Petition for Writ of Certiorari — Laborers' International Union of North America v. Alexander

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ae Supreme Court, U.S.

>? FILED

99 2739 0CI 28 99

No. ;

GEFICE OF THE CLERK

IN THE

Supreme Court of the United States

LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA,

¥ Petitioner,

DAVINE ALEXANDER, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

MICHAEL S. BEARSE

General Counsel

THEODORE T. GREEN

Associate General Counsel

LABORERS’ INTERNATIONAL UNION

OF NORTH AMERICA

905 16th Street, N.W.

Washington, D.C. 20006

LAURENCE GOLD *

ANDREW ROTH

805 Fifteenth Street

Suite 1000

Washington, D.C. 20005

(202) 842-2600

* Counsel of Record

WILSON-Eraes Printinc Co., Inc. - (202) 789-0096 - WASHINGTON, D.C. 20001

® EE oo

QUESTION PRESENTED

Whether—on either of the following legal theories—an

international union that is not “involved” in administering

an affiliated local union’s employment referral system, or

in directing the local’s administration of the system, is

liable under 42 U.S.C. § 1981/Title VII of the Civil

Rights Act of 1964 for the local’s discriminatory employ-

ment referral practices by reason of the international’s

“neglect” to “investigate” and to “remedy” allegations of

the local’s discrimination:

Section 1981/Title VII impose an “affirmative

duty” on international unions to investigate and

to remedy allegations of affiliated local union dis-

criminatory employment practices, and the neg-

lect to conduct such an investigation and to ef-

fectuate such a remedy constitutes a breach of

that “affirmative duty”;

Section 1981/Title VII agency law principles

provide that an international union’s “acquies-

cence” in an affiliated local union’s discrimina-

tory employment practices makes the interna-

tional vicariously liable for the local’s discrimina-

tion, and an international’s neglect to investigate

and to remedy allegations of a local’s discrimina-

tion constitutes “acquiescence.”

(i)

S_ Ss

PARTIES TO THE PROCEEDING

In addition to the Laborers’ International Union of

North America (a defendant in this case and the peti-

tioner herein), the parties to this proceeding are:

(a) The plaintiffs in the case (and the respondents

herein):

Davine Alexander

Davine Alexander Stewart

Arthur Bryant

James D. Carson

Craig Clinton

Lee N. Coffee, Sr.

Ronald Colvin

Arthur L. Cook

Samuel D. Cook

Willie A. Edge

Alfred Edwards

Leon Edwards, Sr.

Leonard A. Edwards, Sr.

Daniel O. Enoch

Jessie Gaines, Jr.

Edward R. Gant

Larry Gwynn

William E. Gwynn

Andre Shane Hamilton

Anton L. Hamilton

Clayton Harrell

Edgar Hilliard, Jr.

Everett L. Howard

John Irvin

Ellis A. Jackson

Fredric L. Jackson

Lamont A. Jackson

Isiah Johnson, Jr.

OO ITE AS ee Sa

iii

Leon Johnson

Cheryl A. Journigan

Jerome Lewis

Richard A. Lilly

Vance Marshall

William L. McDowell

Stephen W. Polk, Jr.

Percy C. Pouewells

Jimmie Rice

Ernest L. Richardson

Charlie J. Rivers

Erick D. Robinson

Gregory A. Robinson

Thomas E. Robinson II

Craig W. Sams II

Ronald F. Simmons

Dale Snyder

Frederick Spikes

Jeffrey S. Spikes

William S. Thomas

Art Tomblin

Edward Turner IT

Donald Waytes

Damon L. Wilburn

Dolores J. Williams

Willie Wright

(b) Local 496, Laborers’ International Union of North

America (a defendant in the case).

TABLE OF CONTENTS

Page

QUESTION PRESENTED .00.0..0..0..cccccceccoosceososcooeoees.eece.. i

PARTIES TO THE PROCEEDING ..... ii

TABLE OF AUTHORITURS occsccccc.- csi. vi

Gn UE i, is ss ee es, 1

i a, HC NE Se Ie Tees AEA 2

STATUTORY PROVISIONS INVOLVED .......... 2

STATEMENT OF THE CASE ........... 3

A. Factual Background 2000.00.00. ccccccccccscscececoeeee----.. 3

B. The District Court Decision ......................... 5

C. The Sixth Circuit Decision 7

REASONS FOR GRANTING THE WRIT ......___. 9

I. THE COURT OF APPEALS’ DIRECT LIA-

SD ical i a et 13

II. THE COURT OF APPEALS’ VICARIOUS

TAABULITY RULING .......................... 19

CIRM: we Bidet i 25

(v)

TABLE OF AUTHORITIES

CASES Page

Berger v. Iron Workers Reinforced Rodmen Local

201, 843 F.2d 1895 (D.C. Cir. 1988) ........000000000... 20-23

Brenner v. Local 514, 927 F.2d 1283 (3d Cir.

| | EI SN I. rh SoM RS OY 18

Carbon Fuel Co. v. United Mine Workers, 444

Ca GRD RROD ncccisidcmetsaeabanssndneneatel passim

Coronado Coal Co. v. United Mine Workers, 268

Coe SED ERED cnsevsicinscsctrcsecsanncaiodcanaenseanee passim

General Building Contractors v. United Engineers

& Constr., 458 U.S. 375 (1982) ............................ passim

Goodman v. Lukens Steel Co., 482 U.S. 656

CRIS D . sncsuinsssscnucsbienssiadenaiaiaacmeaace nee passim

Howard v. International Moulders & Allied Work-

ers Union, 779 F.2d 1546 (11th Cir.), cert. de-

60d, STE Ti BBs DEGE CHGS wcakecstadedercevecnsecetetcsntieren 21

Kaplan v. International Alliance of Theatrical &

Stage Employees, 525 F.2d 13854 (9th Cir.

BIPUGE cccccnsaastocnnscasetninaisibebdacseaaaiens idee 21

Myers v. Gilman, 544 F.2d 837 (5th Cir.), cert.

denied, 484 U.S. 801. (1977) ......................0.--20....- 21

Phelan v. Local 305, United Association, 973 F.2d

1050 (2d Cir. 1992), cert. denied, 507 U.S. 972

CRIIIIED: sininsssnssivsteonisdnermnianaieiidanieat anal 18

R.E. Chapa v. Local 18, 737 F.2d 929 (11th Cir.

OID occu saccsnnincdincuecnadesoccahieidaaeiicta amit 18

Shimman v. Frank, 625 F.2d 80 (6th Cir. 1980)... 18, 19

Sinyard v. Foote & Davies Division of McCall

Corp., 577 F.2d 943 (5th Cir. 1978) ....000........ 20-21, 23

STATUTES

Oe Ce ie Be cies cisasncac aa 2

a Ree Oe BN crkidinexcescacccsndedatetpicie users nees 24

I Tels te IE ktescnthaheriicaesebdstvaceticeeiticeiieoaiinns 3

Be Reis BD écincscascteteinendticiendmociaaainaenan 16

ae Rs Oe I oicdiinikntintaheniciesuchd neem naan ace 17

Oe es Oe I sackdiniavcie needa ei ee passim

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

ee Se 00 OIG sicccsckcsnnoesiedcedenaaael passim

Nia eienessniiiaeiiiiiiiiiiiiiiiiial

IN Tue

Supreme Court of the United States

No.

LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA,

7 Petitioner,

DAVINE ALEXANDER, ef al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

The Laborers’ International Union of North America,

AFL-CIO, petitions this Court for a writ of certiorari to

the United States Court of Appeals for the Sixth Circuit

to review the judgment and decision in Alexander v. Local

496, Laborers’ International Union of North America,

et al., 6th Cir. Nos. 96-3806/3823/3854/3857/3858

(April 30, 1999).

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 177

F.3d 394, and is reproduced as Appendix A in the sepa-

rately bound appendix to this certiorari petition. Pet.

App. 1a-65a. The liability opinion of the United States

District Court for the Northern District of Ohio is re-

ported at 778 F. Supp. 1401 and is reproduced as Appen-

dix B hereto. Pet. App. 66a-108a. The order of the

Court of Appeals denying rehearing and rehearing en

banc is unreported, and is reproduced as Appendix C

hereto. Pet. App. 109a-110a,

JURISDICTION

The Sixth Circuit issued its decision and judgment on

April 30, 1999. The Court of Appeals issued its order

denying a timely petition for rehearing and rehearing

en banc on June 30, 1999. Through an order by Justice

Stevens, petitioner was granted an extension of time

through and including October 28, 1999 to file the instant

certiorari petition. The jurisdiction of this Court is in-

voked pursuant to 28 U.S.C. § 1254.

STATUTORY PROVISIONS INVOLVED

42 U.S.C. § 1981 provides that “[a]ll persons within

the jurisdiction of the United States shall have the same

right in every State and Territory to make and enforce

contracts, to sue, be parties, give evidence, and to the

full and equal benefit of all laws and proceedings for the

security of persons and property as is enjoyed by white

citizens, and shall be subject to like punishments, pains,

penalties, taxes, licenses and exactions of every kind,

and to no other.”

Title VII of the Civil Rights Act of 1964 defines the

term labor organization as “a labor organization engaged

in an industry affecting commerce, and any agent of such

an organization,” 42 U.S.C. § 2000e(d), and provides,

in pertinent part, that “[iJt shall be an unlawful employ-

ment practice for a labor organization . . . to classify or

fail or refuse to refer for employment any individual .. .

because of such individual’s race, color, religion, sex, or

national origin,” 42 U.S.C. § 2000e-2(c) (2).

STATEMENT OF THE CASE

A. Factual Background

This 42 U.S.C. § 1981/Title VII of the Civil Rights

Act of 1964 class action concerns employment on the

Perry Nuclear Power Plant, Lake County, Ohio (“Perry”)

project. Plaintiffs in the District Court and respondents

here are Davine Alexander et al., and defendants in the

District Court are the petitioner Laborers’ International

Union of North America, AFL-CIO (“LIUNA” or “In-

ternational Union”), Local Union 496—one of 621 local

unions affiliated with LIUNA—and Local 496’s chief

officer, Floyd Conrad.

As is true of each of the LIUNA affiliated local unions,

Local 496 is a legally-separate entity which elects its own

officers, maintains its own treasury, files its own labor

organization reports required by the Labor Management

Reporting and Disclosure Act with the Department of

Labor, see 29 U.S.C. § 431, and conducts its own

day-to-day operations. Individual workers become mem-

bers of local unions affiliated with LIUNA and of LIUNA

itself by joining a LIUNA local union in the area where

the individual is employed. Members thereafter pay dues

to their LIUNA local union to maintain their member-

ship in good standing. The LIUNA local union, in turn,

pays from these membership dues a monthly “per capita

tax” to the International Union based on the number of

members in good standing in the local.

The Perry Nuclear Plant project proceeded in two

phases: a construction phase from 1973-1985 and an

ongoing maintenance phase thereafter. The Perry con-

struction was effectuated through a “PLA”—a project

labor agreement between the plant owner, its contractors

and a set of local unions representing construction work-

ers—to which Local 496 was a signatory as one of two

local unions in the Lake County area that represents

laborers. With regard to hiring the PLA provided:

Contractors . .. shall . . . utilize the . . . referral

systems operated by the Local Unions in accordance

with the provisions of applicable Federal and State

laws.

The selection of applicants . . . shall be on a non-

discriminatory 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 re-

quirements. [Pet. App. 36a n.3 (Batchelder, J.,

dissenting ).]

LIUNA was not a party to the PLA. And, LIUNA

had no role in administering the Local 496 exclusive

employment referral system provided for therein. Pet.

App. 5a; id. at 58a, 60a-62a (Batchelder, J., dissenting).

The Local 496 Constitution—which follows LIUNA’s

model constitution for affiliated local unions—contains

a “working-at-the-calling” rule under which prior employ-

ment as a laborer in Lake County is a condition for union

membership. The PLA—by obligating the Local to make

referrals to Perry on a nondiscriminatory basis and with-

out regard to union membership—effected a “waiver” of

that rule with regard to such referrals. Pet. App. 4a; id.

at 36a (Batchelder, J., dissenting) 2

1 Although both the majority opinion and the dissent below use the

term “waiver” to describe the effect that the PLA had on the “work-

ing-at-the-calling” rule, it would be more precise to say that the

PLA made express what is true in all events—that the “working-

at-the-calling” rule is a rule of limited scope that has no application

to and no operative role with regard to local union exclusive referral

systems or to a laborer’s eligibility for a referral. The PLA made

this express by its provision precluding Local 496 from taking

Each plaintiff is an African-American and a non-mem-

ber of Local 496 who attempted unsuccessfully to obtain

a referral through the Local for a Perry construction

phase laborer’s job. In 1984-85, plaintiffs filed a series

of charges against Local 496 with the Equal Employment

Opportunity Commission (“EEOC”) alleging that the

Local had violated Title VII by making Perry referrals

on a racially discriminatory basis. LIUNA was not named

as a respondent in these EEOC charges, but was provided

copies thereof. Pet. App. 6a; id. at 34a (Batchelder, J.,

dissenting).

At the end of the Perry project’s construction phase

and in a transition to its ongoing maintenance phase, the

PLA was replaced by a set of national maintenance agree-

ments between the national and international unions rep-

resenting construction/maintenance workers, the plant

Owner and its maintenance contractors. The LIUNA

Maintenance Agreement incorporated the hiring provision

of the predecessor PLA by providing that the maintenance

contractors would hire “in accordance with the hiring

procedure existing in the territory.” Pet. App. 58a

(Batchelder, J., dissenting). Under the Maintenance

Agreement—as under the PLA—Local 496 administered

its exclusive Perry referral system on its own and “[n]o

LIUNA representatives or agents were involved.” Pet.

App. Sa.

B. The District Court Decision

In December 1984, plaintiffs sued Local 496 and its

chief officer, Floyd Conrad, alleging that the Local and

Conrad had discriminated on the basis of race in admin-

istering the Local’s referral system. Over four years

later, in September 1989, plaintiffs filed charges against

membership status into account in referring laborers for work on

the Perry project.

LIUNA with the EEOC, “alleging that LIUNA had in-

tentionally neglected to investigate their charges of dis-

crimination against the other defendants.” Pet. App. 7a:

see also id. at 34 (Batchelder, J., disenting). And, in

January 1990, plaintiffs sought and were given leave to

add LIUNA as a defendant herein, over the International

Union’s objection, inter alia, that any action against

LIUNA was time-barred. Pet. App. 7a.

The District Court found that Local 496 and Conrad

had, in violation of both § 1981 and Title VII, discrim-

inated on the basis of race in administering the Local

496 referral system and that the Local and Conrad thus

were liable in damages for plaintiffs’ loss of Perry employ-

ment opportunities.

In addition, the District Court found LIUNA liable

together with Local 496 and Conrad for the employment

referral discrimination against the plaintiff class, “under

two different legal theories.” Pet. App. 104a. The Dis-

trict Court’s first liability theory was that Local 496

“was acting as agent of the International Union” when

the Local engaged in the discriminatory practices found,

thus rendering the International Union vicariously liable

for those practices. Pet. App. 104a. And, the District

Court’s second liability theory was that the International

Union had “violated an affirmative duty under Title VII

and § 1981 to oppose [the] discriminatory practices of

Local 496,” thus rendering the International Union di-

rectly liable for those practices. Pet. App. 104a.

The District Court’s ruling that LIUNA is liable under

these two legal theories was grounded on the following |

proposition: that throughout the relevant period LIUNA

and Local 496 were affiliated labor organizations; that,

for part of that period, LIUNA was a party to the Main-

tenance Agreement which provided for an exclusive re-

bieeeoeenereeenainieseeaanieianiiiamaiiaaiiiiiieiiieiaie

ferral system; and that LIUNA did not—after notice of

the plaintiffs’ claim that Local 496 and Conrad had

administered the Local’s referral system in a discrimina-

tory manner—intervene to correct and to prevent Local

496’s discrimination in its administration of its referral sys-

tem. Pet. App. 105a-106a. That proposition supported

the LIUNA vicarious liability, according to the District

Court, because the International Union’s inaction showed

International Union “acquiesc[ence]” to Local 496’s dis-

criminatory practices. Pet. App. 105a. And, that propo-

sition supported the LIUNA direct liability, according to

the District Court, because the International Union’s fail-

ure to intervene to correct and prevent Local 496’s dis-

criminatory practices constituted a breach of its “affirma-

tive duty to oppose the discriminatory practices of Local

496.” Pet. App. 10Sa.?

C. The Sixth Circuit Decision

The District Court’s judgment against Local 496 and

Conrad was affirmed by the Sixth Circuit panel below—

Circuit Judges Batchelder and Cole and Senior Circuit

Judge Keith—albeit in two separate opinions, one by

Judge Cole joined by Judge Keith and one by Judge

Batchelder. The judgment against LIUNA likewise was

affirmed, but this time with Judge Batchelder in dissent.

Pet. App. 22a-25a; id. at 57a-65a (Batchelder, J., dissent-

ing).

The panel majority affirmed the District Court’s ruling

“that LIUNA is liable both vicariously and directly.”

2The amount of the damages assessed against Local 496 and

LIUNA is—by the terms of a partial settlement agreement subse-

quently entered into in the District Court—dependent on the out-

come of appellate proceedings. Pet. App. 7a-8a. “The parties also

{have} agreed to a system by which Local 496 w[ill] give plaintiffs

preference in employment referrals.” Pet. App. 8a.

Pet. App. 23a (emphasis added). Following the Dis-

trict Court’s lead, the panel majority predicated the im-

position of liability on both legal theories on LIUNA’s

“neglect{] to remedy the alleged discrimination when it

learned of the plaintiffs’ claims.” Pet. App. 22a. As

the panel majority put it in concluding its discussion on

the International Union’s liability, “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 dis-

crimination.” Pet. App. 24a.3

3 The District Court’s vicarious liability rationale is the very

model of concise lucidity: ‘Because the Court finds that the Inter-

national Union was aware of the discriminatory actions of Local

496 and Floyd Conrad both before and after March 1985 regarding

refusing to make referrals to class members or permitting them to

become union members and further finds that the International

Union acquiesced in those actions, the Court finds for class members

in their claims against the International Union.” Pet. App. 105a.

The panel majority’s rationale is not. We summarize it as we do

in text by reason of the following. The panel majority affirmed

the District Court’s vicarious liability findings and conclusions and

the panel majority’s decision sets out its basis for that affirmance.

In so doing the panel majority concludes its vicarious liability dis-

cussion by paraphrasing the District Court’s rationale just quoted.

And, as a matter of settled law and of the facts as stated by the

panel majority, the intermediate points made in the majority opinion

—that the 1985 Maintenance Agreement provided for an exclusive

referral system and that the model local union constitution pre-

scribed by LIUNA contains a “working-at-the-calling” rule—taken

alone or in conjunction afford no basis for holding the International

Union vicariously liable. See infra pp. 22-24. It follows, we be-

lieve, that the crux of the panel majority’s vicarious liability

ruling—like that of the District Court’s ruling—is LIUNA’s “ne-

glect to remedy” Local 496’s alleged discriminatory employment

practices.

Judge Batchelder, in her dissent, found no basis for

imposing liability upon LIUNA on either a vicarious lia-

bility theory or on a direct liability theory.

As to the vicarious liability theory, Judge Batchelder

concluded that the District Court’s findings, and the under-

lying record evidence, “reflect nothing more than mere

‘acquiescence’” by the International Union, Pet. App.

61a, and that “[cJontrary to the statements of the district

court, mere ‘acquiescence’ is not enough” to support the

imposition of vicarious liability under the applicable

§ 1981 and Title VII precedents. Pet. App. 60a.

As to the direct liability theory, Judge Batchelder began

by noting that in Genera] Bldg. Contractors v. United

Eng’rs & Constr., 458 U.S. 375 (1982), this Court had

squarely ruled that § 1981 does not create any third

person affirmative duty to prevent discrimination by

others, and then concluded that Title VII likewise creates

no such affirmative duty—citing, inter alia, Justice

Powell’s concurring and dissenting opinion (joined by

Justices O’Connor and Scalia) in Goodman v. Lukens

Steel Co., 482 U.S. 656, 687-89 (1987). Pet. App.

63a-65a & n.18.*

REASONS FOR GRANTING THE WRIT

The Court of Appeals’ decision in this case—which is

contrary to decisions of this Court and of other Courts

of Appeals—reworks the 42 U.S.C. § 1981/Title VII of

4The panel majority also affirmed the District Court’s rejection

of LIUNA’s statute of limitations defense. See Pet. App. 18-22.

Because Judge Batchelder would have found non-liability on

other grounds, she did not reach that issue in her dissent. Peti-

tioner does not seek review of that statute-of-limitations ruling

here. Although we believe that ruling to have been in error, we

recognize that the error was largely in the misapplication of well-

established law to the facts and that such errors do not provide

a proper basis for review on certiorari.

the Civil Rights Act of 1964 scheme of prohibitions and

liabilities in a fundamental regard and with profound

consequences.

These anti-discrimination laws, on their face and as con-

strued by this Court, (i) prohibit employers and unions

from engaging in discriminatory practices in making em-

ployment decisions and in taking employment actions; and

(ii) impose liability on employers/unions that do engage

in such discriminatory employment practices.

On the decision below, however, § 1981/Title VII go

well beyond imposing first person duties and providing

for first person liabilities for breaches of those duties. Ac-

cording to the Court of Appeals, § 1981/Title VII enact

as well a third person duty and a corresponding third per-

son liability—a third person duty to intervene to correct

and prevent first person discriminatory employment prac-

tices and a third person liability for the first person dis-

crimination that the third person did not correct and

prevent.

The Court of Appeals’ “direct [LIUNA] liability” rul-

ing here—that LIUNA “breach[ed] its duty to end [an

affiliated local union’s] discrimination” by “neglecting to

remedy [that] alleged discrimination when it learned of

the plaintiff's claims”—adds to the local union’s duty not

to engage in discriminatory employment practices stated

in §$ 1981/Title VII, an affirmative international union

duty to intervene so as to correct and to prevent an

affiliated local union’s discriminatory employment prac-

tices nowhere stated in § 1981/Title VII.

And, in both legal and practical terms the Court of Ap-

peals’ “vicarious liability” ruling—predicated on LIUNA’s

“neglect to remedy [Local 496’s] alleged discrimination

when it learned of the plaintiffs’ claims” that the Local

was engaging in discriminatory employment practices—

is to the same effect as its “direct liability’ ruling. On

both liability theories the determinant of an international

union’s § 1981/Title VII liability is the international’s

failure to act to correct and to prevent a local union’s

discriminatory employment practices—not any interna-

tional union action constituting a discriminatory employ-

ment practice.

The Court of Appeals’ “affirmative duty” theory has

no root in the employer/union duties stated in § 1981/

Title VIIl—as far reaching as those are. Nor, so far as

we are aware, is there any root for any such “affirmative

duty” theory in any of the array of federal employment

and anti-discrimination laws. And, the Court of Appeals’

“neglect to remedy” vicarious liability theory is equally

foreign to the federal common law of agency as stated

by this Court in Coronado Coal Co. v. United Mine

Workers, 268 U.S. 295 (1925), and its progeny.

The Court of Appeals’ rulings, moreover, do not spend

themselves in the expansion of § 1981’s/Title VII's pro-

hibitions—those rulings have the most far-reaching effect

on § 1981/Title VII liabilities. All but a handful of the

thousands of local unions covered by § 1981/Title VII

are separate legal persons affiliated with national and in-

ternational unions that are, in their turn, separate legal

persons. By the same token, thousands of the corpora-

tions covered by § 1981/Title VII are subsidiaries of

other corporations and thousands of the employer asso-

ciations covered by § 1981/Title VII are affiliated with

national employer associations.

Under the Court of Appeals’ rulings here, any local

union discriminatory action that an international union

with “notice” fails to intervene to correct and to prevent

generates both a local union liability and an international

union liability—and not a local union liability alone.

And, while the Court of Appeals did not opine on the

point, there is nothing in § 1981/Title VII or in the law

of agency that could possibly justify a different result in

the subsidiary corporation-parent corporation context or

in the affiliated employer association context.

In the run of cases, then, § 1981/Title VII litigation

would no longer be focused on a union’s/employer’s al-

legedly discriminatory employment practices, it would be

about that and about the nature of the notice to a related

union/employer and about the nature and quality of that

third person defendant's intervention to prevent the first

person defendant’s alleged discriminatory practices.

Given all this, the Court of Appeals’ “affirmative duty”

direct liability ruling plainly raises an anti-discrimination

law question of the first magnitude. And, it is equally

plain that this question is one that calls for this Court’s

review. The Court—in recognition of the importance of

the “affirmative duty” theory to the proper development

of the anti-discrimination law—has twice taken cases rais-

ing cognate “affirmative duty” questions. General Bldg.

Contractors v. United Eng’rs & Constr., 458 U.S. 375

(1982); Goodman vy. Lukens Steel Co., 482 U.S. 656

(1987). But in the event, neither General Builders nor

Goodman provide a complete and definitive answer to the

“§ 1981/Title VII affirmative duty” question presented

here.

This question therefore remains an open one in this

Court and a question that throws a large shadow of un-

certainty over § 1981/Title VII law and over the litiga-

tion of § 1981/Title VII cases. That is so even though

both the Court’s General Builder's opinion and Justice

Powell's Goodman opinion cut deeply—and, we believe,

decisively—against the Court of Appeals’ “affirmative

duty” theory. And, that is so even though this Court and

the Courts of Appeals have uniformly rejected attempts to

interject “affirmative duty” concepts into the federal labor

relations statutes.

For precisely the same reasons, the Court of Appeals’

“neglect to remedy” vicarious liability ruling raises a

§ 1981/Title VII agency law question of equal moment.

It is particularly to the point that this ruling cannot be

Squared with the federal common law agency princi-

ples this Court has stated in its Coronado Coal line of

precedent and that the Court of Appeals’ decision in this

regard is in conflict with every other Court of Appeals’

§ 1981/Title VII vicarious liability decision.

It is equally to the point that in light of their brigaded

nature complete and considered review of the Court of

Appeals’ “affirmative duty” direct liability ruling all but

requires simultaneous review of its “neglect to remedy”

vicarious liability ruling. While the former is stated in

substantive law terms and the latter in agency law terms

both rest on the proposition that there is a legal duty on

an international union with “notice” to intervene in the

affairs of an affiliated local union to correct and to pre-

vent the local union’s alleged discriminatory employment

practices and an attendant international union liability

for the local union’s discriminatory practices. Thus, both

rulings rest on a single major premise and are so closely

intertwined in the development of that premise as to be

variations on a single theme. For all legal intents and

purposes these two rulings raise a single question that

calls for a single answer.

I. THE COURT OF APPEALS’ DIRECT LIABILITY

RULING

(a) The Court of Appeals’ direct liability ruling here

cannot be squared with this Court’s General Builders de-

cision or with Justice Powell’s Goodman opinion (joined

by Justices O’Connor and Scalia).

In General Builders, the lower courts found a group of

employers and their trade associations liable under § 1981

for employment referral discrimination by a union with

whom the employers/associations maintained a collective

bargaining relationship. The lower courts there proceeded

on the theory that the employers/associations had breached

a “nondelegable duty . . . to see that discrimination does

not take place in the selection of [their] workforce.” 458

U.S. at 395. This Court rejected that theory:

[I]n this litigation the 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 affirm-

ative 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. Jt 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

(first emphasis in original; second emphasis added).]

It is, we submit, equally true that Title VII, as its

language and legislative history attest, prohibits unions

(and employers) from “depriving black workers of the

[equal employment] rights enumerated in the statute” and

that Title VII does so without “mak[ing unions (or em-

ployers)] guarantors of the workers’ rights as against

third parties who would infringe them.” Indeed, Justice

Powell’s Goodman opinion (joined by Justices O’Connor

and Scalia) comes to that conclusion.

In Goodman, the union certiorari petition rested on the

“conten[tion] that the judgment against them rests on the

erroneous legal premise that Title VII and § 1981 are

violated if a union passively sits by and does not affirma-

tively oppose the employer’s racially discriminatory em-

ployment practices.” 482 U.S. at 665. The Goodman

Court’s opinion does not reach that contention on the

ground that the true basis of the lower court’s judgment

there was that “the Unions had indeed discriminated on

the basis of race by the way in which they represented the

workers” in administering the contract grievance system

and that this maladministration of the grievance system

does constitute a violation of Title VII § 703(c)(1). 7d.

at 666-67.

At the same time Justice Powell, after noting his dis-

agreement with that reading of the lower courts’ decisions

and the record, went on to “consider whether the judg-

ment can be affirmed on the ground that Title VII imposes

an affirmative duty on unions to combat discrimination

by the employer.” 482 U.S. at 687. Justice Powell an-

swered that question “no.”

Justice Powell began by showing that Title VII

§ 703(c)’s language “does not suggest that the union has

a duty to take affirmative steps to remedy employer dis-

crimination.” 482 U.S. at 687. And, Justice Powell added

that reading such an affirmative duty into Title VII would

“disrupt the basic policies of the labor laws” which, inter

alia, rest on the premise that unions, “[l]ike other repre-

sentative entities . . . must balance the competing claims

of its constituents . . . [and] make difficult choices among

goals such as eliminating racial discrimination in the

workplace, removing health and safety hazards, provid-

ing better insurance and pension benefits, and increasing

wages.” Id. 688-89.

Justice Powell’s reasoning exposes the fatal flaws in the

Court of Appeals’ “affirmative Title VII duty” ruling here.

First, although “[{t]he starting point for analysis of this

Statutory question is, as always, the language of the statute

itself,” Goodman, 482 U.S. at 687 (Powell, J.), the panel

majority did not even purport to cite Title VII language

that would support the imposition on international unions

of an “affirmative duty” to remedy alleged discrimination

by their affiliated local unions. This was no mere over-

sight because Title VII contains no such language. By its

plain terms, Title VII § 703(c) imposes liability on unions

that engage in certain enumerated “unlawful employment

practices,” and nowhere in that enumeration does there

appear the failure to police and remedy discrimination by

affiliated unions or other third parties. Cf. Goodman, 482

U.S. at 687-88 (Powell, J.).

Second, “{i]n the absence of a clear statement of legis-

lative intent, th[{is] Court has been reluctant to read Title

VII to disrupt the basic policies of the labor laws.” Id.

at 688. As the trusteeship provisions of the Labor-

Management Relations Act reflect, one of those basic

policies is the preservation of local union autonomy. See

29 US.C. §§ 461-466; see also Pet. App. 64a n.18

(Batchelder, J., dissenting). That policy unquestionably

would be disrupted if Title VII were to be given the con-

struction adopted by the panel majority. Goodman, 482

U.S. at 688-89 (Powell, J.).5 =

5In this connection, it is notable that the court below gave no

consideration whatsoever to the means by which international unions

are to fulfill their affirmative § 1981/Title VII duty to “remedy” al-

leged discrimination by affiliated local unions. If a local union did

Third, in the absence of a statutory-language predicate

for the imposition of an “affirmative duty” on international

unions to remedy alleged discrimination by their local

union affiliates, the panel majority resorted to the policy

argument that such an imposition is necessary to vindicate

Title VII’s broad remedial purposes, inasmuch as local

unions would, in the majority’s view, have a “question-

{able] . . . incentive . . . to comply with anti-discrimina-

tion statutes when they face no threat of sanction, or even

investigation, by their parent union.” Pet. App. 24a n.8.

To begin with, that remedial concern is wholly illusory,

because local unions are themselves subject to “direct”

Title VII liability if they engage in discrimination viola-

tive of that statute, as the instant case itself amply demon-

strates. Cf. Goodman, 482 U.S. at 689 (the failure to

recognize an affirmative duty on the part of a labor union

to remedy employer discrimination would not leave the

employee “without a remedy, because union members may

file Title VII actions directly against their employers”)

(Powell, J.).

But even if that remedial concern were real, it is Con-

gress’ and not the federal courts’ role to craft an appro-

priate solution, whether it be stiffer penalties for Title VII

not immediately adopt the international union’s “remedy” and follow

its terms the international could only effectuate such a “remedy” by

placing the local union in trusteeship and assuming its day-to-day

operations. Congress, however, has provided in the Labor Manage-

ment Reporting and Disclosure Act that a local union subjected to

a trusteeship has the right, inter alia, to a “fair hearing” in which

it is apprised of the allegations against it and given an opportunity

tc defend against those allegations. 29 U.S.C. § 464. Thus, if the

local union contested the discrimination claims, international unions

would be required to conduct “mini-§ 1981/Title VII trials” in order

to address the merits of those claims—presumably without regard

for whether those claims were the subject of an EEOC or court

proceeding.

violations, enhancement of the EEOC’s enforcement powers

and resources, or imposition of the “affirmative duty”

posited by the courts below. Cf. Carbon Fuel Co. v.

United Mine Workers, 444 U.S. 213, 218 (1979)

(“[W]e reject petitioner’s suggestion that Congress’ policy

in favor of arbitration extends to imposing an obligation

on the respondent[] [international union], which agreed

to arbitrate grievances [under a collective bargaining

agreement], to use reasonable means to try to control

{its affiliated] locals’ actions in contravention of that

agreement.” ).

(b) Given all this it is hardly surprising that in the

context of local union actions in violation of the federal

labor relations statutes, both this Court and every Court

of Appeals presented with an “affirmative duty” claim—

including the Sixth Circuit itself—has rejected that claim.

See Carbon Fuel, 444 U.S. at 213, 217-18 (an interna-

tional union has no affirmative duty to “use all reasonable

means available to it to prevent [unlawful ‘wildcat’] strikes

[by affiliated local unions] or bring about their termina-

tion”); Phelan v. Local 305, United Ass’n, 973 F.2d

1050, 1061 (2d Cir. 1992) (“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”), cert. denied, 507 U.S. 972

(1993); Brenner v. Local 514, UBC, 927 F.2d 1283,

1292 (3d Cir. 1991) (an international union has no

“legal obligation to “intervene to rectify . . . possible

abusels] by [its affiliated] locals”); R.E. Chapa v. Local

18, 737 F.2d 929, 932 (11th Cir. 1984) (“mere con-

structive knowledge of possible illegal activity on the local

level” does not suffice “to impose a legal duty to intervene

on the national union”): Shimman vy. Frank, 625 F.2d

80, 99 (6th Cir. 1980) (refusing to impose on inter-

national unions “a duty to oversee and correct . . . anti-

(aii

dissident abuses” at the local union level; “{o]therwise,

{iJnternational [u]nions could be destroyed by liability

findings based on a hindsight analysis of what they should

have done”).

In sum, the panel majority’s “§1981/Title VII affirma-

tive duty” holding flies in the face of the statutory lan-

i guage, this Court’s § 1981 case law, and the general fed-

eral employment and labor statutes case law.

sistas with einer

II. THE COURT OF APPEALS’ VICARIOUS LIABIL-

ITY RULING

The most basic rule of the common law of agency and

the rule that guided the Court in the Coronado Coal case

is this: one legal person with the “right to control” the con-

duct of a second legal person’s affairs—such as an inter-

national union vis-a-vis affiliated local unions and a

parent corporation vis-a-vis subsidiary corporations—that

does not take action to exercise that right is not vicari-

ously liable for the second legal person’s wrongful actions.

It follows that nothing in the law of agency imposes any

duty on an international union/parent corporation to

exercise its residual right to control the conduct of an

affiliated local union’s/subsidiary corporation’s affairs or

any vicarious liability on the international union/parent

corporation by reason of the non-exercise of that right.

The courts below took a contrary view. The District

Court predicated LIUNA’s vicarious liability here squarely

on the Internation Union’s “acquiescence” in the form of

LIUNA’s failure to take action to intervene in Local

496’s affairs to “oppose” and to “correct[]” the Local’s

discriminatory employment practices. Pet. App. 104a-

106a. And, the Court of Appeals, in affirming the Dis-

trict Court’s vicarious liability ruling, predicated that

liability on LIUNA’s “neglect[]” in “remedy[ing] the al-

leged discrimination when it learned of the plaintiffs’

claims” Pet. App. 22a; see also supra pp. 7-8 and note 3.

This grounding of vicarious § 1981/Title VII liability

on international union inaction where there are claims

that a local union is engaging in discriminatory employ-

ment practices is in conflict with every other Court of Ap-

peals’ decision in point, as well as this Court’s decisions

delineating the governing common law agency principles.

(a). The D.C. Circuit in Berger v. Iron Workers Local

201, 843 F.2d 1395 (D.C. Cir. 1988), and Judge Batch-

elder in her dissenting opinion below, canvas the relevant

Court of Appeals’ decisions and we therefore restrict our-

selves to summarizing the most salient points.

(i) In Berger, the D.C. Circuit, after discussing the

Court of Appeals’ decisions to that point, concluded first,

that vicarious § 1981/Title VII liability is grounded in

the common law of agency, 843 F.2d at 1427-1428; sec-

ond, that such liability must be based “on something more

than the abstract and unbounded premise that the entities

regulated by those laws have an ‘affirmative duty’ to end

discrimination,” id. at 1429; and third, that the decisive

factor is whether the international union was actively

“‘involv[ed]’” in the affiliated local union discriminatory

employment practices in question, id. at 1428 (quoting

Sinyard v. Foote & Davies, 577 F.2d 943, 945 (Sth Cir.

1978)).

Thus, the Berger court explained, the Fifth Circuit in

Sinyard had rejected the “ ‘blanket imposition of an affirm-

ative duty on international unions to police their locals to

insure nondiscriminaton,’” and had “exonerate[d] the in-

ternational” of vicarious liability in the absence of any

evidence that the international affirmatively “ ‘caused,’”

“ ‘participated in’” or “‘approv[ed]’” the discrimination

complained of. 843 F.2d at 1428 (quoting Sinyard, 577

F.2d at 947) (emphasis added).

Conversely, vicarious liability had been imposed on

the international union defendants in Myers v. Gilman,

544 F.2d 837 (Sth Cir.), cert. denied, 434 U.S. 801

(1977); Howard vy. International Moulders & Allied

Workers Union, 779 F.2d 1546 (11th Cir.), cert. denied,

476 U.S. 1174 (1986); and Kaplan v. International Alli-

ance of Theatrical & Stage Employees, 525 F.2d 1354

(9th Cir. 1975), on the basis of the international unions’

active involvement in the negotiation of the discrimina-

tory collective bargaining agreement provisions in ques-

tion.®

Applying these legal principles to the matters before

it, the Berger court found an international union vicari-

ously liable for certain discriminatory membership prac-

tices by its local union affiliate, see 843 F.2d at 1405-

1406, but nor for the local union’s job referral of one

of the plaintiffs (Bellamy) at reduced wages in retalia-

tion for Bellamy’s complaints regarding the local’s mem-

bership practices, id. at 1426. As to the former, the

Berger court found that “the [i]nternational was involved

with the membership practices of Local 201 to such an

extent that the District Court could infer that the local

is the agent of the international with respect to [those]

practices.” Jd. at 1431. As to the latter, “[i]n contrast,”

there was “not a shred of evidence nor any finding by

6In Myers, the international had “ ‘provided an advisor to the

local in its negotiations and . . . approved the resultant collective

bargaining agreement’” (quoting 544 F.2d at 851); in Howard,

the international had “ ‘worked closely’ with local negotiators, result-

ing in [the] discriminatory bargaining agreement” (quoting 779

F.2d at 1548); and in Kaplan, the international had both “negoti-

ated and signed [the] discriminatory collective bargaining agree-

ment” (citing 525 F.2d at 1360). See Berger, 843 F.2d at 1428.

the District Court linking the [i]nternational to Bellamy’s

wage cut.” /d. at 1433.

(ii) In her dissenting opinion below, Judge Batchelder

undertook the same review and analysis of the case law

that the Berger court had undertaken—albeit with the

benefit of Berger itself on the books—and concluded that

“Berger aptly ties together the existing case law and sets

forth the correct approach.” Pet. App. 59a n.16.

Thus, Judge Batchelder agreed with the Berger court

that the decisive factor in each case had been whether

the international union had been “involved” in some

affirmative matter in the discriminatory acts in question:

In Berger, the court found an agency relationship

because, in addition to the international union’s con-

stitutional provisions providing the international with

oversight authority over the local’s membership prac-

tices (which alone would not be enough to find the

agency relationship, 843 F.2d at 1431), the inter-

national had formally endorsed the establishment of

the discriminatory practice in question and was actu-

ally involved in its implementation. Jd. at 1430-32.

In the cases cited by Plaintiffs, the provisions in

question were themselves discriminatory and were

explicitly negotiated by the international. [Pet. App.

61a-62a (emphasis added).]

(b) The panel majority decision imposing vicarious

§ 1981/Title VII liability on LIUNA in the circum-

stances here presented is squarely in conflict with this

otherwise unbroken line of Court of Appeals’ decisions.

LIUNA has been mulcted with vicarious liability dam-

ages for Local 496’s racially-discriminatory administra-

tion of the facially non-discriminatory employment referral

system provided for by the PLA (and, subsequently, the

Maintenance Agreement) governing the Perry project even

though, as the panel majority itself recognized, all deci-

sions/actions respecting the administration of that referral

system were made/taken by Local 496 officials, and

“[nJo LIUNA representatives or agents were involved.”

Pet. App. 5a (emphasis added). See also id. at 62a

(“Plaintiffs have failed to present any evidence indicating

that LIUNA supported or approved of Local 496’s deci-

sion in fact not to comply with the PLA, or allegedly to

make exceptions in their compliance for a number of

white relative/friends.”) (Batchelder, J., dissenting).

Simply put, it is a startling departure from the hereto-

fore uniform Court of Appeals’ law to find an interna-

tional union vicariously liable for local union acts of dis-

crimination in which the international was not “involved”

in any way, shape or form. Cf. Berger, supra, 843 F.2d

at 1433; Sinyard, supra, 577 F.2d at 947.

union involvement or non-involvement in Local 496’s dis-

criminatory employment practices as all but an irrele-

vance. The one exception is its reference to the consti-

tutional working-at-the-calling rule, by which, said the

panel, LIUNA “instigat[ed], support[ed], rati[fied] or en-

courag[ed]” the discriminatory acts of the Local. Pet.

App. 24a. But the panel majority’s own recognition

that the constitutional working-at-the-calling rule was in-

applicable here shows that this is an empty rhetorical

flourish. The provision that governed the Local’s re-

ferral system was the PLA hiring provision and not the

constitutional working-at-the-calling provision. The for-

mer took precedence over the latter and by so doing

limited the scope of—or, in the majority’s phrase,

“waived”—the latter. See supra p. 4 & note 1. The

proposition that under the applicable agency law standard

an international union is liable for an affiliated local

union's racially-discriminatory acts by reason of an in-

applicable background union constitutional rule is one

that falls of its own weight.

(d) This Court has not spoken to the § 1981/Title

VII vicarious liability issue presented here. But the Court

has given the most mature consideration to the applicable

federal common law agency principles in the line of labor

relations statute cases from Coronado Ceal to Carbon

Fuel. Those decisions, we submit, make it plain that the

vicarious liability “acquiescence” theory of the courts be-

low is entirely without substance.

Carbon Fuel involved an effort by the plaintiffs to hold

the United Mine Workers of America vicariously liable

under § 301 of the Labor Management Relations Act

(“LMRA"), 29 U.S.C. $ 185, for a series of unlawful

“wildcat strikes by its local union affiliates. In treating

with this issue, the Court began by noting that Congress

had adopted the common-law agency test for the imposi-

tion of vicarious liability under LMRA § 301. 444 US,

at 216-17. The Court then went on to reaffirm Chief

Justice Taft's Cerenado Coal ruling “that to find the {in-

ternational] union [vicariously] liable ‘it must be clearly

shown that what was done was done by their agents in

accordance with their fundamental agreement of associa-

tion” ” Carbon Fuel, 444 U.S, at 217 (quoting Cerenade

Coal, 268 U.S. at 304). And Carbon Coal concludes by

making it clear that the Cerenade Ceal vicarious liabil-

ity standard requires international union “authoriz{ation

of], participattion] in, or ratififcation of!" the local

unions’ wrongful acts, Jd. at 216.7

TThe Court noted that this common-law liability standard con-

trasted with “the very loose test of responsibility” that had obtained

under the pre-1985 version of the LMRA. See 444 US. at 217.

By its plain terms, the Coronado Coal/Carbon Fuel

“authorization/participation/ratification” standard of vi-

carious liability excludes mere “acquiescence” as the basis

for the imposition of such liability, as Carbon Fuel makes

clear:

Petitioner makes the distinct argument that we should

hold the International liable for its own failure to

respond to the locals’ strike. In the face of Congress’

clear statement of the limits of an international

union's legal responsibility for the acts of one of its

local unions, it would be anomalous to hold that

P an international is nonetheless liable for its failure

to take certain steps in response to actions of the

local. (Id. at 217-18 (first emphasis by Court);

(second emphasis added ). ]

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,