THOMPSON, Circuit 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
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 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
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 non exclusive 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.
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."
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
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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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 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.
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.
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, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998) (internal quotation marks omitted). That said, an unfair-representation claim — which targets discriminatory or arbitrary conduct, see Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976) — "is cognizable in the first instance in federal court." Marquez, 525 U.S. at 49, 119 S.Ct. 292. And generously read, the discrimination allegations in count 1's LMRA claim basically mimic the discrimination allegations
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 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, 110 S.Ct. 424, 107 L.Ed.2d 388 (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, 110 S.Ct. 424. So to state a claim a plaintiff cannot allege simply that "union officers" carried out "personal vendettas" against him, id. at 94, 110 S.Ct. 424 — 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, 110 S.Ct. 424.
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, 110 S.Ct. 424. 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 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, 110 S.Ct. 424.
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
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 complained-of action). Ultimately, then, count 2 fails the plausibility test.
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.
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, 96 S.Ct. 1048. A judge-made doctrine, see Breininger, 493 U.S. at 79, 110 S.Ct. 424, 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, 111 S.Ct. 1127, 113 L.Ed.2d 51 (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, 119 S.Ct. 292. 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 reasonableness... as to be irrational," O'Neill, 499 U.S. at 67, 111 S.Ct. 1127 (internal quotation marks and citation omitted) — i.e., only if it is without any "rational basis or explanation," Marquez, 525 U.S. at 46, 119 S.Ct. 292. 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, 81 S.Ct. 835, 6 L.Ed.2d 11 (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"
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 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.
The net result is that, like his other claims, the fair-representation claim falls short of satisfying the plausibility standard.
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).
(Emphasis in original.)