BRENDON J. LYDON, Plaintiff, Appellant,
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.
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.
Before Howard and Thompson, Circuit Judges, and Laplante, District Judge.[*]
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.
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 Electrical Workers (" IBEW"  ). 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. The IBEW's constitution says pretty much the same thing. But the IBEW withholds approval if the agreement differs from " Category I Language" in the pattern agreement. 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. And the adjective " exclusive" means an employer (like the NECA) must hire only through the hall.
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 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 ...