Breininger v. Sheet Metal Workers/Concurrence Stevens
Justice STEVENS, 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."  A prison inmate who is summarily deprived of "good time" credits is also subjected to "discipline."  So too is the soldier who as a result of misconduct is required by a superior to perform additional duties.  In none of these cases is the discipline imposed by a "tribunal" or as a result of a "proceeding convened by" the disciplinary official. Ante, at 94. Rather, what distinguishes the punishment as "discipline" is that it is imposed by one in control with a view to correcting behavior that is considered to be deviant. The Court today holds, however, that a union member who is deprived of work referrals as a result of his intraunion political activities, conduct deemed by the union to be deviant, is nonetheless not being subjected to discipline. Although I join the Court's analysis and disposition of petitioner's duty of fair representation claim in Parts I and II of its opinion, I cannot join this restrictive interpretation of the LMRDA.
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, 456 U.S. 431, 435, 102 S.Ct. 1867, 1870, 72 L.Ed.2d 239 (1982). These took at least two forms. First, many unions were run autocratically and did not accord their members the right of self-governance. See Sheet Metal Workers v. Lynn, 488 U.S. 347, 356, n. 8, 109 S.Ct. 639, 644-645, 102 L.Ed.2d 700 (1989); Steelworkers v. Sadlowski, 457 U.S. 102, 112, 102 S.Ct. 2339, 2346, 72 L.Ed.2d 707 (1982). Accordingly, Congress decreed that union members would have equal voting rights and the freedom of speech and assembly and provided in § 102, 29 U.S.C. § 412 (1982 ed.), a means of enforcing these rights through a civil cause of action in federal court. Second, there was evidence that unions imposed discipline on their members in violation of their members' civil rights or without adequate procedural safeguards.  See Finnegan, 456 U.S., at 442, 102 S.Ct., at 1873 (Congress was concerned with "protecting the rights of union members from arbitrary action by the union or its officers") (emphasis deleted); Boilermakers v. Hardeman, 401 U.S. 233, 243-245, 91 S.Ct. 609, 615-617, 28 L.Ed.2d 10 (1971). The provisions which address these concerns, LRMDA §§ 101(a)(5)  and 609,  29 U.S.C.§§ 411(a)(5), 529 (1982 ed.), are written in expansive language. They respectively prohibit the imposition of discipline by any labor "organization or any officer thereof," § 411(a)(5), and "any labor organization, or any officer, agent, shop steward, or other representative of a labor organization, or any employee thereof." § 529. And they refer not only to fines, suspension, and expulsion, the usual sanctions imposed by a union, but also to unspecified means by which the union "otherwise discipline[s]" its members.
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, 535 F.2d 912, 915 (CA5 1976). It easily includes the use of a hiring hall system by one who is charged with administering it to punish a member for his political opposition. Indeed, the express reference in the Act to "fines," a form of discipline that traditionally was not imposed after a trial, suggests that Congress intended the Act to reach discipline that is both informal and affects only a member's economic rights.
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. "[I]nterference with employment rights constitute[s] 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, 579 F.2d 1373, 1378 (CA8 1978); see also Etelson & Smith, Union Discipline Under the Landrum-Griffin Act, 82 Harv.L.Rev. 727, 732 (1969) ("Since the prime motivation to join a union is concern about one's interests as an employee, it seems manifest that a very effective method of disciplining a union member would be to cause injury to those interests"). It is inconceivable that a statute written so broadly would not include such sanctions within its compass.
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 & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Petitioner alleges "that in failing to refer him for employment . . . the defendant, acting by and through its present business manager, David Williams, and its present business agent, Michael Duffy, have 'otherwise disciplined' plaintiff." The union's abuse of the hiring hall system is further said to have "been part of widespread, improper discipline for political opposition." App. to Pet. for Cert. A-21. The Court elsewhere acknowledges that "the ability to refer workers for employment through a hiring hall" is a power of the union granted it by the collective-bargaining agreement, ante, at 88, and it properly concludes that petitioner's allegations are sufficient to support the imposition of liability upon the union for breaching its duty of fair representation. Petitioner's allegation that the union's officers used their union-granted authority over the hiring hall to punish him for his union activities should also be sufficient to support the claim that punishment was imposed "under color of" the union's right to control its membership and that the "opprobrium of the union as an entity " was "visited upon petitioner." Ante, at 94.
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,  discipline can be imposed informally as well as formally and pursuant to unwritten practices similar to those petitioner has alleged as well as to a formal established policy. The language and structure of the Act do not evince any intention to restrict its coverage to sanctions that are imposed by tribunals or as the result of proceedings. That Congress specified detailed procedures to be followed in disciplinary proceedings does not mean that no procedures need be followed when discipline is imposed without any proceeding whatsoever. Nor does the legislative history, which reflects Congress' intention to prevent a wide range of arbitrary union action, support such a crabbed reading.  By holding that the informally imposed sanctions alleged here are not covered by the LMRDA, the Court ironically deprives union members of the protection of the Act's procedural safeguards at a time when they are most needed-when the union or its officers act so secretly and so informally that the member receives no advance notice, no opportunity to be heard, and no explanation for the union's action. This construction of the labor organization's "Bill of Rights" is perverse and cannot have been intended by Congress.
Finally, this case is not controlled, as the Court of Appeals concluded, by our decision in Finnegan v. Leu, 456 U.S. 431, 102 S.Ct. 1867, 72 L.Ed.2d 239 (1982). In that case, we held that removal from appointive union employment did not constitute discipline within the meaning of § 609. Id., at 437, 102 S.Ct., at 1871; see also Sheet Metal Workers v. Lynn, 488 U.S., at 353, n. 5, 109 S.Ct., at 644, n. 5. We stated that "it was rank-and-file union members-not union officers or employees, as such-whom Congress sought to protect," 456 U.S., at 437, 102 S.Ct., at 1871, and that "Congress [did not] inten[d] to establish a system of job security or tenure for appointed union employees," id., at 438, 102 S.Ct., at 1871. In his brief for the United States as Amicus Curiae, the Solicitor General has cogently explained why Finnegan is not controlling:
"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 § emphasis on the distinction between union members and union leaders 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 § 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 [, 102 S.Ct., at 1871] ). 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 [, 102 S.Ct., at 1871]. Moreover, such an action bears enough similarity to the specific disciplinary actions referred to in Section 609 to fall within the residual category of sanctions-encompassed by the phrase 'otherwise disciplined'-that are subject to that provision." 
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.
^1 See, e.g., Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (use of corporal punishment, without predeprivation hearing, as means of disciplining schoolchildren); Goss v. Lopez, 419 U.S. 565, 580, 95 S.Ct. 729, 739, 42 L.Ed.2d 725 (1975) (suspension from school without hearing as form of discipline).
^3 See Manual for Courts-Martial, United States, 1968, Ch. 26 (detailing forms of nonjudicial disciplinary punishment for minor offenses).
^4 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 § 610 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.
"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."
"It shall be unlawful for any labor organization, or any officer, agent, shop steward, or other representative 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."
^7 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").
^8 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").
^9 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 406, 882 F.2d 929, 940-941 (CA5 1989); Murphy v. International Union of Operating Engineers, Local 18, 774 F.2d 114, 122-123 (CA6 1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1201, 89 L.Ed.2d 315 (1986); Keene v. International Union of Operating Engineers, 569 F.2d 1375 (CA5 1978); see also Moore v. Local 569, Int'l Brotherhood of Electrical Workers, 653 F.Supp. 767 (SD Cal.1987); T. Kheel, Labor Law § 43.06, 43-105 (1986); Beaird & Player, Union Discipline of its Membership Under Section 101(a)(5) of Landrum-Griffin: What is "Discipline" and How Much Process is Due?, 9 Ga.L.Rev. 383, 392 (1975); Etelson & Smith, Union Discipline Under the Landrum-Griffin Act, 82 Harv.L.Rev. 727, 733 (1969). But see Comment, Applicability of LMRDA Section 101(a)(5) to Union Interference with Employment Opportunities, 114 U.Pa.L.Rev. 700 (1966). Two Courts of Appeals have held that suspension of a member from a nonexclusive job referral system did not constitute discipline when such suspension was required by the terms of the collective-bargaining agreement. See Turner v. Local Lodge No. 455, Int'l Brotherhood of Boilermakers, 755 F.2d 866, 869-870 (CA11 1985); Hackenburg v. International Brotherhood of Boilermakers, 694 F.2d 1237, 1239 (CA10 1982); see also Figueroa v. National Maritime Union of America, 342 F.2d 400 (CA2 1965) (although interference with employment opportunities is covered by Act, union's compliance with collective-bargaining agreement in refusing to refer seaman does not constitute discipline).