S.Ct. 1465, 108 L.Ed.2d 603, vacated our judgment in Guidry v. International Union of Operating Engineers, 882 F.2d 929 (5th Cir.1989), and remanded for further proceedings in light of Breininger v. Sheet Metal Workers International Association, — U.S. -, 110 S.Ct. 424, 107 L.Ed.2d 388 (1989). We, in turn, remand to the district court.

In Breininger, the Court held that the phrase “otherwise discipline” under sections 101(a)(5) and 609 of the Labor Management Reporting and Disclosures *1493Act of 1959 (LMRDA) denotes only that punishment “authorized by the union as a collective entity to enforce its rules.” Id. 110 S.Ct. at 439. In other words, an action must be “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.” Id. (quoting Miller v. Holden, 535 F.2d 912, 915 (5th Cir.1976)). The union need not, however, invoke formal proceedings, and discipline can entail informal or summary penalties as long as adverse action against a union, member is not purely “ad hoc retaliation by individual union officers.” Id., 110 S.Ct. at 439 n. 15. “Discipline ‘must be done in the name of or on behalf of the union as an organizational entity.’ ” Id. The petitioner in Breininger “alleged only that [certain union officers] failed to refer him to employment because he supported one of their political rivals.” Id. at 440. Thus; the petitioner failed to allege acts constituting discipline by the union as a collective entity.

The Supreme Court’s interpretation of the phrase “otherwise discipline” in determining whether hiring hall discrimination gives rise to a claim under sections 101(a)(5) and 609 of the LMRDA does not affect that portion of our panel opinion affirming liability and damages based on Guidry’s claim that the Union breached its duty of fair representation under the Labor Management Relations Act, 29 U.S.C. § 159(a). See Guidry, 882 F.2d at 937 & n. 5. Therefore, this portion of our prior opinion is reinstated.

On the issue of LMRDA liability, we need remand only with respect to those claims potentially impacted by the Supreme Court’s decision in Breininger, that is, Guidry’s unlawful discipline claims based on sections 101(a)(5) and 609 of the Act.1 Breininger does not alter the district court’s judgment regarding the defendants’ violations of Guidry’s equal rights under section 101(a)(1) and right to free speech under section 101(a)(2). A litigant may successfully seek redress under section 102 for an infringement of these LMRDA rights even if no unlawful “discipline” is shown. Finnegan v. Leu, 456 U.S. 431, 439, 102 S.Ct. 1867, 1872, 72 L.Ed.2d 239 (1982); Murphy v. International Union of Operating Engineers, Local 18, 774 F.2d 114, 122 (6th Cir.1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1201, 89 L.Ed.2d 315 (1986).

If Guidry wishes to pursue his unlawful discipline claims on remand, the district court must determine, in view of Breininger, whether the Union as a collective entity was responsible for hiring hall discrimination against him. The court should make new findings, taking additional evidence if needed, and render its judgment accordingly-

In our previous opinion in this case, we vacated the . district court’s award of LMRDA damages, holding that, due to an intervening Supreme Court case, Reed v. United Transportation Union, 488 U.S. 319, 109 S.Ct. 621, 102 L.Ed.2d 665 (1989), the district court erred in applying a six-month statute of limitations to Guidry’s LMRDA claims. See Guidry, 882 F.2d at 941-42. We remanded for a redetermination of damages based on violations occurring within one year of filing suit, applying Louisiana’s one-year limitations .period for delictual actions. Id. at 941-45. This holding is unaffected by Breininger, and we therefore remand for a reassessment of damages consistent with the discussion contained in our previous opinion. Id.

REMANDED., .

. Guidry's expulsion and the district court’s reinstatement of Guidry to the Union are not at issue as expulsion is explicitly set out in the LMRDA as a form of discipline. See 29 U.S.C. §§ 411(a)(5), 529.