William J. Brennan, Jr.

“ Our "refusal to limit judicial competence to rectify a breach of the duty of fair representation rests upon our judgment that such actions cannot, in the vast majority of situations where they occur, give rise to actual conflict with the operative realities of federal labor policy." ”

“ Pursuant to a multi-employer collective-bargaining agreement, respondent operates a hiring hall through which it refers both members and nonmembers of the union for construction work. Respondent maintains an out-of-work list of individuals who wish to be referred to jobs. When an employer contacts respondent for workers, he may request certain persons by name. If he does not, the union begins at the top of the list and attempts to telephone in order each worker listed until it has satisfied the employer's request. ”

“ Mitchell, 451 U.S. 56, 63, 101 S.Ct. 1559, 1564, 67 L.Ed.2d 732 (1981) (" [T] he unfair representation claim made by an employee against his union . . . is more a creature of 'labor law' as it has developed . . . than it is of general contract law") . The duty of fair representation, unlike state tort and contract law, is part of federal labor policy. ”

“ Only because of its status as a Board-certified bargaining representative and by virtue of the power granted to it by the collective-bargaining agreement does a union gain the ability to refer workers for employment through a hiring hall. ”

“ The hiring hall is not the exclusive source of employment for sheet metal workers; they are free to seek employment through other mechanisms, and employers are not restricted to hiring only those persons recommended by the union. [1] Respondent also maintains a job referral list under the Specialty Agreement, a separate collective-bargaining agreement negotiated to cover work on siding, decking, and metal buildings.
Petitioner alleges that respondent refused to honor specific employer requests for his services and passed him over in making job referrals. ”

“ Another consideration in Vaca for finding the fair representation claim judicially cognizable was the NLRB General Counsel's unreviewable discretion to refuse to institute unfair labor practice proceedings. " [T] he General Counsel will refuse to bring complaints on behalf of injured employees when the injury complained of is 'insubstantial.' " Id., at 183, n. 8, 87 S.Ct., at 913 n. 8. The right of the individual employee to be made whole is " [o] f paramount importance," Bowen v. ”

“ Teamsters, 462 U.S. 151, 164, 165, 103 S.Ct. 2281, 2290, 2291, 76 L.Ed.2d 476 (1983) (noting that a hybrid fair representation/§ 301 suit "comprises two causes of action" and that " [t] he employee may, if he chooses, sue one defendant and not the other") ; United Parcel Service, 451 U.S., at 66, 101 S.Ct., at 1566 (Stewart, J., concurring in judgment) (§ 301 and fair representation claim each has "its own discrete jurisdictional base") ”

“ Automobile Workers, Local 453 (Maremont Corp.) , 149 N.L.R.B. 482, 483-484 (1964) ; Longshoremen, Local 1367 (Galveston Maritime Assn., Inc.) , 148 N.L.R.B. 897, 897-900 (1964) , enf'd, 368 F.2d 1010 (CA5 1966) , cert. denied, 389 U.S. 837, 88 S.Ct. 58, 19 L.Ed.2d 99 (1967) ; Independent Metal Workers, Local No. 1 (Hughes Tool Co.) ”

“ See Teamsters v. NLRB, 365 U.S. 667, 676, 81 S.Ct. 835, 840, 6 L.Ed.2d 11 (1961) (§ 8 (b) (1) condemns a hiring hall "which in fact is used to encourage and discourage union membership by discrimination in regard to hire or tenure, term or condition of employment") ; Local 277, Int'l Brotherhood of Painters v. NLRB, 717 F.2d 805, 808-809 (CA3 1983) ; NLRB v. Local Union 633, United Assn. of Journeymen and Plumbers, 668 F.2d 921, 922-923 (CA6 1982) (per curiam ) ; NLRB v. Local 143, Moving Picture and Projection Machine Operators Union, 649 F.2d 610, 612 (CA8 1981) . ”