Davine Alexander, et al., Plaintiffs-Appellees/Cross-Appellants (96-3858),
Local 496, Laborers' International Union of North America; Floyd Conrad, Defendants-Appellants (96-3823/3854)/Cross-Appellees, Laborers' International Union of North America, Defendant-Appellant (96-3806/3857)/Cross-Appellee.
Theodore T. Green, Laborers' International Union of North America,
Washington, D.C., Alan S. Belkin, LAW OFFICES OF ALAN S. BELKIN,
Cleveland, Ohio, for Appellants. Edward G. Kramer, KRAMER &
NIERMANN, Cleveland, Ohio, for Appellees. ON BRIEF: Theodore T.
Green, Laborers' International Union of North America, Washington,
D.C., Alan S. Belkin, LAW OFFICES OF ALAN S. BELKIN, Cleveland,
Ohio, Eben O. McNair, IV, Timothy J. Gallagher, SCHWARZWALD &
ROCK, Cleveland, Ohio, for Appellants. Edward G. Kramer, KRAMER
& NIERMANN, Cleveland, Ohio, for Appellees.
COLE, J., delivered the opinion of the court,
in which KEITH, J., joined. BATCHELDER, J. (pp. 32-63), delivered
a separate opinion concurring in part and dissenting in part.
R. GUY COLE, JR., Circuit Judge. Defendants, Local Union 496, Laborers' International Union of North America ("Local 496"),
Floyd Conrad, and Laborers' International
Union of North America ("LIUNA"), appeal the district
court's order finding them liable for race discrimination in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e-2(a) and (c), and 42 U.S.C. § 1981.
all African-American persons who sought membership in Local 496
or referral for jobs at the Perry Nuclear Power Plant ("Perry"),
cross-appeal the district court's order calculating damages and
its order sanctioning plaintiffs' counsel for alleged failure
to comply with LIUNA's discovery requests.
For the following reasons, we AFFIRM the
judgment of the district court with respect to the defendants'
appeal and AFFIRM the judgment of the district court with respect
to the plaintiffs' cross-appeal.
The facts in this case implicate the relationship
among the plaintiffs, Local 496, LIUNA, and Perry, where members
of the plaintiff class sought employment. All plaintiffs, including
the named plaintiff, Davine Alexander, were black applicants whom
Local 496 rejected for membership.
Work began at Perry, which is located in
Lake County, Ohio, in the early 1970s. In 1973, Local 496 signed
a project labor agreement with the Cleveland Electric Illuminating
Company, under which Local 496 was to act as the exclusive hiring
hall for laborers at Perry during the plant's "construction
phase," which lasted until 1985. During this time, Perry
was the primary employer of laborers in Lake County. However,
Perry by no means exclusively employed laborers who resided in
Lake County; laborers from several neighboring counties also coveted
work at the plant, in large measure because of the relatively
high wages Perry contractors offered. Perry laborers earned approximately
$14.00 per hour, compared to the average $6.66 an hour other workers,
including those in professional occupations, earned in the same
Local 496's membership has always been overwhelmingly
white. For example, between 1980 and 1985 blacks comprised only
between 2.88% and 3.59% of its total membership. During this same
time period, the union accepted 54 new members, only one of whom
was black.2 African Americans who sought a referral to Perry from
this union faced daunting opposition. According to the project
labor agreement, Local 496 was to refer both union members and
non-members for laborers' positions at Perry. It failed to do
so. Furthermore, Local 496's constitution, which is the Uniform
Local Constitution of the Laborers' International Union of North
America, requires that a person seeking union membership first
be employed as a laborer in Lake County. This "working-in-the-calling"
rule requires non- members seeking induction into Local 496 to
first secure work at a "union shop." Conversely, in
the event that an individual secured such work, he or she was
required to join the union within eight days of beginning employment.
Essentially, then, the project labor agreement, which obligated
Local 496 to treat members and non-members alike for the purposes
of referrals, was to constitute a contractual waiver of the working-in-the-calling
rule. Unfortunately for the plaintiffs, despite this waiver, union
personnel selectively enforced the working-in-the-calling rule
to effect the exclusion of black prospective members. Most markedly
between 1975 and 1985, a period of rapid union growth, Local 496
regularly waived the working-in-the-calling requirement for white
applicants. The union declined to accord African-American applicants
the same benefit. Indeed, Floyd Conrad, business manager of Local
496, admitted that the union failed to refer a single black non-member
The white applicants for whom the union waived
its working-in-the-calling rule were, more often than not, relatives
of Local 496 members. During the relevant time period, over 30%
of union members had relatives who were also union members. Moreover,
one of the principal means of acquiring Local 496 membership or
an employment referral from the union was the request of a relative
or friend who was already a union member. Sometimes, union members
asked the union's business manager for a waiver of the working-in-the-calling
rule on behalf of their cronies. Alternately, union members working
as stewards or foremen at Perry simply approached employers and
contractors at the plant and recommended their relatives for available
positions. This sort of direct access to Perry employers was only
available to people already employed at the plant, because of
the plant's security requirements.
The ease with which white members of Local
496 bolstered their ranks with friends and relatives contrasts
starkly with the barriers their black counterparts confronted
when they sought to act similarly. On several occasions, Donald
Robinson, one of the few African-American members of Local 496,
attempted to refer black friends and relatives to Conrad for positions
at Perry. Conrad consistently ignored Robinson's requests. The
story of Cheryl Journigan, a class member and relative of Donald
Robinson's, illustrates Conrad's treatment of black applicants.
Journigan testified that in 1985, she repeatedly sought union
membership or employment referrals by calling and appearing at
Local 496's union hall. Journigan recalled that Conrad invariably
refused to return her telephone calls or instructed union secretaries
to tell Journigan he was absent. Deborah Bracale, Conrad's secretary
at the time, corroborated Journigan's account. At Conrad's direction,
union personnel similarly rebuffed other African Americans seeking
union membership or employment referrals. Thus, several factors,
including nepotism, inequitable application of the working-in-the-calling-rule,
and security at Perry, allconverged to exclude black applicants
from union membership and employment referrals.
After the plant's construction phase ended,
maintenance work at the plant began. This work was performed pursuant
to a 1985 National Maintenance Agreement, which LIUNA signed but
Local 496 did not. However, the Maintenance Agreement provided
that Local 496 was to act as LIUNA's agent in filling all laborer
vacancies at Perry. No LIUNA representatives or agents were involved
in administering the referral system.
After a decade of unsuccessful attempts to
thwart the union's discriminatory membership restrictions, several
black applicants initiated this class action in December 1984.
Subsequently, by orders dated October 28, 1985 and March 6, 1986,
individual discrimination suits filed by plaintiffs Ron Colvin,
Richard Lilly, Edward Turner II, Percy Pouewells, Lee Coffee,
Sr., Isiah Johnson, Jr., and Jimmie Rice, against Local 496 and
Conrad were consolidated with the class suit. Cheryl Journigan,
the last class member to file EEOC charges of discrimination against
the defendants, did so on January 10, 1985. On January 26, 1988,
the district court certified the class to include:
All Black persons who, on or before [January
26, 1988], have sought membership in Local 496 and/or employment
either by application or by referral under the policy described
in the collective bargaining agreement of March 9, 1973, by which
the defendant union agreed to make referrals to employers at the
Perry Nuclear Power Plant site.
LIUNA was aware of this action from its inception.
Beginning in 1984, Business Agent Conrad regularly informed the
regional office of LIUNA, specifically LIUNA's Regional Manager,
Thomas J. Arconti, about charges lodged with the Equal Employment
Opportunity Commission("EEOC"), lawsuits filed by the
plaintiffs, and of all findings of the EEOC related to the allegations
against the local union. LIUNA's regional officers, the EEOC and
the National Labor Relations Board, in turn, notified the General
President of LIUNA of such events. In addition, the constitutions
of Local 496 and LIUNA empowered LIUNA to intervene in the affairs
of Local 496. Nevertheless, LIUNA never investigated the plaintiffs'
charges of discrimination. Having discovered LIUNA's awareness
of their EEOC charges against Local 496, in September 1989, plaintiffs
Colvin and Tomblin filed additional EEOC charges against the parent
union, claiming it intentionally refused to investigate the alleged
discrimination. On January 12, 1990, the class moved to amend
its complaint to add LIUNA as a defendant. Although the suit was
originally to be tried on January 17, 1990, the district court
found that LIUNA was an indispensable party and on January 19,
1990, accordingly granted the plaintiffs leave to amend their
complaint. On January 22, 1990, Tomblin and Colvin filed amended
EEOC charges of discrimination, again alleging that LIUNA had
intentionally neglected to investigate their charges of discrimination
against the other defendants. After Colvin received his EEOC right-to-sue
letter, the plaintiffs filed their amended complaint, adding LIUNA
as a defendant, on March 30, 1990.
After protracted preliminary proceedings,
the plaintiffs had their day in court. The trial was bifurcated,
first to determine the issue of liability, and then, if the district
court found the defendants liable, to ascertain the amount of
damages. A bench trial determining liability took place in the
spring of 1991. On December 10, 1991, the district court found
the defendants liable for both disparate treatment and disparate
impact racial discrimination, in violation of Title VII and §
1981. Specifically, the district court found that as a result
of the discriminatory application of its facially neutral membership
requirements, Local 496 refused African Americans union membership
in violation of federal civilrights law. The district court also
determined that in order to deter black applicants and "keep
Local 496 mainly an all white union[,]" African Americans
applying for membership into Local 496 "were met with a reluctant
or even, at times, hostile attitude of [Floyd Conrad]." In
addition, the district court concluded that LIUNA was liable for
Local 496's discriminatory practices because the local union acted
as its parent's agent, and the international union breached its
affirmative duty to ensure the local's compliance with federal
civil rights law. During the damages trial in 1996, the parties
reached a partial settlement. Local 496 agreed to an initial payment
of $100,000, and LIUNA agreed to an initial payment of $200,000.
The parties also agreed to a system by which Local 496 would give
plaintiffs preference in employment referrals. Whether the plaintiffs
receive any additional sum depends on the outcome of this appeal.
Following a hearing, the district court approved the settlement
in June 1996. This timely appeal followed.
The defendants first argue that the district
court erred in determining that they unlawfully subjected the
plaintiffs to disparate treatment because of their race.
This court reviews a district court's finding of facts made after
a bench trial for clear error and reviews a district court's
conclusions of law de novo. See Davies v. Centennial Life Ins.
Co., 128 F.3d 934, 938 (6th Cir.1997). When reviewing for clear
error, we must affirm the trial court unless we are left with
the definite and firm conviction that a mistake has been committed.
See EEOC v. Atlas Paper Box Co., 868 F.2d 1487, 1493 (6th Cir.
1989) (citation and quotation omitted).
A plaintiff may create a presumption of discrimination
pursuant to the McDonnell Douglas burden-shifting principle. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973). Under
the McDonnell Douglas framework, a plaintiff bears the burden
of establishing by a preponderance of the evidence a prima facie
case and creating a presumption of discrimination by demonstrating:
(1) membership in the protected class; (2) that he or she suffered
from an adverse action; (3) that he or she was qualified for the
position; and (4) that he or she was treated differently from
similarly situated members of the unprotected class. See Mitchell
v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir. 1992) (citing
McDonnell Douglas, 411 U.S. at 803); see also Hartsel v. Keys,
87 F.3d 795, 800 (6th Cir. 1996). Once the plaintiff establishes
a prima facie case, a defendant may offer any legitimate, non-discriminatory
reason for the action, which the plaintiff may then rebut with
evidence of pretext; however, the burden of proof at all times
remains with the plaintiff. Hartsel, 87 F.3d at 800. (citing St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993)).
In this case, the district court found that
pursuant to the McDonnell Douglas framework, the plaintiffs demonstrated
that the defendants subjected them to racially based disparate
treatment. First, the district court determined that the plaintiffs
established a prima facie case by showing that: (1) they are black;
(2) they were available for referral by the union for job opportunities
at Perry; (3) Local 496 did not refer plaintiffs for employment
opportunities at Perry; and (4) white non-union members were referred
for work and made members of Local 496, during the same time plaintiffs
had applied and been refused.
We agree. Floyd Conrad selectively enforced,
to the detriment of black applicants, the Uniform Constitution's
working-in-the-calling requirement. Conrad testified that white
union members asked him "a thousand times or more"to
admit unemployed relatives to Local 496, and that he obliged them;
he also testified that he had admitted into the union his own
unemployed relatives, including his father.3 During the same time
period, when Donald Robinson advised several unemployed African
Americans to seek membership in Local 496, Conrad refused them
all.4 Moreover, at trial, Conrad admitted that whenever a contractor
specifically requested that Local 496 refer a black person for
employment, Conrad would call Local 860 of Cleveland, which had
a higher percentage of African-American members than Local 496,
to suggest that the Cleveland union refer one of its members.
Conrad thereby avoided referring for employment, and subsequently
admitting into Local 496, any African-American applicants.
Furthermore, African Americans suffered disparate
treatment with regard to Local 496's Perry referral policy itself;
after the union changed its Perry referral policy in 1987, it
failed to make this change known to black applicants, effectively
ensuring that they would not be referred. Prior to 1987, Local
496 did not have a written referral policy forPerry; however,
it admits that it only referred members to Perry, in contravention
of the project labor agreement. Local 496's practice was to allow
members and, occasionally, non-members to sign a notebook located
in the union indicating that they wished to be referred. Conrad
would then compile a master list from the notebook containing
the names of members only. This practice led to National Labor
Relations Board charges against Local 496 and eventually to the
written 1987 referral policy. Pursuant to the new policy, Local
496 maintained a single list of both members and non-members wishing
to be referred to Perry. Local 496 made referrals from this list,
in order. However, persons on the list were required to inform
Local 496 monthly that they remained unemployed and interested
in Perry. Otherwise, their names were removed from the referral
list. Although this policy was facially neutral, Conrad did not
inform class members of the new procedure. Members, however, were
informed via posters hung in locations throughout the union hall
to which only members had access. Consequently, class members'
names were not retained on the union's referral list, and Local
496 never referred any for employment under this new policy.
For example, on or about January 22, 1990,
plaintiffs Art Tomblin and Ronald Colvin appeared at Local 496's
hiring hall seeking referral for employment. Pursuant to the October
1987 referral policy, the union representative asked Colvin and
Tomblin to sign their names on the out-of-work list. They were
92nd and 93rd on the list at the time they signed up. On February 1, 1990, the union secretary prepared
a new out-of work list and deleted the names of the individuals
on the January list who had received referrals for
employment or had failed to notify Local 496 of their continued
interest in a referral within the last thirty days. As
a result of these deletions, Colvin and Tomblin advanced to positions
65 and 66 on the list. However, the union secretary responsible
for preparation of the March 1990 out-of-work list dropped Colvin
and Tomblin from the roster because they had failed to notify
Local 496 of their continuing interest in referral for employment.
According to the defendants, had Colvin andTomblin indicated their
continued interest, they would have remained on the roster and
been referred for work in May of 1992. Moreover, the defendants
argue that they informed plaintiffs' counsel of the new referral
policy, and, thus, by association informed the plaintiffs.
Defendants suggest that Link v. Wabash R.
Co., 370 U.S. 626 (1962), supports their proposition that the
knowledge of a litigant's counsel is imputed to the litigant.
However, there are exceptions to this rule when, as here, equity
requires such. See Partlow v. Jewish Orphans' Home
of Southern Cal., 645 F.2d 757, 758-62 (9th Cir. 1981). Quite
frankly, we find it peculiar that although Local 496 supposedly
implemented the new referral policy for the purpose of curing
the previous policy's defects, the defendants never directly apprised
African Americans seeking employment of the new referral system.
Common sense dictates that if the defendants really intended to
make employment opportunities available to all, they would have,
as Magistrate Judge Hemann stated, "implemented this desire
by making the new referral rules readily available and/or made
at least one telephone call to prospective workers." This
is particularly true given Conrad's admission that he failed to
refer a single non-member minority to work at Perry. In this case,
the defendants' notice to plaintiffs' counsel of the facially
neutral referral system does not absolve defendants of their continued
discriminatory application of that system. Thus, we decline to
extend the holding of Link to this case.
Incidentally, the record contains still more
evidence supporting the district court's conclusion that plaintiffs
made out a prima facie case. Conrad, in fact, blatantly displayed
his personal hostility toward African Americans on several occasions.
Don Robinson and Rudy Bracale, another member of Local 496, both
testified that Conrad referred to Robinson by a racial epithet
on at least two occasions. See Ercegovich v. Goodyear Tire &
Rubber Co., 154 F.3d 344, 354 (6th Cir. 1998) (recognizing that
discriminatory remarks of decisionmakers are relevant to show
motivations for theiractions); Talley v. Bravo Pitino Restaurant,
Ltd., 61 F.3d 1241, 1248 (6th Cir. 1995) (recognizing that employer's
repeated use of racial epithets constituted direct evidence of
racial discrimination). Furthermore, after Robinson began questioning
Local 496's discriminatory practices, Conrad retaliated by removing
Robinson from his position as union steward "because he was
bringing up minority stuff that was not his business." Taken
as a whole, we view the above as undeniable evidence of racial
animus and disparate treatment and accordingly affirm the district
court's conclusion that the plaintiffs established a prima facie
Once the plaintiff establishes a prima facie
case of discrimination, the defendant may respond by articulating
a legitimate, non- discriminatory reason for its action. Hartsel,
87 F.3d at 799. In this case, the defendants claim that the business
purpose for their working-in-the-calling policy was to protect
unemployed union members from an influx of unemployed non-members
attempting to join the union. The district court found this reason
to be pretext for discrimination, and the record supports the
district court's conclusion. Quite simply, the defendants selectively
enforced the working-in-the-calling requirement. As we have previously
discussed, Conrad testified that he often admitted unemployed
relatives of white union members. The fact that the defendants
offered union membership to unemployed white non-members while
they refused membership to African-Americans, even those who had
been offered employment, plainly suggests that Conrad was less
concerned with applicants' employment status than he was with
their race. This evidence negates the defendants' proffered reason
for refusing African-American applicants union membership, and
the plaintiffs have thus met their burden of establishing pretext.
See Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084
(6th Cir. 1994) (recognizing that showing that the proffered reason
did not actually motivate the defendant is sufficient to establish
The district court's conclusion with regard
to disparate treatment was not clearly erroneous. To the contrary,
we are hard-pressed to imagine a race-discrimination case with
more explicit evidence of disparate treatment. We accordingly
affirm the district court's conclusion that the defendants engaged
in racially based disparate treatment in violation of Title VII.
The defendants argue that the district court
erred in finding that the union's facially neutral policies had
a disparate impact upon the plaintiffs, in violation of Title
VII of the Civil Rights Act of 1964. The challenged practices
are: (1) Local 496's working-in- the-calling rule;
and (2) its practice of referring only union members for employment.
The district court found that the plaintiffs presented statistical
evidence sufficient to establish a prima facie case of disparate
impact discrimination. The district court also determined that
the defendants produced no job-related business justification
for the policies engendering the disparate impact. We review a
district court's finding of disparate impact discrimination for
clear error. See Atlas Paper, 868 F.2d at 1493.
It is now well-settled that Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
proscribes both overt discrimination as well as "practices
that are fair in form but discriminatory in operation." Griggs
v. Duke Power Co., 401 U.S. 424, 431 (1971). The plaintiff's burden
in a Title VII disparate impact case is to prove that a particular
employment practice has caused a significant adverse effect on
a protected group. See Wards Cove Packing Co. v. Atonio, 490 U.S.
642,657 (1989); Scales, 925 F.2d at 908 (citing Watson v. Fort
Worth Bank & Trust Co., 487 U.S. 977 (1988)). Once the plaintiff
establishes the adverse effect, the burden shifts to the employer
to produce evidence that the challenged practice is a business
necessity. See Wards Cove, 490 U.S. at 659.
Here, the defendants' principal argument
is that the testimony of plaintiffs' expert, Brian Pendleton,
Ph.D., was based on an overly broad labor pool and that as a result
the district court erred in crediting his evidence over that of
defense expert, Beth Martin, Ph.D. Dr. Pendleton based his statistics
on a labor pool comprised of Lake, Ashtabula, Cuyahoga and Geauga
Counties. The experts agreed that 93.5% of Local 496's membership
came from these four counties. Dr. Pendleton's calculations led
him to conclude that the percentage of African Americans in Local
496, approximately 5%, was two standard deviations lower than
the percentage of African Americans in the four-county labor pool.
Dr. Martin, on the other hand, based her statistics on a labor
pool comprised only of the people employed in Lake County, where
Perry is located. She narrowed her labor pool to this population
based on her reasoning that Local 496's jurisdiction is limited
to people employed in Lake County, regardless of their county
of residence. Dr. Martin then determined that the percentage of
African Americans in the relevant labor pool in Lake County and
the number of black members of Local 496 both equaled 5%. Relying
on this statistic, Dr. Martin reasoned that Local 496's African-
American membership mirrored the African- American population
in the relevant labor market and, on this basis, concluded that
the union's policies had no disparate impact on the plaintiffs.
The district court found that the labor pool
upon which Dr. Pendleton based his conclusion was overly broad,
while Dr. Martin's was overly narrow. The district
court nevertheless concluded that the "statistical disparities"
were sufficient to establish a prima facie case of disparate impact
discrimination. The district court reasoned that the union's membership
and referral policies, characterized by the facially neutral working-in-the-calling
rule and the policy of referring only union members for employment,
"even if applied in a non-discriminatory fashion . . . simply
works to reinforce past patterns of discrimination."
We agree. As an initial matter, we note that
despite whatever reservations the district court may have had
with Dr. Pendleton's report, its determination of the "four-
county area" as the correct labor pool was not clearly erroneous.
The evidence in the record indicates that Perry paid extremely
high wages for relatively low-skill positions. Therefore, applicants
were exceedingly willing to commute from throughout the area to
Perry. As the district court stated, then, "the gross disparity
between the percentage of blacks in the membership of Local 496
and the four- county area" certainly supports a prima facie
case. Moreover, we recognize that plaintiffs who present a statistical
analysis of some challenged practice need not rule out all other
variables to prevail. See United States v. City of Warren, 138
F.3d 1083, 1094 (6th Cir. 1998) (citation omitted); see also Bazemore
v. Friday, 478 U.S. 385, 400 (1986) ("A plaintiff in a Title
VII suit need not prove discrimination with scientific certainty;
rather his or her burden is to prove discrimination by a preponderance
of the evidence."). The fact that Local 496 maintained policies
that limited the union's membership to people who were employed
in Lake County, whose workforce was 99% white, necessarily had
a disparate impact on unemployed African Americans seeking membership
in, or employment referrals from, the union. Put differently,
the overwhelming majority of workers eligible for union membership
were white, in large measure because the union's own discriminatory
practices prevented African Americans from obtaining employment
in Lake County; Local 496's membership reflected this demographic,
resulting in the de facto exclusion of African Americans from
union membership. See Ingram v. Madison Square Garden, 709 F.2d
807, 810-11 (2d Cir. 1983) (affirming district court's finding
that union's referral policies violated Title VII based on a combination
of a few statistics and evidence that behavior of union personnel
discouraged plaintiffs from seeking employment); see also Gibson
v. Local 40, Supercargoes and Checkers of the Int'l Longshoremen's
and Warehousemen's Union, et al., 543 F.2d 1259, 1268 (9th Cir. 1976) (stating that union's preference
in referring relatives of union members when membership wasoverwhelmingly
white had disparate impact in violation of Title VII even if defendants'
nepotism was without discriminatory intent).
Once a plaintiff establishes that a particular
practice has engendered a significant adverse effect, the defendant
must produce evidence that the challenged practice
is a business necessity. See Wards Cove, 490 U.S. at 659; Warren,
138 F.3d at 1091-92. Again, the defendants argue that their membership
and referral policies, particularly the working-in-the-calling
rule, were implemented to protect union members from competing
for available positions with an influx of unemployed applicants.
The district court correctly determined that this explanation
does not justify the discriminatory effects of the challenged
practices. Because, as explained above, Local 496 is the sole
source of referrals for Perry and, in theory, it offered membership
only to people employed in Lake County, its own practices served
to reinforce the discriminatory impact on African Americans seeking
employment at Perry, first by excluding them from union membership
and then by refusing to refer them for jobs because they are non-members.
Such a business justification, which buttresses established forms
of discrimination, cannot withstand a Title VII challenge. See
United States v. Bethlehem Steel Corp., 446 F.2d 652, 659 (2d
Cir. 1971) (holding that employer's facially neutral practices
which perpetuated effects of employer's prior discrimination violated
Title VII); see also Warren, 138 F.3d at 1094 (stating that defendant
employer should not escape liability because it maintained two
discriminatory practices which operated concurrently to exclude
black applicants); Gibson, 543 F.2d at 1267 (invalidating practice
that operated to freeze the status quo of the defendant's discriminatory
Based on the evidence in the record, the
district court correctly concluded that the plaintiffs established
a prima facie disparate impact claim, and the defendants' proffered
justification was pretext for discrimination. We thereforeaffirm
the district court's finding of liability with regard to the plaintiffs'
disparate impact claim.
LIUNA contends that the district court erred for a number of reasons by allowing plaintiffs' claims against it to proceed.
First, LIUNA suggests that claims against
it are barred by the statute of limitations governing Title VII
Generally, the timely filing of a charge
of discrimination with the EEOC is a condition precedent to a
Title VII lawsuit. See Atlas Paper Box, 868 F.2d at 1495. Usually,
if the alleged discrimination occurred more than 180 days prior
to the plaintiff's filing of an EEOC charge, claims implicating
these actions are barred. See id. However, if the alleged unlawful
practice occurs in a "deferral state," in this case
Ohio, which has enacted its own laws prohibiting discrimination
in employment, the plaintiff must file suit within 300 days of
the alleged discriminatory act. See 42 U.S.C.. § 2000e-5(e);
EEOC v. Penton Indus. Pub. Co., 851 F.2d 835, 837 n.5 (6th Cir.1988).
In this case, plaintiff Ronald Colvin first
filed an EEOC charge against LIUNA on September 7, 1989. From
this filing date, the 300-day statute of limitations applicable
to Title VII actions filed in deferral states normally would preclude consideration of alleged violations occurring
prior to November 11, 1988. Based on this chronology, LIUNA argues
that none of the allegedly discriminatory acts occurring before
this date supports a finding of liability against it. Because
we conclude that the defendants, including LIUNA, are guilty of
a continuing violation, as explained below, this argument is unavailing.
This court has long recognized that an ongoing,
continuous series of discriminatory acts may be challenged if
one of those discriminatory acts occurred within the limitations
period. See, e.g., Haithcock v. Frank, 958 F.2d 671, 677 (6th
Cir.1992); see also Dixon v. Anderson, 928 F.2d 212, 216 (6th
Cir. 1991). "If a continuing violation is shown, a plaintiff
is entitled to have a court consider all relevant actions allegedly
taken pursuant to the employer's discriminatory policy or practice,
including those that would otherwise be time barred." Van
Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996).
We view continuing violations as falling into two categories of
narrowly limited exceptions to the usual rule that statutes of
limitations are triggered at the time the alleged discriminatory
act occurred. See Haithcock, 928 F.2d at 677. The first category
of continuing violations arises "where there is some evidence
of present discriminatory activity giving rise to a claim of a
continuing violation; that is where an employer continues presently
to impose disparate work assignments or pay rates between similarly
situated groups." Dixon, 928 F.2d at 216. However, "at
least one of the forbidden discriminatory acts must have occurred
within the relevant limitations period." Id. The second category
of continuing violations arises "where there has occurred
a longstanding and demonstrable policy of discrimination . . .
. Unrelated incidents of discrimination will not suffice to invoke
this exception; rather there must be a continuing over-arching
policy of discrimination." Id. at 217 (internal quotations
The facts in this case clearly support the
district court's conclusion that the defendants are liable regardless
of the statute of limitations because their actions
were part of a continuing violation. Floyd Conrad testified that
over a significant period of time, he refused African
Americans membership in Local 496 based on the working-in-the-calling
rule. The district court found that this practice continued atleast
through January 1990. Also as late as January 1990, Local 496's
personnel failed to apprise African-American non-members of the
procedure necessary to maintain their eligibility for employment
referrals, though the union's overwhelmingly white membership
was informed of the relevant procedure. Further, Floyd Conrad's
testimony supports a finding that although the official membership
and referral policies of Local 496 may have changed over the years,
the practice of excluding black applicants continued into the
relevant limitations period. Moreover, the working-in-the-calling
rule, memorialized in Local 496's constitution and by-laws, resulted
in the de facto exclusion of African Americans from the ranks
of Local 496 as well as from employment at Perry. Thus, the defendants
committed both types of continuing violations recognized by this
court: a series of related discriminatory acts and an established
policy of discrimination.5 See Haithcock, 958 F.2d at 678 (recognizing
that a continuing violation exists where a policy of discrimination
is longstanding and manifested in discriminatory treatment in
more than one instance); see also Hull v. Cuyahoga Valley Joint
Vocational Sch. District Bd. of Ed., 926 F.2d 505, 510-11 (6th
Cir. 1991) (stating that a complaint is timely filed and the continuing
violation doctrine applies where a plaintiff challenges not just
one incident of unlawful conduct but an unlawful practice that
continues into the limitations period) (quotation omitted); see
also United States v. International Assoc. of Bridge, Structural
and Ornamental Iron Workers, Local No. 1, 438 F.2d 679, 683(7th
Cir. 1971) ("[I]t is proper for a court to look at past discrimination
to see whether an employer is perpetuating a pattern of discrimination through other means. . . . [T]he past sheds
light on the present as well as the future. Past discrimination
. . . may be relevant to show motive and intent as to present
practice or to establish a pattern or practice of discrimination
or to show that present . . . practices are designed to perpetuate
or have the effect of perpetuating a past policy of discrimination.").
Local 496 has a despicable and egregious
history of excluding African Americans from membership. We will
not ignore this legacy of discrimination, paradigmatic of
a continuing violation. To do so would be inequitable and unjust.
Therefore, because the defendants' actions constitute a continuing
violation, the district court correctly considered those actions
which took place prior to the limitations period, as well as those
that occurred within the limitations period. Accordingly, we affirm
the judgment of the district court with regard to this issue.
LIUNA contends that the district court erred
by finding it liable for the alleged racial discrimination of
Local 496. The district court found that LIUNA was liable both
because Local 496 was acting as the international union's agent
and because LIUNA breached its affirmative duty to oppose Local
496's discriminatory practices by neglecting to remedy the alleged
discrimination when it learned of the plaintiffs' claims. Again,
we review these findings of fact for clear error. See Berger v.
Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1407
(D.C. Cir. 1988).
Common law agency theories of vicarious liability
govern the liability of international labor organizations for
the acts of their local unions that violate Title VII and §
1981. See id. at 1427-28. At common law, a principal may be held
liable for the intentional torts of its agent if the agent's conduct
iswithin the scope of his agency and if, with the knowledge of
the conditions, the principal intends the conduct or its consequences.
See id. at 1430. In other words, in a case such as this, "a
plaintiff must adduce specific evidence that the international
`instigated, supported, ratified, or encouraged' those actions,
or `that what was done was done by their agents in accordance
with their fundamental agreement of association.'" Id. at
1427 (quoting Carbon Fuel v. United Mine Workers, 444 U.S. 212,
217-18 (1979)). Furthermore, where an agency relationship exists,
international unions are not only vicariously liable, they have
an affirmative duty to oppose the local's discriminatory conduct.
See Sinyard v. Foote & Davis Div. of McCall Corp., 577 F.2d
943, 945 (5th Cir. 1978).6 Thus, "[a]s a general proposition
. . . international labor unions must bear a heavy responsibility
in giving effect to the remedial provisions of both Title VII"
and § 1981. Id.
In this case, the district court correctly found that LIUNA is liable both vicariously and directly. LIUNA and Local 496 have clearly maintained a principal/agent relationship since March 1985 when LIUNA became a signatory to the National Maintenance Agreement, which included a provision stating that Local 496 was to fill all maintenance laborer positions at Perry.7 However, the structure of the relationship betweenthe local and the international was no different before this date, during Perry's construction phase. The working-in-the- calling requirement, which we have determined had a disparate impact on African Americans, was in fact a product of LIUNA's own Uniform Local Constitution. Article III, § 1(a) provides, "In order to be eligible for membership a person must be working in the calling within the territory of the Local Union in which the individual applies for membership." We are baffled and amazed as to how LIUNA can contend that it did not instigate, support, ratify, or encourage a policy that it created. Moreover, LIUNA was aware and on notice of the charges of discrimination filed against Local 496, as Floyd Conrad and the EEOC both informed LIUNA personnel of such developments. Thus the international cannot feign ignorance, and cannot be excused for breaching its duty to end Local 496's discrimination.8 See Berger, 843 F.2d at 1428 ("Having . . . approved a practice of the local that was later found to be discriminatory in effect, the international would surely have been held accountable for the local's conduct under the agency standard of the common law. .
. ."); see also Sagers v. Yellow Freight
System, Inc., 529 F.2d 721, 736, n.32 (5th Cir. 1976) (stating
that international unions who are parties to national agreements
have a duty under Section 1981 to inquire into the effect of contract
provisions when it is reasonable to assume that such provisions
might lead to discrimination, and that international unions have
an affirmative obligation to protect members from agreements they
help negotiate when such agreements "lock in" past discrimination).
Here, the district court's conclusion that
LIUNA is liable is based on an eminently reasonable interpretation
of the relationship between the international and
local unions. Because the record and the applicable precedent
support the district court's conclusion that LIUNA is liable for
Local 496's discriminatory practices and policies, we affirm the
judgment of the district court on this issue as well.
Defendants contend that even if we affirm
the district court's findings regarding liability, we should determine
that the district court erred in determining the date upon which
Title VII damages began to accrue against LIUNA. Wereview a district
court's designation of the beginning of a back pay period for
an abuse of discretion. See Warren, 138 F.3d at 1094.
Section 706(g) of Title VII, as amended in
1972, provides that "[b]ack pay liability shall not accrue
from a date more than two years prior to the filing of a charge
with the [Equal Employment Opportunity] Commission." 42 U.S.C.
§ 2000e-5(g). Plaintiffs did not file an EEOC charge against
LIUNA until September 7, 1989, and thus defendants argue that
their Title VII liability did not accrue until September 7, 1987.
However, the first plaintiff to file an EEOC charge against Local
496 did so on February 1, 1984. The district court, citing Romain
v. Kurek, 836 F.2d 241 (6th Cir. 1987), determined that back pay
liability against LIUNA commenced more than two years before this
earlier date, on February 1, 1982.9
Romain outlines the conditions under which
an unnamed party may be sued pursuant to the EEOC right-to-sue
letter that results from an EEOC charge. "[A] party
must be named in the EEOC charge before that party may be sued
under Title VII unless there is a clear identity of interest between
the unnamed party and a party named in the EEOC charge."
Id. at 245 (internal quotes omitted). In Romain, this court adopted
two tests for determining whether a party shares an identity of
interest with another party. Under the first, set forth by the
Seventh Circuit in Eggleston v. Chicago Journeymen Plumbers' Local
Union No. 130, 657 F.2d 890 (7th Cir. 1981), an identity of interest
exists when the unnamed party possesses sufficient notice of the
claim to participate in voluntary conciliation proceedings. Romain,
836 F.2d at 245 ("Courts generally find an identity of interest
where the unnamed party has been provided adequate noticeof the
charge under circumstances which afford him an opportunity to
participate in conciliation proceedings aimed at voluntary compliance.").
The second, developed by the Third Circuit in Glus v. G.C. Murphy
Co., 562 F.2d 880 (3rd Cir. 1977), uses four factors to determine
the relationship between the named and the unnamed parties at
the time the charge was filed:
(1) [W]hether the role of the unnamed party
could through reasonable effort by the complainant be ascertained
at the time of the filing of the EEOC complaint;
(2) [W]hether, under the circumstances, the
interests of a named are so similar as the unnamed party's that
for the purpose of obtaining voluntary conciliation and compliance
it would be unnecessary to include the unnamed party in the EEOC
(3) [W]hether its absence from the EEOC proceedings
resulted in actual prejudice to the interests of the unnamed party;
(4) [W]hether the unnamed party has in some
way represented to the complainant that its relationship with
the complainant is to be through the named party.
Romain, 863 F.2d at 246. As might be expected,
because we have found LIUNA vicariously liable for Local 496's
discriminatory practices and directly liable for violating its
duty to stop those practices, under either test LIUNA and Local
496 share an identity of interest.
With regard to the Eggleston test, LIUNA certainly had ample notice of the charges the plaintiffs filed against Local 496.
Floyd Conrad notified regional LIUNA officials
who then informed national LIUNA personnel of all charges and
relevant EEOC findings in this case. In addition, the EEOC and
NLRB directly provided LIUNA with copies of all charges alleging discrimination by Local 496. LIUNAenjoyed
supervisory power to interfere in the affairs of Local 496 and
chose not to exercise that power despite the ongoing charges
of discrimination. In light of this fact, the district court's
finding that LIUNA had been provided with adequate notice affording
it an opportunity to participate in, or at least encourage the
other defendants to participate in, conciliation proceedings is
not an abuse of discretion.
With regard to the Glus multi-factor test, we add the following. First, the plaintiffs were unaware of LIUNA's involvement in the affairs of Local 496 until well after the filing of the original EEOC charge; moreover, one could hardly expect those excluded from union membership to understand the relationship between international and local unions at the time they filed EEOC charges. Cf. Romain, 836 F.2d at 245 ("The `identity of interest' exception acknowledges the reality that laymen, unassisted by trained lawyers, initiate the process of filing a charge with the EEOC, and accordingly prevents frustration of the remedial goals of Title VII by not requiring procedural exactness in stating the charge."). Second, the interests of LIUNA and the local were identical in terms of achieving voluntary conciliation with the plaintiffs during EEOC proceedings.
Third, LIUNA was aware of the EEOC proceedings
and thus was not prejudiced by the plaintiffs' failure to name
it in the original EEOC charge.10 Therefore, under the Glus test,
as under the Eggleston test, we conclude that LIUNA and Local
496 shared an identity of interest.
Because of this identity of interest, LIUNA
could have been sued under the plaintiffs' first EEOC charge.
Accordingly, then, the plaintiffs' second EEOC charge was not
needed and we will not limit plaintiffs' Title VII damages by
the date ofthis second, unnecessary charge. The Second Circuit
reached a similar conclusion in Cornwell v. Robinson, 23 F.3d
694 (2nd Cir. 1994). Cornwell, like the plaintiffs in this case,
was the victim of a pattern and practice of discrimination. Her
original EEOC charge and her original complaint, both filed in
1986, named her employer and a few others. Both failed, however,
to name the individual employees who had been harassing her. In
June 1986, she filed a second EEOC charge naming those employees
for incidents that took place the year after she filed her original
charges. She eventually received a right-to-sue letter against
those employees, but did not actually file a Title VII claim against
them until 1992. After concluding that the incidents in 1986 were
part of the same pattern and practice of discrimination that Cornwell
had endured for several years, and thus were naturally "reasonably
related" to the discrimination that she had complained of
in her original EEOC charge, the Second Circuit concluded that
Cornwell's claim against the employees was not time barred, despite
the fact that Title VII requires plaintiffs to sue within 90 days
of the receipt of a right to-sue letter. The court concluded:
we can see no basis in Title VII or in reason
for concluding that the agency's response to her unnecessary administrative
claim imposed on her time constraints to which she would not have
been subject had she not filed the unnecessary claim. A contrary, "technical" reading of
a remedial statute such as Title VII would be particularly inappropriate
in a statutory scheme in which laymen, unassisted by trained
lawyers, initiate the process.
Id. at 706. We agree. Thus, we conclude that
the district court did not abuse its discretion by determining
that the parent union's liability began to accrue at the same
time as the local union's liability on February 1, 1982, and we
affirm the judgment of the district court with regard to this
The plaintiffs argue that the district court
erred in establishing January 15, 1992 as the termination date
of damages. The plaintiffs suggest that the district court should
have adopted the magistrate judge's recommendation that damages
terminate on the date that final judgment in the case is entered.
We review a district court's order establishing the termination
date of damages for an abuse of discretion. See Thornton v. East
Texas Motor Freight, 497 F.2d 416, 422 (6th Cir. 1974).
In this case, the district court declined
to adopt the magistrate judge's recommendation that the termination
date for damages coincide with the final judgment date. The district
court reasoned that:
The [order regarding liability] found [Local
496's] referral policy adopted in October 1987 to be `facially
objective and non-discriminatory.' With that finding, injunctive
relief and job opportunities were available to the class following
the liability decision. On January 15, 1992,
attorneys for the class were in a position to request injunctive
relief regarding future referrals. There is no good reason to
allow damages beyond January 15, 1992. . . . The ending date for
all damages is January 15, 1992.
The district court's conclusion was not based
on an erroneous finding of fact or an incorrect application of
the law. Thus, it was not an abuse of discretion. See Warren,
138 F.3d at 1095; see also Thornton, 497 F.2d at 416 (concluding
that district court's order establishing termination
date of back pay relief in job discrimination case on date the
employer changed its discriminatory policy rather
than the date when the court made the final award of damages was
notan abuse of discretion). We accordingly affirm the judgment
of the district court with regard to this issue.11
Plaintiffs contend that the district court
erred by sanctioning their attorney for alleged misconduct pertaining
to LIUNA's discovery requests. We review a district court's imposition
of sanctions on attorneys for an abuse of discretion. See Palmer
v. United States, 146 F.3d 361, 363 (6th Cir. 1998) (citing Cooter
& Gell v. Hartmax Corp., 496 U.S. 384, 405 (1990)). "A
district court would necessarily abuse its discretion if it based
its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence." Id.
As Magistrate Judge Hemann stated, the history
of the discovery disputes that took place during the damages phase
of this action "need not be repeated here. Suffice it to
say that [Judge Hemann] spent considerable time dealing with defendants'
complaints about plaintiffs' failures to provide in some cases
any, and in most cases all, requested discovery." With regard
to these complaints, LIUNA filed a motion to dismiss forty-four
members of the plaintiff class. In opposing LIUNA's motion, all
except six of the plaintiffs cured the complained-of deficiencies.
Judge Hemann therefore recommended that the district court deny
LIUNA's motion to dismiss, noting the huge number of interrogatories
defendants propounded. Judge Hemann went on to suggest specific
action with regard to the six stragglers. She also suggested that
the district assess, against all forty-four plaintiffs who were
the subject of LIUNA's motion to dismiss, the attorneys' fees
LIUNA incurred in filing the motion to dismiss. The district court
adopted the report and recommendation, but ordered that plaintiffs'
counsel, rather than the plaintiffs themselves, pay the attorneys'
Nothing in the record leads us to believe
that the district court misapplied the law or based its imposition
of sanctions on a clearly erroneous assessment of the evidence.
Therefore, we conclude that the district court did not abuse its
discretion and affirm the imposition of sanctions on plaintiffs'
For the foregoing reasons, with regard to
the appeal, we AFFIRM the judgment of the district court in all
respects. With regard to the cross-appeal, we also AFFIRM the
judgment of the district court.______________________________________________
ALICE M. BATCHELDER, Circuit Judge, concurring
in part and dissenting in part. For the reasons that follow, I
would affirm the district court's finding of discriminatory impact,
remand for further factual findings regarding discriminatory treatment, and reverse the district court's
finding of liability against LIUNA. I concur in the majority's
affirmance of the district court's imposition of discovery sanctions
against the individual Plaintiffs and Plaintiffs' counsel.1
This case involves an employment discrimination
class action suit filed on December 20, 1984, brought under 42
U.S.C.A. § 2000e, et seq. (West 1994 & Supp. 1998)
("Title VII") and 42 U.S.C.A. § 1981 (West 1994
& Supp. 1998). Originally named as defendants were Local 496 of the Laborer's
International Union of North America ("Local 496") and
a number of electric power companies that were later dismissed
from the suit. By orders dated October 28, 1985, and March 6,
1986, individual discrimination suits filed by Plaintiffs
Colvin; Lilly; Turner, II; Pouewells; Coffee, Sr.; Johnson, Jr.;
and Rice against Local 496 and Local 496'sBusiness Manager, Floyd
Conrad,2 were consolidated with the class suit.
On January 26, 1988, the court certified
a class of All Black persons who, on or before [January
26, 1988], have sought membership in Local 496 and/or employment
either by application or by referral under the policy
described in the collective bargaining agreement of March 9, 1973,
by which the defendant union agreed to make referrals to employers
at the Perry Nuclear Power Plant site.
Cheryl Journigan was the last class member
to file an EEOC charge against Local 496; she filed on January
10, 1985. On September 7, 1989, Plaintiffs Colvin and
Tomblin filed additional EEOC charges alleging that they had recently
discovered that Laborer's International Union of North America
("LIUNA") was aware of their EEOC charges against Local
496 but had intentionally refused to investigate the matters;
these were the first allegations in this case levied against LIUNA.
On January 12, 1990, the class moved to amend
their complaint to add LIUNA as a party defendant. The suit originally
was set for trial on January 17, 1990, but the trial court found
that LIUNA was an indispensable party and on January 19, 1990,
granted the Class leave to amend their complaint. On January 22,
1990, Plaintiffs Tomblin and Colvin filed "amended"
charges of discrimination, again alleging that they had recently
discovered that LIUNA had intentionally failed to investigate
the discrimination charges. Colvin received his right to sue letter
on March 26, 1990, and on March 30, 1990, the Class filed an amended
complaint, adding LIUNA and Business Manager Conrad as party defendants.
The court bifurcated the liability and damages
proceedings. After a 1991 trial on liability issues, on December
10, 1991, the district court found that Local 496 and Conrad had
engaged in a pattern or practice of discriminatory treatment and
were liable under a disparate impact theory, both in violation
of Title VII and § 1981. The court also ruled that LIUNA
was similarly liable because LIUNA had an agency relationship
with Local 496 and because it had an affirmative duty to oppose
its local affiliate's discrimination.
During the discovery period of the damages
phase, the court imposed sanctions on five individual Plaintiffs
and on Plaintiffs' counsel for failure to comply
with LIUNA's discovery demands. During the damages portion of
the trial, the parties reached a partial settlement wherein Local
496 and LIUNA agreed to make an initial payment to the Class;
additional damages payments depend on the outcome of this appeal,
and all parties reserved the right to appeal any order other than
the judgment journalizing the settlement. The district court approved
the parties' settlement agreement, and on July 19, 1996, the court
formally dismissed the class action suit. All parties timely noticed
Appellants Local 496 and LIUNA now claim that the trial court committed clear error in finding that Plaintiffs proved race discrimination under either a disparate impact or a disparate treatment theory. Appellant LIUNA also asserts that the trial court erred in finding that LIUNA was liable pursuant to either an "agency theory" or an "affirmative duty" theory.
Plaintiffs cross- appeal, claiming that the
district court abused its discretion in imposing sanctions against
Plaintiffs and their counsel for discovery violations.
In 1973, Local 496 signed a project labor
agreement ("PLA" or "1973 agreement") governing
the construction of the Perry Nuclear Power Plant ("Perry"),
which is located inLake County, Ohio. LIUNA was not a signatory
to this agreement. In the absence of the PLA, LIUNA's Uniform
Local Union Constitution, which governs Local 496, would require:
"In order to be eligible for membership a person must be
working at the calling within the territory of the Local Union
in which the individual applies for membership." LUINA Uniform
Local Constitution, Art. III, § 1(a). In other words, according
to the Local Constitution, a nonmember must secure a union job
before he or she is eligible to become a union member. If an individual
obtained such a job, he or she was required to join Local 496
within eight days of beginning such employment.
The PLA, however, required in part that applicants
for work on the Perry project be referred without regard to union membership.3 Thus, the Perry contract essentially
included a contractual waiver of the working-at-the-calling rule.
Defendant Conrad admits that pursuant to this agreement, Local
496 operated as an "exclusive hiring hall" for laborers
at Perry, and had an obligation to refer both members and non-members
for the laborer jobs.
Perry's construction phase lasted from 1973
to 1985. Thereafter, work at Perry was considered "maintenance"
andwas performed under the National Maintenance Agreement, effective
March 4, 1985. LIUNA signed the maintenance agreement; Local 496
did not. Local 496, however, continued as the referral agent for
laborers at Perry.
Local 496's union hall is located in Madison,
Ohio, and its geographical jurisdiction is limited to Lake County.
Lake County is bordered to the east by Ashtabula County, to the
south by Geauga County, to the west by Cuyahoga County, and to
the north by Lake Erie. Local 496's craft jurisdiction is limited
to commercial and industrial building construction. When Perry's
owners first began to build Perry, a jurisdictional dispute arose
between Local 496 and LIUNA Local 860, whose craft jurisdiction
is "heavy construction," which includes roads, sewers,
site preparations, bridges, dams, and airport runways, and whose
geographic jurisdiction includes Lake, Cuyahoga, and Geauga counties.
LIUNA resolved this dispute by splitting the work between the
two Locals. Local 496, however, remained the exclusive referral
source for laborers at Perry. As the Business Manager, Defendant
Conrad personally had exclusive control over union referrals to
all Perry contractors.
Local 496's membership is overwhelmingly
white. Between 1980 and 1985, the total number of active members
ranged from 509 to 545, while the number of black members ranged
from 16 to 20. During this same period, black members comprised
between 2.88% and 3.59% of total membership. Approximately 30%
(145 of 507) of Local 496 members were related to one another.
Between April 1982 and February 1984, 42 new members, none of
whom was black, were initiated into the Local 496. From 1980 to
1985, the union accepted a total of 54 new members, one of whom
Over the years, the referral practices of
Local 496 have varied. Prior to October 1987, the union did not
have in placea written referral policy. Local 496 admits that
in response to contractor requests during the pre-1987 period,
the union referred only members, in contravention of the PLA.
Unemployed members could sign a spiral notebook located in the
union hall, and from that notebook, Conrad would compile a master
list of unemployed members from which he made referrals. At most
times, non- members could also sign the notebook, but they were
not included on the master referral list. During this period,
Local 496 accepted as new members those who obtained contractor-letters
or were hired directly by contractors.
In 1987, however, as part of a settlement
of an NLRB charge filed by a white non-member, Local 496 instituted
a new, written, referral policy. Under this policy, both members
and nonmembers could sign the unemployed list, and referrals were
to be made in the order that the names appeared on the list. Each
month, the secretary was to prepare a new master list, deleting
the names of individuals from the prior month's list who either
(1) had worked more than 40 hours the prior month, or (2) had
not contacted the union during the prior month and informed the
union that he or she was still unemployed and was still interested
in staying on the list. Plaintiffs' counsel, Edward Kramer, received
a copy of these rules on August 30, 1989.
Even with the changed referral policy, the
union admitted that it never actually referred a non-member to
a job at Perry.4 With one exception, however, after May 1985,
no class member communicated with Local 496 for the purpose of
becoming a union member and/or seeking a referral. Sometime between
January 19 and 22, 1990, Plaintiffs Colvin and Tomblin went to
Local 496's hall and signed the unemployed list. At the time of
signing, their names were92nd and 93rd on the list. While they
were at the hall, no one informed Colvin or Tomblin about the
monthly re-notification requirement.5 Colvin and Tomblin testified
that Mr. Harrington, a union representative, did tell them that
to join the union, one must be working at the calling. On February
1, 1990, Local 496's secretary prepared a new unemployed list
on which Colvin and Tomblin occupied the 65th and 67th positions.
Neither Colvin nor Tomblin wrote or otherwise informed Local 496
during February 1990 or thereafter that he remained unemployed
and continued to be interested in referrals. When the secretary
prepared the March 1990 list, she removed Colvin and Thomas's
LIUNA and Local 496 are separate entities;
the locals negotiate their own contracts, spend their own funds,
own their own property, etc. At all relevant times, the Local
496 referral system was administered solely by Local 496. The
constitutions of LIUNA and Local 496, however, provide LIUNA with
supervisory power over Local 496. LIUNA retained the power to
suspend or dissolve the charter of Local 496, and testimony established
that LIUNA had the authority to correct "blatantly"
discriminatory policies of local affiliates.
The district court found that LIUNA "has
continually refused to investigate charges of discrimination or
take any action to correct [Local 496's] illegal conduct."
Local 496 frequently notified LIUNA of the race discrimination
complaints that had been lodged against it, and LIUNA kept a file
of documents pertaining to the discrimination claims. No class
member, however, ever contacted LIUNA regarding a discrimination
complaint. In an interrogatory answer, LIUNA stated that it never
investigated the specificdiscrimination complaints lodged with
the EEOC by Colvin and Tomblin in 1984 against Local 496, but
that it instead mailed copies of the complaints to Thomas Arconti,
LIUNA's Regional Manager in charge of Local 496. It also stated
that this was consistent with LIUNA's established practice upon
receipt of similar complaints, and cross-references its answers
to earlier interrogatories.6
The evidence of record shows that several
times in 1984 and 1985, Thomas Arconti met with Local 496 members,
a number of whom were black, to discuss problems they were having
getting referrals from Local 496. Also at that time, they discussed
the discrimination complaints of a non-class member, Donald Robinson.
Thomas Arconti died on May 1, 1989, prior to the filing of discrimination
charges against LIUNA either with the EEOC or in the Amended Complaint;
it is not clear from the record what his investigation disclosed.
Appellants Local 496 and LIUNA assert that
the trial court committed clear error in finding that the Plaintiffs
proved race discrimination under either a disparate impact or
a disparate treatment theory. While I concur in the majority's
conclusion that we must uphold the district court's finding of
disparate impact, I believe that we cannot affirm the findings
of disparate treatment because the dearth of relevant factualfindings
leave us unable to evaluate properly the court's finding of discriminatory
We review a district court's factual finding
of discrimination only for clear error. Jackson v. RKO Bottlers
of Toledo, Inc., 743 F.2d 370, 374 (6th Cir. 1984). Thus, findings
with regard to the evidence necessary to establish a prima facie
case of employment discrimination are reviewed under the clearly
erroneous standard. See id. at 374-77.
Title VII prohibits discrimination by a union
against its members on the basis of race, color, religion, sex,
or national origin. 42 U.S.C.A. § 2000e-2(c). Racial discrimination
is also prohibited by 42 U.S.C.A. § 1981; claims brought
under § 1981 are governed by the same evidentiary framework
applied to Title VII claims. Patterson v. McLean Credit Union,
491 U.S. 164, 186 (1989).
In cases where plaintiffs allege that because
of their race they were treated differently from Caucasian individuals, plaintiffs bear the initial burden of establishing
by a preponderance of the evidence a prima facie case of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In
these "disparate treatment" cases, plaintiffs must prove
that the defendant had a discriminatory intent or motive, which
in some situations may be inferred from the mere fact of differences
in treatment. Watson v. Fort Worth Bank & Trust, 487 U.S.
977, 986 (1988); International Bhd. of Teamsters v. United States,
431 U.S. 324, 335 n.15 (1977). Plaintiffs may establish such intent
either directly, by producing direct evidence of discrimination,
or inferentially, by a showing of the following four elements:
(1) plaintiffs belong to a protected class; (2) plaintiffs applied
for and were qualified for employment; (3) despite their qualifications,
plaintiffs were denied a favorable employment decision; and (4)
persons outside of the protected class with substantially similar
or lesser qualifications received the jobs.
McDonnell Douglas, 411 U.S. at 802. Where plaintiffs allege a
system-wide "pattern or practice" of discrimination,
they must ultimately prove more than the mere occurrence of isolated
or sporadic discriminatory acts; they must establish
that racial discrimination was the defendant's "standard
operating procedure." Teamsters, 431 U.S. at 336 & n.16.
Upon the plaintiffs' satisfaction of their prima facie case, the
burden then shifts to the defendant to show a legitimate, nondiscriminatory
business reason for acting as it did. If the defendant makes such
a showing, the burden shifts back to the plaintiffs to show that
the employer's stated reason is really a pretext for unlawful
discrimination. Watson, 487 U.S. at 985-86.
Title VII proscribes "not only overt
discrimination but also practices that are fair in form, but discriminatory
in operation." Griggs v. Duke Power Co.,
401 U.S. 424, 431 (1971). In a so-called "disparate impact"
case, the plaintiffs need not prove that the defendant intended
to discriminate; instead, plaintiffs must prove that a particular
employment practice, although neutral on its face, has caused
a disproportionate adverse effect on a protected group. See Wards
Cove Packing Co. v. Atonio, 490 U.S. 642, 657, 109 S. Ct. 2115,
2125 (1989); United States v. City of Warren, 138 F.3d 1083, 1091
(6th Cir. 1998); Scales v. J.C. Bradford & Co., 925 F.2d 901,
907 (6th Cir. 1991). Once the plaintiffs have established the
adverse effect, the burden shifts to the employer to produce evidence
that the challenged practice is a business necessity. Wards Cove,
490 U.S. at 658-59. The plaintiffs can defeat a defendant's asserted
businessjustification by showing either that the justification is a pretext, or that there
exists an alternative practice with less racial impact that will
achieve the same business end. Id. at 658.
Evidence of disparate impact usually focuses
on statistical disparities rather than on specific incidents.
Watson, 487 U.S. at 987. We have frequently stated that to prove
a prima facie case of disparate impact, plaintiffs must (1) identify
a specific employment practice; and (2) "show an adverse
effect caused by the employment practice by offering `statistical
evidence of a kind or degree sufficient to show that the practice
in question has caused the exclusion of applicants for jobs .
. . because of their membership in a protected group.'" Scales,
925 F.2d at 908 (quoting Watson, 487 U.S. at 994); see also City
of Warren, 138 F.3d at 1093.
We have also held, however, that "statistical
evidence is not absolutely essential in proving a disparate impact
case[; nonetheless,] there must be proof of disparity
using the proper standards for comparison." Gibson v. Frank,
946 F.2d 1229, 1233 (6th Cir. 1991); see also Thomas v. Washington
County Sch. Bd., 915 F.2d 922, 926 (4th Cir. 1990) (statistics
are "neither the exclusive nor a necessary means of proof"
in disparate impact cases). The Supreme Court has made clear that
the proper comparison in a disparate-impact case is between "`the
racial composition of [the at- issue jobs] and the racial composition
of the qualified . . . population in the relevant labor market.'"
Wards Cove, 490 U.S. at 650 (alterations in original) (quoting
Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 (1977)).
The district court found that Plaintiffs established a prima facie case of discrimination under a disparate impact theory.
Plaintiffs identified the members- only referral
policy and the imposition of the working-at-the-calling requirement,
in spite of its waiver in the PLA, as the employment
practices causingthe adverse effect. Plaintiffs asserted that
in conjunction with these practices, two different
types of "nepotism" operated to exclude blacks from
jobs at Perry: (1) members who were already working at Perry
could approach a contractor to get a relative or friend a union
job; (2) members would approach Conrad to get relatives or friends
Both sides submitted statistical analyses
and expert testimony purporting to show that black membership
in Local 496 was or was not proportionally low in a statistically
significant way. While the experts agreed on the appropriate technique,
i.e., standard deviation analysis, they disagreed upon how to
define the relevant qualified labor force to which Local 496's
membership must be compared.
The disagreement was primarily geographical.
The experts agreed that the court should look at the numbers associated
with both the General Occupational Category ("GOC")
of "operators, fabricators and laborers," which included
machine operators and tenders (except precision), fabricators,
assemblers, inspectors and samplers, transportation occupations,
material moving equipment operators, handlers, equipment cleaners,
helpers, and laborers, and the Specific Occupational Category
("SOC") of "handlers, equipment cleaners, helpers,
and laborers." They disagreed, however, on which persons
falling under these categories should be included in the relevant
labor force pool.
According to the 1980 Census, the residency
figures in the four counties from which Local 496 drew 93.5%8
of its members broke down as follows:
Geauga431 35,352445,8129 1,217
As an initial matter, I note that the parties
stipulated that "1762 persons employed in [the SOC] Category
in Cuyahoga, Lake, Ashtabula and Geauga counties were black."
Despite the stipulation, I think that this number is obviously
incorrect. Both experts purported to rely on statistics gathered
from the 1980 Census. For the stipulated number to be accurate,
the 1980 Census numbers for Cuyahoga County alone would be wrong,
as would the resulting percentages. There is no support whatever
in the record for this number, and the parties have not used it
in their calculations. Thus, I too have ignored it. In addition,
I note that the district court found that 23.4% of the SOC workforce
in Cuyahoga, Lake, Ashtabula, and Geauga counties was black. That
percentage figure does not appear in either party's calculations
and does not find any support in the record. The court did, however,
expressly claim to rely on the 1980 Census figures for this information.
Therefore, I have used the number actually reported by the 1980
Census, i.e., 21.54%, as the comparison figure adopted by the
Plaintiffs' expert, Dr. Pendleton, opined
that the relevant labor force numbers should be drawn from the
entire four-county area. His opinion was based on several factors:
(1) 93.5% of Local 496's membership lived in these four counties;
(2) the pay scale (approximately $14.00/hr for Perry laborers
vs. an average of $6.66/hr for all jobs, including professional
occupations) and the relatively low skill-level required to perform
the job necessitated consideration of anexpanded geographic area
because people would be willing to travel farther; and (3) the
extensive highway system between Cuyahoga and Lake counties increased
the distance which people would be willing to travel for work.9
Dr. Pendleton testified that he did not "weight" his
figures according to commuter patterns/population proportionality
because there was evidence of a "chilling effect," i.e.,
when there has been either word-of- mouth recruiting or media
coverage of past discrimination suits, both of which were present
in this case, potential applicants remove themselves from the
applicant pool and therefore skew the weights. Applying standard
deviation analysis, Dr. Pendleton found that there was a statistically
significant underrepresentation of blacks in Local 496's union
Defendant's expert, Dr. Martin, opined that
the relevant labor force numbers should instead include only those
individuals within the GOC or SOC who presently work in Lake County,
regardless of residency. She based this opinion on the fact that
Local 496's membership policy states that one must be working
in Lake County at the time one applies formembership.11 Using
the applicant pool so-defined, Dr. Martin concluded that there
was not a statistical underrepresentation of blacks in Local 496's
Local 496 contends on appeal that the district
court's finding of disparate impact cannot stand because the court
failed to identify properly the relevant labor market. Wards Cove
makes clear that defining the relevant labor force is of paramount
importance. 490 U.S. at 650-51. This determination, however, is
a factual question, which we review only for clear error. See
EEOC v. O&G Spring & Wire Forms Specialty Co., 38 F.3d
872, 876-78 (7th Cir. 1994). We have previously described "clear
error" as when the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has
been committed. The question is not whether the
finding is the best or only conclusion that can be drawn from
the evidence, or whether it is the one which the reviewing court
would draw. Rather, the test is whether there is evidence in the
record to support the lower court's finding, and whether its construction
of that evidence is a reasonable one.
Heights Community Congress v. Hilltop Realty,
Inc., 774 F.2d 135, 140 (6th Cir. 1985).
The district court defined the relevant labor
pool as follows:
The relevant geographic area for purposes
of comparison of the labor force with the membership of Local
496 is the four-county area from which the union draws the
majority of its members, not only the countyover which the local
has jurisdiction . . . . The four-county area is comprised of
Lake, Ashtabula, Cuyahoga and Geauga counties.
The court then concluded:
Local 496's membership and referral policies
have resulted in a disproportionately small percentage of black
union members as compared to the relevant labor force. Plaintiffs'
statistical evidence shows a gross disparity between the percentage
of blacks in the membership of Local 496 and the labor force of
the four-county area, both in terms of total number of members
during the relevant period and in terms of the new members taken
in during this period.
The statistical disparities are sufficient
to establish a prima facie case of discrimination under the disparate
impact theory. In addition, other evidence of discriminatory
treatment of class members supports the statistical evidence and
together the evidence raises an inference of intentional discrimination.
After reviewing the evidence, I cannot say
that the four-county area clearly is too broad a measurement.
It is true that earlier in its factual findings, the court described
Dr. Pendleton's definition of the relevant labor pool as "either
the GOC or the SOC for the four-county area, rather than limited
to the GOC or the SOC working in Lake County," and stated
that "the basis of Dr. Pendleton's report is too broad."
It thus appears that the court's statements concerning Dr.Pendleton's
definition of the relevant market and its own definition of the
relevant market are, on their faces, internally inconsistent.
But looking at the opinion and the record as a whole, I conclude
that they are not inconsistent in substance.13
The court explicitly rejected Dr. Martin's
opinion that the relevant market should include only those who
presently work in Lake County. I would agree that Dr. Martin's
definition is entirely too narrow. In fact, it begs the question.
As the district court observed:
The weakness of Dr. Martin's argument or
conclusion is that it does not take into consideration the fact
that there may be discrimination in the hiring of the 6,488 employees
in the GOC in Lake County. In other words, if in the hiring of
all of the 6,488 employees in the GOC in Lake County there was
in fact discrimination, then 5% blacks would not be a proper figure.
Dr. Martin's conclusion assumes that there was no discrimination
in the hiring of blacks in the GOC and, thus, her conclusion that
the applicant pool is 5% black may or may not be valid.
See Clark v. Chrysler Corp., 673 F.2d 921,
928 (7th Cir. 1982) (recognizing that the danger of "weighting"
a relevant labor market calculation to reflect commuter patterns
is that the geographic recruiting and employment practices may
themselves be tainted by racial discrimination). In addition,
I see no reason to assume that persons currently driving to work
in Cuyahoga, Ashtabula, or Geauga Counties would notbe willing
to drive an equal time or distance to work in Lake County if desired
jobs were available. Moreover, Dr. Martin's definition relies
on the existence of the working-at-the-calling requirement. Under
the PLA between Perry and Local 496, however, persons not yet
working in Lake County and persons not yet members of Local 496
can be referred to Perry and then admitted into membership. Thus,
there is no factual basis for Dr. Martin's arbitrary limitation.
As listed above, Dr. Pendleton's testimony
provided several reasons why the court should consider the population
figures for all four counties, not the least of which was the
relatively high wages that laborers at Perry earned. Compare EEOC
v. Chicago Miniature Lamp Works, 947 F.2d 292, 302 (7th Cir. 1991)
(finding it necessary to consider commuting times because the
jobs at issue paid low wages and provided little opportunity for
advancement, and therefore were more likely to be filled by those
living close by). I find these reasons persuasive and sufficient
grounds for the court to include the entire four-county area in
the relevant labor market.
Moreover, if it is appropriate to include
in the relevant labor market the bordering Ashtabula and Geauga
Counties, which Defendants do not contest, obviously at least
some portion of the bordering Cuyahoga County must also be included.
If, for proximity reasons, the court were to limit the portion
of Cuyahoga County includable in the relevant labor market to
something less than the entirety of Cuyahoga County, in all likelihood,
black percentages would increase: the majority of Cuyahoga County's
black population resides on the county's east side, i.e., the
side located closer to Lake County and the Perry plant. See, e.g.,
United States v. City of Parma, 661 F.2d 562, 565-66 (6th Cir.
1981); Banks v. Perk, 341 F. Supp. 1175, 1178 (N.D. Ohio 1972),
aff'd in part, rev'd in part, 473 F.2d 910 (6th Cir. 1973). Thus
the court'sdefinition of the relevant labor market was not clearly
As the court found, whether one compares
the relevant labor market population percentage (SOC--21.54%;
GOC--21.79%) to the Local 496's total black membership numbers
(2.88% - 3.59%) or to the number of new black members admitted
during 1982-84 (0%) or 1980-85 (approximately 2%), the disparity
is statistically significant. Thus, despite the confusion as to
numbers in the district court's opinion, I conclude that the court's
finding of a "gross disparity between the percentage of blacks
in the membership of Local 496 and the [relevant] labor force"
was not clearly erroneous.
Local 496 further argues that the court failed
properly to link the statistical disparity shown to the employment
practices at issue. In addition to its statistical findings, however,
the court cited considerable anecdotal evidence showing that these
disparities were in fact caused by the members-only referral policy
and the imposition of the working-at-the-calling rule. See Gibson,
946 F.2d at 1233 (a plaintiff may establish disparate impact on
a racial minority without statistical evidence).
The court's list of evidence included: the
bargaining agreements; that employers, by custom, practice and
agreement, could hire employees without any union oversightregarding
discrimination; that the union admitted into membership anyone
whom an employer hired; that in 1975, union membership was 100
with 10 black members, while in 1985, membership was 500 with
20 black members; that Perry was a "closed shop"
arrangement; that in response to non- specified employer requests
for workers, the union sent only members and never sent a
non-member; that because of security, the average applicant could
not gain access to Perry employers to be hired, while present
union members, stewards, and foremen had direct access to such
employers and could recommend their relatives and friends to employers
for jobs, thereby rendering these relatives and friends "working
in the calling"; and that approximately 30% of all union
members, and 30% of those hired at Perry, were relatives of existing
union members. The court also found that when a contractor specifically
asked for a minority worker, instead of sending one of the black
non-member plaintiffs, Conrad would instead contact Local 860
to obtain a referral. In addition, as the court noted, Conrad
essentially admitted that he knew that employers relied on their
white, but not black, superintendents and foremen to acquire additional
Given the extreme statistical disparity between
the number of blacks in the relevant labor pool and the number
of new black members added to Local 496 between 1980 and
1985, the district court did not clearly err in finding that this
disparity was caused by Local 496's members-only referral policy
and the working-at-the-calling rule. Perry is a closed shop. Local
496 admittedly referred only members to Perry during the time
period in question. To become a member of Local 496, one had to
be working-at-the-calling in Lake County, but during the time
in question, Perry was the primary employer of laborers in all
of Lake County. Also during the relevant period, all of the class
members approached the union, requested membership and/or referrals
to Perry, and were denied the same. It is therefore reasonable
to conclude that the challenged practices caused the statisticaldisparity.
Consequently, I agree that this court must affirm the district
court's finding of disparate impact.15
The district court held that Plaintiffs proved
a prima facie case of disparate treatment under the McDonnell
Douglas test because: (1) plaintiffs are black; (2) they
were available for referral by the union for job opportunities
at Perry; (3) they did not receive referrals despite the fact
that as nonmembers, they should have been referred according to
the PLA; and (4) white non- members were referred to jobs to which
plaintiffs had applied and were made members of Local 496. The
court also summarily stated that the evidence demonstrated that
Local 496 failed to inform minorities of its procedures for membership
and job referrals.
On appeal, Local 496 devotes considerable
energy to attempting to discredit the court's conclusions that
Local 496 referred white, but not black, non-members to jobs at
Perry and that Local 496 failed to inform minorities, but informed
white persons, about membership and referral procedures. Plaintiffs
respond by pointing to evidence in the record that could support
the court's conclusions. While there is evidence in the record
that, if credited, might support the district court's findings,
"[i]t has long been clear that when the court does not make
findings which are sufficient to indicate the factual basis for
its ultimate conclusion, the appropriate procedure is to vacate
the judgment and remand for such findings." Gonzales v. Galvin,
151 F.3d 526, 532 (6th Cir. 1998) (emphasis omitted); accord Deal
v. Cincinnati Bd. of Educ., 369 F.2d 55, 63-64 (6th Cir. 1966)
(there mustbe subsidiary findings to support the ultimate conclusions
of the court).
In its findings of fact, without further
explanation, the district court summarily stated that the working-at-the-calling
requirement was waived "primarily" for white applicants.
The only expansion on this conclusory finding is the court's statement
in its conclusions of law that "the evidence in the record
shows a pattern and policy of favoritism to friends and relatives."
The court fails to provide us with a single clue as to who these
"friends and relatives" allegedly receiving favorable
treatment were, or how, when, or how often the working-at-the-calling
rule was waived in this manner, or for that matter, whether such
waivers were racially disproportionate. Similarly, while the court
did find that in 1990, black class members were not informed of
the monthly renotification requirement, the evidence of record
reflects only one instance where the union failed to provide a
copy of its referral policy. The court failed to make any other
findings with respect to the union's failure to provide membership/referral
policy information. Thus, I do not believe that we can assess
whether Local 496 maintained a "pattern and practice"
of refusing to inform minorities of membership and referral procedures.
Moreover, the court has not provided us with any reasons
to support its implicit conclusion that white persons were given
such information. We simply do not know what evidence the court
credited in reaching its conclusion that Plaintiffs had been treated
in a discriminatory manner.
[A] district court's findings "should
be comprehensive and relevant to the issues so as to provide a
rational basis for the trial court's decision." In addition,
the "findings should be explicit so as to give the appellate
court a clear understanding of the basis of the trial court's
decision, and to enable it to determine the grounds on which the
trial court reached its decision."
Sanders v. Dorris, 873 F.2d 938, 942-43 (6th
Cir. 1989) (district court's failure to discuss evidence supporting
pattern and practice discrimination) (quoting Grover Hill Grain
Co. v. Baughman-Oster, Inc., 728 F.2d 784, 792 (6th Cir. 1984))
(internal citation omitted); see also Gonzales, 151 F.3d at 532.
In short, due to the court's complete failure to make relevant
factual findings, we cannot discern the grounds for its decision
and we therefore have no basis upon which to determine whether
its conclusions were clearly erroneous. Therefore, I would remand
this issue to the district court to provide explicit factual findings
explaining the basis for its conclusions.
We review de novo a district court's conclusions
of law, Waxman v. Luna, 881 F.2d 237, 240 (6th Cir. 1989) (per
curiam), but review its findings of fact only for clear error,
Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 374 (6th
The National Maintenance Agreement, signed
by LIUNA and effective at Perry in March 1985, provided in part:
The employer agrees to hire men in any territory
where work is being performed or is to be performed in accordance
with the hiring procedure existing in the territory where the
work is being performed or is performed; however, in the event
the Local Union is unable to fill the request of the Employer
for Employees within a forty-eight (48) hour period after such
request for Employees . . ., the Employer may employ workmen from
The Agreement also contained a non- discrimination
clause, which stated: "The Union and the Employer agree to
abide by all Executive Orders and subsequent amendments thereto,
regarding the Civil Rights Act of 1964, pertaining to non discrimination
in employment, in every respect."
The district court found that "[a]t
all relevant times, the referral system was administered solely
by Local 496; no International Union representative or agent
has participated in its operation." The court also found
that LIUNA "was aware of the discriminatory actions being
take by the defendant[s] Local 496 and Floyd Conrad since May
of 1983, but has continually refused to investigate charges of
discrimination or take any action to correct this illegal conduct."
It is undisputed, however, that no class member ever contacted
LIUNA to register a discrimination complaint or to ask LIUNA to
investigate his or her situation.
The district court concluded that LIUNA was
liable under a principal-agent theory for the discriminatory actions
of Local 496 because both before and after March 1985, LIUNA was
"aware" of Local 496's actions regarding its refusal
to make referrals to class members or to permit them to become
union members, and because LIUNA "acquiesed" in those
actions. The court also held that LIUNA had an affirmative duty
under Title VII and § 1981 to oppose Local 496's discriminatory
practices because for several years LIUNA had knowledge of the
class members' charges of discrimination against Local 496 and
of some resulting EEOC reasonable cause findings, and because
LIUNA had signed the National Maintenance Agreement, which regulated
labor relations at Perry.
An international union may be liable for
the discriminatory practices of an affiliated local if, in carrying
out such practices, the local is acting as the international's
agent. See Berger v. Iron Workers Reinforced Rodmen Local 201,
843 F.2d 1395, 1426-33 (D.C. Cir. 1988).16 Thus,
to be liable under Title VII, an international must "participate
in" or "authorize, ratify, or approve"
of the particular condition about which the plaintiff complains.
See id. at 1428-32.17Contrary to the statements of the
district court, mere "acquiescence" is not enough. To
be similarly liable under § 1981, the plaintiff must also
prove that the relationship between the international and the
local is sufficient to impute discriminatory intent. Id. at 1430.
In the present case, the district court's
findings and the parties' stipulations foreclose a finding that
LIUNA "participated in" the discriminatory referral
process. The closer question, of course, is whether, by signing
the National Maintenance Agreement, and therein obligating contractors
to "hire men in any territory where work is being performed
or is to be performed in accordance with the hiring procedure
existing in the territory where the work is being performed or
is to be performed," when LIUNA knew or should have known
of Local 496's discriminatory practices, LIUNA "authorized,
ratified, or approved" Local 496's referral practices.
In General Building Contractors, like in
the present case, the plaintiffs charged that the union had engaged
in a pattern and practice of racial discrimination by systematically
denying access to union referral lists and by arbitrarily skewing
referrals in favor of white workers. The Court held that the mere
fact that trade associations and employers had delegated to the
union the authority to select workers, and the union, in effectuating
that delegation, intentionally discriminated or produced a discriminatory
impact, alone was not enough to support an agency relationship.
458 U.S. at 391-94. Likewise, this court cannot find that merely
securing in the National Maintenance Agreement a promise that
the contractors will follow Local 496's hiring procedures, whatever
they may be, without any concurrent control over those procedures,
is sufficient to render LIUNA a principalresponsible for Local
496's discriminatory actions. This is particularly so because
the same agreement that Plaintiffs and the district court would
read as reflecting LIUNA's acquiescence in the discriminatory
referral procedures also contains an explicit requirement that
the union not discriminate.
In Berger, the court found an agency relationship
because, in addition to the international union's constitutional provisions providing the international with
oversight authority over the local's membership practices (which
alone would not be enough to find the agency relationship, 843
F.2d at 1431), the international had formally endorsed the establishment
of the discriminatory practice in question and was actually involved
in its implementation. Id. at 1430-32. In the cases cited by Plaintiffs,
the provisions in question were themselves discriminatory and
were explicitly negotiated by the international. See, e.g, Myers
v. Gilman Paper Corp., 544 F.2d 837, 844, 847-48, 850-51 (5th
Cir. 1977) (agency liability for "line seniority" provision
in labor agreement either negotiated by the international or "advised"
by international and requiring international's approval). In the
present case, LIUNA was not involved in Local 496's 1973 agreement
to refer both members and non-members to laborer positions at
Perry. Plaintiffs have failed to present any evidence indicating
that LIUNA supported or approved of Local 496's decision in fact
not to comply with the terms of the PLA, or allegedly to make
exceptions in their noncompliance for a number of white relatives/friends.
LIUNA knew that charges of discrimination had been levied, but
not that discrimination actually had occurred, and knew that Plaintiffs
were seeking court intervention to resolve the matter. Therefore,
on the record before us, where the district court found and the
record reflects nothing more than mere "acquiescence,"
in my view we cannot find that Local 496 was acting as LIUNA's
agent when it discriminated against Plaintiffs.
The district court found that because LIUNA
had notice of discrimination complaints against Local 496 and
because it was a party to the National Maintenance Agreement,
LIUNA had an affirmative duty to oppose Local 496's discriminatory
conduct. In so holding, the district court relied upon Kaplan
v. International Alliance of Theatrical & Stage Employees,
525 F.2d 1354 (9th Cir. 1975), wherein the Ninth Circuit held
that under Title VII, "[b]y making and [tacitly] enforcing"
a collective bargaining agreement that perpetuates past discriminatory
effects, an international labor organizations has an affirmative
duty to take corrective steps to prevent the perpetuation of such
discrimination by their affiliates. Id. at 1360. Central to Kaplan's
holding, however, is that the international union actually negotiated
on behalf of the local the agreement containing the discriminatory
referral procedure. See id. at 1359-60. In contrast, LIUNA was
not involved either in the negotiation of the 1973 PLA, or in
Local 496's decision not to comply with the PLA's requirements.
Moreover, in Kaplan, the provision perpetuating the discriminatory
effects was part of the collective bargaining agreement itself.
In the present case, Plaintiffs did not allege and the district
court did not find that the PLA itself was discriminatory; it
was the failure of Local 496 (by referring only members) and the
employers (because of security at Perry) to properly implement
the agreement that caused the discrimination.
Plaintiffs argue that requiring anything
more than an international union's knowledge of discrimination
claims against a local affiliate to create an affirmative duty
would be "in direct conflict with the broad remedial purposes
of Title VII and Section 1981, as well as LIUNA's duties under
the National Maintenance Agreement." In General Building
Contractors Association, however, the Supreme Court explicitly
[T]he question is not whether the employers
and associations are free to delegate their duty to abide by §
1981, for whatever duty the statute imposes, they are bound to
adhere to it. The question is what duty does § 1981 impose.
More precisely, does § 1981 impose a duty to refrain from
intentionally denying blacks the right to contract on the same
basis as whites or does it impose an affirmative obligation to
ensure that blacks enjoy such a right The language of the statute
does not speak in terms of duties. It merely declares specific
rights held by "[a]ll persons within the jurisdiction of
the United States." We are confident that the Thirty-ninth
Congress meant to do no more than prohibit the employers and associations
in these cases from intentionally depriving black workers of the
rights enumerated in the statute, including the equal right to
contract. It did not intend to make them the guarantors of the
workers' rights as against third parties who would infringe them.
458 U.S. at 396 (second emphasis added).
Thus, at least under § 1981, in the absence of an agency
relationship, an international union does not have an affirmative
duty to ensure that its affiliates do not undertake discriminatory practices. See also Goodman v. Lukens Steel
Co., 482 U.S. 656, 687-89 (1987) (Powell, concurring);18 cf. Phelan
v. Local 305 of United Ass'n of Journeymen, 973 F.2d 1050, 1061
(2d Cir. 1992) (in context of union democracy claim, citing Carbon
Fuel for the proposition that: "An international union has
no independent duty to intervene in the affairs of its local chapters,
even where the international has knowledge of the local's unlawful
acts."). Because of the close relationship between Title
VII and § 1981, I conclude that the same standard applies
in the Title VII context. See Berger, 843 F.2d at 1429 (noting
that an international's liability for the actions of an affiliate
must be based on something "more than the abstract and unbounded
premise that the entities regulated by [Title VII and § 1981]
have an `affirmative duty' to end discrimination."). The
non- discrimination clause of the National Maintenance Agreement
likewise does not require anything greater.
Moreover, as a practical matter, holding
LIUNA responsible for Local 496's actions, under the facts of
this case, makes little sense. In finding an affirmative duty,
the district court relied in part on the fact that in March 1985,
LIUNA signed the National Maintenance Agreement. Before 1985,
LIUNA was not a party to any Perry agreement. After May 1985,
no class member even applied for union membership until 1990.
During that period, no class member filed an EEOC grievance claiming
additional discrimination. In addition, no class member ever requested
that LIUNA investigate the charges of discrimination. As far as
LIUNA was aware, the institution of the October 1987 referral
policy, which the court acknowledged appeared to be neutral on
its face, corrected any discrimination problems that had appeared
in the past.
For the foregoing reasons, I would hold that
the district court erred in finding that LIUNA had an affirmative
duty to oppose Local 496's discriminatory practices.19
Through its parent, LIUNA, Local 496 is a
member of the AFL-CIO. Local 496's jurisdiction is limited to
building and construction work in Lake County, Ohio.
Furthermore, between 1975 and 1979, Local
496's membership increased by more than 500%. During the same
time, black membership increased from approximately 12
members to 18 members. Between April 1982 and February 1984, 42
new members joined Local 496, none of whom was black.
Additional white relatives of union members
whom Conrad admitted to the union although they were not then
"working in the calling" include: Donald Crofoot's son-in-law,
David Yankee; Randy Isarelli's uncle, Thomas Isarelli; David Russka;
Robert Mackey; Thomas Schroeder; James Vechery, Jr.; Robert Lohman;
Donald Patton; Mickey Fisher; and two sons of Local 496's Field
Representative, Rudy Bracale.
Defendants contend that they did, in fact,
waive the working-in-the-calling requirement for several African
Americans. The record demonstrates that this is not the
case. Two of those that the defendants claimed they waived the
requirement for were already members of another union. The union
constitution allows persons to freely transfer between unions.
The remaining individuals had either obtained employment that
was to begin once they were admitted to the union or had obtained
letters indicating that they would be considered for employment
once they were admitted to the union. The record indicates that
the union considered such people working in the calling. The defendants
point to no unemployed black non-member who was admitted to the
Although exact dates are difficult to ascertain
from the record, it appears that most of the class members approached
Local 496 in the early and mid- 1980s. Nevertheless, the record
as a whole supports the conclusion that the defendants maintained
racially discriminatory policies and practices well into the limitations
period. In any event, the evidence certainly does not leave us
with a definite and firm conviction that the district court committed
a mistake in finding the defendants liable for a continuing violation.
Therefore, we determine that the district court's finding was
not clearly erroneous with regard to this issue. See Atlas Paper
Box, 868 F.2d at 1493.
The Fifth Circuit has held that an international
union is liable for a local's discrimination where a "sufficient
connection" existed between the international and the local.
See Myers v. Gilman Paper Corp., 544 F.2d 837, 851 (5th Cir. 1977).
The D.C. Circuit determined that the Myers "sufficient connection"
test was not meaningfully different from common-law agency principles.
See Berger, 843 F.2d at 1428. We agree.
The dissent reaches a different conclusion,
relying on General Bldg. Contractors Assn. v. United Eng'rs &
Constructors, 458 U.S. 375 (1982). Although that case did indeed
involve a hiring hall and a claim of vicarious liability, it is
distinguishable. The question there was whether an employer could
be held liable for the discrimination of a union, obviously a
very different question from the one at hand. "In the run
of cases, the relationship between an employer and the union that
represents its employees cannot be accurately characterized as
one between principal and agent or master and servant. Indeed,
such a conception is alien to the fundamental assumptions upon
which the federal labor laws are structured." Id. at 393.
The theoretical underpinnings of the National Labor Relations
Act do not compel a similar result here. To the contrary, it would
be alien not to find an agency relationship when an international
union signed a contract stating that the local -- not the international
-- would provide workers for the employer.
The dissent's recognition that LIUNA attempted
to explain its failure to investigate the plaintiffs' charges
of discrimination as "consistent with LIUNA's
established practice upon receipt of similar complaints"
begs the question whether the international's "established
practice" was sufficient under the circumstances. According
to LIUNA's answers to the plaintiffs' interrogatories, it customarily
referred charges of discrimination against locals to the relevant
regional manager, in this instance Arconti. Arconti died in 1989,
prior to the addition of LIUNA as a defendant. However, between
1984, when the plaintiffs filed their first EEOC charge against
Local 496, and 1989, Arconti never investigated Local 496's referral
practices, much less sanctioned them. LIUNA conceded in its response
to the interrogatories that it could not even verify whether Arconti
ever met with representatives of Local 496 regarding the plaintiffs'
charges. This leads us to wonder whether simply forwarding notice
of charges of discrimination against a local union to the international's
regional manager is an effective means of insuring the local's
compliance with civil rights law. Moreover, we note that in this
case the regional manager notified the national office of LIUNA
of the charges in the first place. We cannot comprehend how simply
circulating between LIUNA's national and regional offices notice
of the same EEOC charges and complaints without subsequent investigation
could sufficiently address the local's alleged racial discrimination.
We question what incentive LIUNA's local unions have to comply
with anti- discrimination statutes when they face no threat of
sanction, or even investigation, by their parent union. Evidently,
LIUNA's "established practice" was not incentive enough.
In other words, the district court determined
that back pay liability under Title VII commenced on the same
day for both LIUNA and Local 496.
The fourth Glus factor is immaterial on these
facts. LIUNA neither represented that plaintiffs' relationship
with it should or should not be through Local 496.
Plaintiffs also challenge the accrual date
of back pay against LIUNA under § 1981 . Because of our conclusions
with regard to the accrual of Title VII back pay against LIUNA,
we decline to address this issue.
LIUNA also claims that the district court
erred in finding that discrimination occurred within the limitations
period applicable to LIUNA and in holding LIUNA
liable pursuant to a continuing violations theory. Plaintiffs
also claim that the district court committed error in two of
its damages rulings pertaining to LIUNA. Because I conclude that
the district court erred in holding LIUNA liable, I would not
address these issues.
For ease of discussion, except where otherwise
noted, we include Defendant Conrad in collective references to
The PLA was signed by representatives of
Perry's owners and of all of the trades, including Local 496.
The provision in question, Art. VIII, provides in pertinent
Contractors performing construction work
on the Perry Nuclear Power Plant project shall, in filling job
vacancies, utilize the registration facilities and referral
systems operated by the Local Unions in accordance with the provisions
of applicable Federal and States laws.
The selection of applicants for work on this
project shall be on a nondiscriminatory basis and shall not be
based on, or in any way affected by, union membership, bylaws,
rules, regulations, constitutional provisions, or any other aspect
of union membership, policies, or requirements.
The PLA was revised in March 1983, but the
provisions regarding hiring of laborers remained unchanged.
In the settlement agreement, however, the
parties stipulated that if he had been asked, Conrad would have
testified that after the adoption of the 1987 referral rules,
nonmembers who followed the policy "would" have been
referred pursuant to the policy's written terms.
Despite the fact that class counsel had a
copy of the 1987 referral rules, he did not discuss the notification
requirement or new referral rules with Colvin, Tomblin, or any
other class member.
In those interrogatories, LIUNA stated:
During the period from January 1, 1982, to
the date of production, defendant LIUNA has not formally investigated
a claim of racial discrimination against a local affiliate. Customarily,
upon receipt of letters from members which charge a local affiliate
with racial discrimination or with some other misfeasance or nonfeasance,
the General President refers the letters over to the appropriate
regional manger. The regional manager, in turn, normally contacts
all the parties involved in an attempt to resolve the matter informally.
Local 496 also asserts that the district
court improperly found that Conrad was "individually"
liable under Title VII. For the record, we note that the court
did not make such an explicit determination, instead stating that
"Local 496 and Floyd Conrad have engaged in a pattern or
practice of discrimination which constitutes an unlawful employment
practice in violation of 42 U.S.C. §§ 2000e-2(a), (c),
and 42 U.S.C. § 1981." In any event, we agree with Local
496 that for the same reasons as stated in Wathen v. General Elec.
Co., 115 F.3d 400 (6th Cir. 1997), with respect to the liability
of an "employer's" "agents," Conrad cannot
be held personally liable under Title VII as the agent of a "labor
organization." See id. at 403-06; cf. 42 U.S.C. § 2000e-2.
The parties stipulated that as of April 1985,
Local 496's members resided in the following counties: Lake -
290 (54%); Ashtabula - 125 (23.5%); Cuyahoga - 49 (9.2%);
Geauga - 33 (6.2%); Other - 34 (6.4%).
Dr. Pendleton testified that because of the
road systems, he used the population figures for all of Cuyahoga
county; he acknowledged, however, that the majority
of Cuyahoga County's black population resided in the county's
eastern half, and noted that the Perry Plant was within 20
miles from the east-side.
Between 1983 and 1985, the standard deviations
for the SOC ranged from -9.77 to -10.36; the standard deviations
for the GOC ranged from -9.88 to -10.46; the standard deviations
for the total labor force ranged from - 7.75 to -8.34. Any standard
deviation number smaller than -2.00 (e.g.-2.5) constitutes a statistically
significant underrepresentation, i.e., one where the probability
that the resulting numbers occurred by chance is extremely small.
See Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 309 n.14
Dr. Martin found that there were a total
of 6,488 workers in the GOC from the four- county area that work
in Lake County, and that 358, or 5.5%, are black. There are 1,195
workers in the SOC from the four-county area who work in Lake
County, and that 52, or 4.35%, are black. The overall workforce
in Lake County is 1% black.
The court also noted that between 1975 and
1979, Local 496's membership grew from approximately 100 to over
500 members (400+%), but that during that time, black
membership increased only from 10 or 12 members to 18 members
(less than 100%). Between April 1982 and February 1984, 42 new
members were initiated into Local 496, none of whom was black.
Between 1980 and 1985, the union accepted 54 new members, one
of whom was black.
While the court stated that the expert reports
would not "control," it also acknowledged that it would
consider the reports in concluding whether or not there was discrimination.
During the trial, the court asked Dr. Pendleton questions indicating
that it might be more appropriate to include only the east side
of Cuyahoga County. As discussed below, this likely would result
in a greater percentage of blacks in the relevant labor market.
Local 496 asserts that instead of declaring
"the four-county area" to be the relevant market, the
court needed to identify further the interested and/or available applicants
within those geographic boundaries. I disagree.
As an initial matter, I note that Local 496
spends a significant amount of time arguing that Dr. Pendleton's
findings are "clearly erroneous" and/or legally insufficient,
and that its expert's report was "superior." Contrary
to Local 496's assertions, however, we review the court's findings,
not the expert's opinion for clear error. Thus, I construe Local
496's arguments directed toward the district court's findings.
Citing Chicago Miniature Lamp Works, Local
496 argues that the court erroneously failed to factor commuting
times into the relevant population determination. Chicago Miniature
involved the hiring practices of a manufacturing company, located
in an Hispanic and Asian neighborhood of Chicago, for entry-level
positions requiring few skills and offering low pay that did not
rise substantially over time. 947 F.2d at 294-95. The court stated:
"The identification of a relevant labor market-the key issue
in a class-based Title VII case-means not only identifying qualified
potential applicants for the job at issue but also identifying
interested potential applicants." Id. at 302 (emphasis in
original). The court went on to hold that because low paying jobs
are more likely to be filled by those living closer to the job
(because the cost of a possible 1 hour commute cannot be justified),
consideration of commuting time was especially important to the
case before it. Id. The court also noted that the boundaries were
arbitrarily drawn such that they did not include some areas just
over 5 miles from the plant, but did include other areas as far
as 20 miles away, id. at 302 n.8, and that the district court
had failed to consider that the company's lack of an English-fluency
requirement meant that it would receive a disproportionately large
number of applications from non-English speaking persons. Id.
Chicago Miniature itself recognized that
"a statistical model [in a discrimination case] need not
be completely specified and some arguably relevant variables can
be omitted in certain cases." Id. at 300. While it might
have been helpful for the court to have explained its reasons
for concluding that commuting time did not affect its relevant
market definition, such explanation was not mandated in this case.
In sharp contrast to the low-wage situation in Chicago Miniature,
the record reflects that the jobs at Perry offered more than double
the average wage available in other positions. Obviously, higher
wages make jobs with longer commutes much more attractive. Moreover,
under its own argument, Local 496 must acknowledge that including
all of Cuyahoga County, as opposed to just the east side, works
in its favor.
Local 496 also asserts that the court would
need somehow to factor into the calculation the fact that for
proximity reasons, part of the relevant population residing in
Cuyahoga County might join the two other local laborers unions
instead of joining Local 496 and working at Perry. (Local 310
has approximately 1100 members, and Local 860 has approximately
850 members.) Local 496 has failed to cite, and I cannot find,
any support for the assertion that to satisfy Ward's Cove, the
relevant population figures must factor in a deduction for persons
with other job prospects. At least in the context of this case,
I reject this contention. See Newark Branch, NAACP v. Town of
Harrison, 940 F.2d 792, 800 (3d Cir. 1991) (in assessing the district
court's definition of the relevant labor market, noting: "Nothing
in Wards Cove or other cases interpreting Title VII so much as
suggests that available `outside' job opportunities have any relevance
whatever to the Title VII liability of a particular employer.").
The district court proceeded to find that
the union's asserted business justification was "clearly
a pretext," and that in any event, there was a less restrictive
alternative. On appeal, Local 496 has not asserted that this finding
was in error, instead addressing only the requirements of Plaintiffs'
prima facie case.
The Supreme Court has previously observed
that Congress clearly limited an international union's liability
for acts of its affiliates to situations where a common-law agency
relationship existed. See Carbon Fuel Co. v. United Mine Workers,
444 U.S. 212, 216-18 (1979). Although Carbon Fuel involved the
breach of a collective bargaining agreement by a local affiliate,
the Court has also required the existence of an agency relationship
to impose vicarious liability for discriminatory practices. See
General Bldg. Contractors Ass'n, Inc. v. United Eng'rs & Constructors,
458 U.S. 375, 391-95 (1982) (discussing 42 U.S.C.A. § 1981
liability of trade associations and employers for local union's
In Berger, relying in part on Carbon Fuel
and General Building Contractors, the D.C. Circuit explicitly
held that common-law agency principles apply to unions and their
internationals in the civil rights context. 843 F.2d at 1427-29.
We think that Berger aptly ties together the existing case law
and sets forth the correct approach.
I am aware that in Myers v. Gilman Paper
Corp., 544 F.2d 837 (5th Cir. 1977), the Fifth Circuit stated
that to hold an international union liable for the discrimination
of a local affiliate, "[t]here must be a `sufficient connection'
between the labor organization and the discriminatory
practice." Id. at 851. I agree with the D.C. Circuit, however,
that Myers's actual application of the "sufficient
connection" test does not support using in the area of Title
VII and § 1981 an agency standard less stringent than that
required by common-law agency principles. See Berger, 843 F.2d
at 1428. In Myers, the international union was liable because
of the "close relationship" with its local under which
the international provided "advisors" who helped negotiate
the discriminatory provision and required that the local submit
its contract to the international for approval. 544 F.2d at 851.
In other words, the international "participated in"
and "approved of" the discriminatory practice. Moreover,
Myers predated both Carbon Fuel and General Building Contractors;
thus, to the extent it permitted a lesser connection between the
international union and its affiliate, Myers has been superceded.
In Carbon Fuel, the Court described the necessary
agency relationship as requiring that the international union
"instigated, supported, ratified, or encouraged" the
local affiliate's conduct in question. 444 U.S. at 218. Somewhat
differently, the Court in General Building Contractors stated:
"`Agency is the fiduciary relation which results from the
manifestation of consent by one person to another that the other
shall act on his behalf and subject to his control, and consent
by the other so to act.'" 458 U.S. at 392 (quoting Restatement
(Second) of Agency § 1 (1958)). The Court particularly emphasized
the idea of "control," noting that the "power to
oppose" union discrimination is not tantamount to a "right
to control" the union. Id. at 393. The Berger court's characterization
of agency adequately accounts for these various definitions.
In Goodman, the Supreme Court declined to
reach the question of whether a trade union has an affirmative
duty to oppose the racial discrimination of others (because the
unions' practice of refusing to file any and all grievances presented
by a black person on the ground that the employer would resent
such grievances was an actionable violation in and of itself),
but Justices Powell, Scalia, and O'Connor expressed their skepticism
that such an affirmative duty could be imposed. 482 U.S. at 687-89.
Plaintiffs seek to distinguish the concurring
opinion in Goodman, noting that it states that an affirmative
duty to oppose "employer" discrimination would work
a disruption in the basic policies of labor laws, whereas here,
the discrimination is by a "local union," over which
the international has a greater measure of control. I do not find
this distinction to be of any import: federal law also protects
the autonomy of local unions. Cf. 29 U.S.C.A. §§ 461-66
(West 1985 & Supp. 1998) (regulating the suspension of local
Although not acknowledged by the district
court, the evidence shows that in the 1984-85 time period, LIUNA,
through Regional Representative Tom Arconti, did make some effort
to investigate discrimination claims.