Bureau Of National Affairs
Sixth Circuit Holds LIUNA, Local Liable for Policy of Excluding Blacks
Thursday, May 6, 1999
The admission and referral policies of a local of the Laborers International Union of North America discriminated against African Americans in violation of Title VII of the 1964 Civil Rights Act, a divided U.S. Court of Appeals for the Sixth Circuit affirmed. The ruling clears the way for a class of 52 African Americans who sought membership in or referral by Local 496 of LIUNA to collect damages from both the local and the international union.
The court affirmed the finding that both LIUNA and the local were liable, and that LIUNA 's liability began to accrue at the same time as Local 496's liability. The court further found that the local acted as an agent of the international union and that the international union breached its affirmative duty to investigate the local's discriminatory conduct against the plaintiffs, led by Davine Alexander ( Alexander v. Local 496, Laborers' International Union of North America, 6th Cir., No. 96-3806 4/30/99 ).
Judge R. Guy Cole, writing for the majority, further found that the plaintiffs' claim against LIUNA and the local were not limited by the statute of limitations because the local's "despicable and egregious" history of excluding African Americans was a continuing violation of Title VII.
According to the plaintiffs' attorney Edward G. Kramer, of Kramer & Associates in Cleveland, Ohio, as a result of the court's decision, the plaintiffs are entitled to $1.8 million in damages from the local and international union under a settlement agreement reached by the parties in 1996.
Judge Alice M. Batchelder disagreed with the majority's conclusion that the defendants could be held liable under the theory of disparate treatment. Batchelder would remand the issue to the district court, she said, because the district court failed to make complete findings to support its conclusion that there was disparate treatment.
Batchelder further maintained that there was no evidence that Local 496 acted as an agent of LIUNA when it discriminated against the plaintiffs, and that LIUNA had no affirmative duty to oppose Local 496's discriminatory practices.
Judge Cole explained that in 1973, Local 496 became the exclusive hiring hall for laborers at the Perry Nuclear Power Plant in Ohio. During the plant's construction phase, from 1973 to 1985, Perry was the primary employer of laborers in Lake County, Ohio, and was an attractive place to work for laborers in neighboring counties because it paid high wages, the court said.
In 1985, the construction phase at the plant ended, and maintenance work at the plant began. This work was done under a maintenance agreement signed by LIUNA, but not by the local, the court said. However, the agreement provided that the local would act as LIUNA's agent in filling all vacancies at Perry, the court said.
Local 496's constitution, which is the uniform constitution for LIUNA , requires that a person seeking union membership first be employed as a laborer in Lake County. This "working-in-the-calling" rule, the court said, required nonunion members who sought induction into Local 496 to first secure work at a union shop.
However, the court said, Local 496 enforced the working-in-the-calling rule to exclude prospective members who were black. The local regularly waived the requirement for white applicants, while declining to afford black applicants the same benefit, the court said. The white applicants for whom the rule was waived were frequently relatives of Local 496 members, the court said. However, when black members attempted to have the rules waived for their relatives, they were usually refused, the court said.
Several black applicants initiated the lawsuit against the local in 1984 by filing charges with the Equal Employment Opportunity Commission. In 1988, the district court certified the class to include all black people who had sought membership in Local 496 or employment by application or referral by the union at the Perry plant. In 1989, plaintiffs filed additional EEOC charges against LIUNA, claiming that it intentionally refused to investigate the alleged discrimination, and in January 1990, the class added LIUNA as a defendant to its suit.
In 1991, the district court found both defendants liable for disparate treatment and disparate impact racial discrimination in violation of Title VII and the Civil Rights Act of 1866 (42 U.S.C. Section 1981). During a separate trial on damages, the parties reached a settlement, which was ultimately approved by the district court in June 1996. Local 496 agreed to an initial payment of $100,000 and LIUNA agreed to an initial payment of $200,000, the court said. The parties also agreed to a system by which Local 496 would give plaintiffs preference in employment referrals.
Whether the plaintiffs would receive any additional money depended on the outcome of this appeal, Kramer, the plaintiff's attorney, told BNA. The settlement delineated different amounts of damages that the plaintiffs would be entitled to depending on whether, and for what period of time, the court determined the parent union and the local to be liable, he said.
On appeal, the defendants argued that the district court erred in determining that they unlawfully subjected the plaintiffs to disparate treatment because of their race, or that their policies had a disparate impact on the plaintiffs. The court disagreed.
"We are hard-pressed to imagine a race-discrimination case with more explicit evidence of disparate treatment," the court said.
The court explained that Floyd Conrad, Local 496's business manager, selectively enforced the working-in-the-calling requirement and avoided referring for employment, and subsequently admitting into Local 496, any African Americans.
Conrad testified that white union members asked him "a thousand times or more" to admit unemployed relatives, and that he obliged them. But, he refused to admit several unemployed African Americans referred by African American union member Donald Robinson. Conrad also admitted that when a contractor called Local 496 and specifically requested a black laborer, Conrad would call Local 860 of Cleveland, which had a higher percentage of blacks, to suggest that the Cleveland local refer one of its members.
In addition to suffering disparate treatment at the hands of the working-in-the-calling requirement, African Americans were also disparately affected by Local 496's post-1987 referral policy, the court said. The court explained that before 1987, the local did not have a written referral policy for Perry. Its practice was to allow members, and occasionally nonmembers, to sign a notebook located in the union office indicating that they wanted to be referred. Conrad would then compile a master list, deleting the names of nonmembers.
After this practice led to National Labor Relations Board charges against Local 496, it began in 1987 to maintain a single list of members and nonmembers who wanted to be referred, and made referrals from the list in order. Persons on the list were required to inform the union monthly that they wanted to stay on the list, the court said. Otherwise their names were removed from the list. Conrad did not inform the class members of this requirement, the court said, which resulted in their names being removed from the list within a month. Local 496 never referred any of the class members for employment under the new policy, the court said.
The court further found that the local's working-in-the-calling rule and its referral practice had a disparate impact on the plaintiffs. While the practices were facially neutral, the court said, they reinforced past patterns of discrimination.
"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 de facto exclusion of African Americans from union membership," the court said.
The court also held that LIUNA was liable for the local's discriminatory practices and policies. The court determined that LIUNA was vicariously liable because the local was acting as its agent.
"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," the court said, pointing out that the working-in-the-calling rule came from LIUNA's uniform constitution.
In addition, the court determined that LIUNA was directly liable for the local's activities because it breached its duty to investigate the allegations of discrimination when it learned of the EEOC charges.
The court rejected LIUNA's argument that the plaintiffs' claims against it were barred by the statute of limitations. LIUNA argued that none of the allegedly discriminatory acts that occurred before Nov. 11, 1988, 300 days before a charge was filed against LIUNA with the EEOC, supported a finding of liability against it. LIUNA's argument failed, the court said, because the union and the local were guilty of a continuing violation of Title VII.
An ongoing, continuous series of discriminatory acts may be challenged if one of those discriminatory acts occurred within the limitations period, the court said. Here, the defendants committed both types of continuing violations recognized by the court: a series of related discriminatory acts and an established policy of discrimination.
Because the local and the union's actions constituted a continuing violation, the district court correctly considered those actions that took place prior to the limitations period, as well as those that occurred within the limitations period, the court said.
The district court was correct in determining that LIUNA's back pay liability began accruing in 1982, when liability began accruing against the local, because LIUNA had "ample notice" of the charges the plaintiffs filed against the local. LIUNA and the local had identical interests in reaching voluntary conciliation with the plaintiffs during the EEOC proceedings, the court said. And, because LIUNA was aware of the EEOC proceedings, it was not prejudiced by the plaintiffs' failure to name it in the original charge.
Copyright © 1999 by The Bureau of National Affairs, Inc., Washington D.C.