Robert Haphey and Carl J. Bondietti v. Linn County Linn County Sheriff's Office Art Martinak, Sheriff, Acting in His Official and Individual Capacity

Robert Haphey and Carl Bondietti (appellants) brought this action against Linn County, Oregon, in which they alleged that the Sheriff of Linn County (Sheriff) had discriminated against them because of their union activities. The district court granted summary judgment against appellants. Haphey v. Linn County, 731 F.Supp. 410 (D.Or.1990) (.Haphey I). They appealed. A panel of this court affirmed the district court. Haphey v. Linn County, 924 F.2d 1512 (9th Cir.1991) (Haphey II). We then granted appellants' petition to hear this case en banc.

We now set aside the decision of the panel to the extent that it determined that appellants’ action was barred by the doctrine of election of remedies. We return this case to the panel for further proceedings consistent with this opinion.

BACKGROUND FACTS

The background facts are well stated in Haphey II, 924 F.2d at 1513-14 , so we will only adumbrate them.

Appellants were sheriffs deputies who were laid off in May of 1986. After that, they applied for recall and to be newly hired. Although others were hired, they were not. They claimed that the Sheriff failed to give them jobs because they had engaged in union activities.

As a result,…