Appendix — Laborers' International Union of North America v. Alexander

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No.

In THE

Supreme Court of the United Staten

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

APPENDIX TO THE

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

RR TET «ACETATES

WILSON-Epas PRINTING Co., INc. - (202) 789-0096 - WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

APPENDIX A

Opinion of the U.S. Court of Appeals for the

Sixth Circuit dated August 6, 1998 wees

APPENDIX B

Opinion of the U.S. District Court for the Northern

District of Ohio dated December 10, 1991...

APPENDIX C

Order on rehearing and rehearing en banc of the

U.S. Court of Appeals for the Sixth Circuit .........

Page

66a

108a

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 96-3806/3823/3854/3857/3858

DAVINE ALEXANDER, FT 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

(96-3823/3854)/Cross-Appellees,

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 84-03916—Kathleen McDonald O'Malley,

District Judge.

Argued: August 6, 1998

Decided and Filed: April 30, 1999

Before Keith, Batchelder and Cole, Circuit Judges.

-il

OPINION

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.

Plaintiffs, 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.

I. BACKGROUND

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

‘Through its parent, LIUNA, Local 496 is a member of the AFL-CIO. Local

4906's jurisdiction is limited to building and construction work in Lake County,

Ohio.

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project labor agreement with the Cleveland Electric. Il-

luminating 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 geographic area.

Local 496’s membership has always been over-

whelmingly 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.”

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

‘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 i982 and February

1984, 42 new members joined Local 496, none of whom was black.

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join the union within eight days of beginning employment.

Essentially, then, the project labor agreement, which obli-

gated 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 se-

lectively 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 to Perry.

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

syle sinless il

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when they sought to act similarly. On several occasions,

Donald Robinson, one of the few African-American mem-

bers of Local 496, attempted to refer black friends and

relatives to Conrad for positions at Perry. Conrad consis-

tently ignored Robinson’s requests. The story of Cheryl

Journigan, a class member and relative of Donald

Robinson’s, illustrates Conrad’s treatment of black ap-

plicants. 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 employ-

ment referrals. Thus, several factors, including nepotism,

inequitable application of the working-in-the-calling-rule,

and security at Perry, all converged to exclude black

applicants from union membership and employment refer-

rals.

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

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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

EERE RE ABLES EBA ASI TSI.

7a

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

civil rights 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

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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 hear-

ing, the district court approved the settlement in June 1996.

This timely appeal followed.

Il. ANALYSIS

A. Defendants’ Appeal

1. Disparate Treatment Liability

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 re-

views 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 \. 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 prin-

ciple. See McDonnell Douglas C orp. v. Green, 411 U.S.

792, 803 (1973). Under the McDonnell Douglas framework,

a plaintiff bears the burden of establishing by a prepon-

derance 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

LE Ae ree ay

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qualified for the position; and (4) that he or she was treated

differently from similarly situated members of the un-

protected 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 employmeni 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.”

* 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

1Oa

During the same time period, when Donald Robinson

advised several unemployed African Americans to seek

membership in Local 496, Conrad refused them all

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 admit-

ting into Local 496, any African-American applicants.

Furthermore, African Americans suffered disparate treat-

ment 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 for

Perry; 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

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 union.

lla

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 and Tomblin indicated their

continued interest, they would have remained on the roster

l2a

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 US.

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

4

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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 their actions); 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 496s

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 case.

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,

$7 F.3d at 799. In this case, the defendants claim that the

business purpose for their working-in-the-calling policy was

lo 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

Ida

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 pretext).

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 Tithe VIL.

2. Disparate Impact Liability

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 VI] of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e e 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, 43] (1971). The plaintiff's burden

RCRA AAA a Devi al ecehP A San

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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 testi-

mony 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.

16a

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

lo 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 y. 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

plainuff in a Tithe VIE 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.

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Put differently, the overwhelming majority of workers

cligible 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. Madi-

son Square Garden, 709 F.2d 807, 810-11 (2d Cir. 1983)

(affirming district court’s finding that union’s referral

policies violated Tithe 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 was overwhelmingly 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 cor-

rectly 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

secking employment at Perry, first by excluding them from

Sa

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 discrimi-

nation, 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 discrimi-

nation 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 employment practices).

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 therefore

affirm the district court's finding of liability with regard to

the plaintiffs’ disparate impact claim,

3. LIUNA’s Liability

a. Statute of Limitations

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

claims.

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

19a

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-S(e); EEOC v. Penton Indus. Pub. Co., 85\

F.2d 835, 837 n.5S (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 I1, 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, ¢.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

20a

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 overarching policy of

discrimination.” /d, at 217 (internal quotations omitted).

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 at least 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_ in-

formed 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

re ee a Ne RIE See OS MO Ban ee eee Ke Ae OM, ee 3 Be

SiN DVN yf ae SR he SGP eR ED HSA ELL gal ale EM GAN AS To IE EAS es hind

NE 2 oe

PLR PN CAE IONS

te OO ill a ii te

2la

recognized by this court: a series of related discriminatory

acts and an established policy of discrimination.” 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 E-d., 926 F.2d 505, 510-

1] (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

* Although exact dates are difficult to ascertain from the record, it appears

that most of the class members approached Local 496 in the carly and mid

198Os. Nevertheless, the record as + 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

iinding the defendants liable for a continuing violation. Therefore, we determine

that the district court's finding was not clearly erroneous with regard to this

issuc. See Atlas Paper Box, 868 &.2d at 1493.

22a

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.

b. Agency and Affirmative Duty Theories

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 is within 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, sup-

ported, ratified, or encouraged’ those actions, or ‘that what

was done was done by their agents in accordance with their

fundamental agreement of association.” /d. 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

23a

have an affirmative duty to oppose the local’s dis-

criminatory conduct. See Sinyard v. Foote & Davis Div. of

McCall Corp., 577 F.2d 943, 945 (Sth Cir. 1978).° 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. /d.

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.’ However, the structure of the

relationship between the local and the international was no

different before this date, during Perry’s construction phase.

The working-in-the-calliny requirement, which we have

determined had a disparate ‘mpact on African Americans,

° 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 wnion, 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.” /d. 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.

24a

was in fact a product of LIUNA’s own Uniform Local

Constitution. Article II], §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 eucourage 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.” 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

“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 cnough

25a

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 (Sth 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 Loca!

496’s discriminatory practices and policies, we affirm the

judgment of the district court on this issue as well.

4. Date of Accrual of Title VII Damages

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.

We review 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 “[bJack 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 defen-

dants argue that their Title VII liability did not accrue until

26a

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 24]

(6th Cir. 1987), determined that back pay liability against

LIUNA commenced more than (wo years before this earlier

date, on February 1, 1982.”

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.” /d. 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 y.

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 ade-

quate notice of 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 y. 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

“In other words, the district court determined that back pay liability under

Title VIE commenced on the same day for both LIUNA and Local 496,

27a

ascertained at the time of the filing of the EEOC

complaint;

(2) [Whhether, 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 proceedings;

(3) [Whether 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

relev’ nt EEOC findings in this case. In addition, the EEOC

and NLRB directly provided LIUNA with copies of all

charges alleging discrimi ation by Local 496. LIUNA

enjoyed 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.

28a

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.'” 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 of this 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 fourth Glus factor is immaterial on these facts. LIUNA neither

represented that plaintiffs’ relationship with it should or should not be through

Local 496.

29a

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

issue.

30a

B. Plaintiffs’ Cross-Appeal

1. Date of Termination of Damages

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 41 6, 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, in-

junctive 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

3la

case on date the employer changed its discriminatory policy

rather than the date when the court made the final award of

damages was not an abuse of discretion). We accordingly

affirm the judgment of the district court with regard to this

issue.

2. Sanction of Plaintiffs’ Counsel

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.” /d.

As Magistrate Judge Hemann stated, the history of the

discovery disputes that took place during the damages phase

ofthis 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

' Piaintiffs 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.

32a -

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’ fees.

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” counsel.

Il. CONCLUSION

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.

33a

CONCURRING IN PART, DISSENTING IN PART

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 sanction against the individual Plaintiffs and

Plaintiffs’ counsel. '

This case involves an employment discrimination class

action suit filed on December 20, 1984, brought under 42

U.S.C.A. § 2000e, et seg. (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’s Business Manager, Floyd Conrad,” were

consolidated with the class suit.

On January 26, 1988, the court certified a class of

'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, | would not address these issues,

3, . ° . . .

“For ease of discussion, except where otherwise noted, we include

Defendant Conrad in collective references to “Local 496.”

344

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.

Chery! 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 proceed-

ings. 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

35a

violation of Title VIL 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 dis-

crimination.

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 their appeals.

Appellants Local 496 and LIUNA now claim that the

trial court committed clear errer 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.

I. Factual Background

A.

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 in

36a

Lake 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. II,

§ I(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. 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”

The PLA was signed by representatives of Perry's owners and of all of the

trades, including Local 496. The provision in question, Art. VII, provides in

pertinent part:

Contractors performing construction work on the Perry Nuclear Power

Plant project shall, in filling job vacancies, utilize the registration facilities

und 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, constintional provisions,

or any other aspect of union membership, policies, or requirements,

(emphasis added),

The PLA was revised in March 1983, but the provisions regarding hiring of

laborers remained unchanged.

37a

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”

and was 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 jurisdic-

tion 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.

B.

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

38a

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 was black.

Over the years, the referral practices of Local 496 have

varied. Prior to October 1987, the union did not have in

place a 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

us 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,

39a

Even with the changed referral policy, the union admitted

that it never actually referred a non-member to a job at

Perry."

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 were

92nd and 93rd on the list. While they were at the hall, no

one informed Colvin or Tomblin about the monthly re-

notification requirement.” 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 thé

March 1990 list, she removed Colvin and Thomas’s names.

_

LIUNA and Local 496 are separate entities; the locals

negotiate their own contracts, spend their own funds, own

their own property, efc. At all relevant times, the Local 496

referral system was administered solely by Local 496. The

* 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

hd not discuss the notification requirement or new referral rules with Colvin,

Tomblin, or any other class member.

40a

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 specific

discrimination 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. °

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

“In those interrogatories, LIUNA stated:

During the period from January 1, 1982, to the date of production,

defendant LIUNA has not formally investigased 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

manager, The regional manager, in turn, normally contacts all the parties

involved in an attempt to resolve the matter informally.

4la

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 |,

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.

Il. Racial Discrimination.

Appellants Local 496 and LIUNA assert that the tria}

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 factual findings leave us unable to evaluate

properly the court's finding of discriminatory treatment.

We review a district court's factual finding of

discrimination only for clear error. Jackson vy. 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.’

"Local 496 also asserts that the district court improperly found that Conrad

was “individually” liable under Title VI. 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

42a

Tithe VIE 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 discrimi-

nation ts also prohibited by 42 U.S.C.A. § 1981; claims

brought under § 1981! are governed by the same evidentiary

framework applied to Tithe VIL claims. Patterson v. McLean

Credit Union, 491 U.S. 164, 186 (1989),

In causes 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 vy.

Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988);

International Bhd. Of Teamsters v. United States, 431 U.S.

324, 335 nS (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

discromination 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 defendamt to show a legitimate,

43a

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 Vil 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 vy. 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 business justification 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. /d. 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

44a

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)).

A. Disparate Impact

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 causing the 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 employment.

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 sta-

listically significant way. While the experts agreed on the

45a

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%" of its

members broke down as follows:

General Labor Force GOC Socy

Black Total Black Total Black Total

Lake 1,341 107,123 379} = 20.074 47 36,777

Ashtabula 1,179 45,989 420 12,150 149 2.143

Cuyahoga 144,573 710029] = 34,972] 126,205 7.821 IO,219

Geauga _ 431 35,352 44 5.812 ) 1.217

Total 147,524 8YK 493 35.815] 164,331 %.026 37.256

% Black 16.42% 21.79% 21.54%

as

'

mg

=

.

}

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

* 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%).

46a

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, |

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, | have used the number actually reported by the

1980 Census, i.¢., 21.54%, as the comparison figure adopted

by the court.

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 an expanded geographic area because

people would be willing to travel farther; and (3) the

extensive highway system between Cuyahoga and Lake

counties increased thee distance which people would be

willing to travel for work.’ Dr. Pendleton testified that he

” 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 halt, and noted that the Perry Plant was within 20 miles trom the cast-

side.

DNR etapa eR oda tet

47a

did not “weight” his figures according to commuter

patterns/population proportionality because there was

evidence of a “chilling effect,” i.c., 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 membership, ""

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 for membership. '' Using the applicant pool so-

defined, Dr, Martin concluded that there was not a statistical

underrepresentation of blacks in Local 496’s membership.

Local 496 contends on appeal that the district court's

finding of disparate impact cannot stand because the court

Between 193 and 1985, the standard deviations for the SOC ranged from

9.77 to -10.36; the standard deviations for the GOC ranged from -9.8% to

-10.46; the standard deviations for the total labor force ranged from -7.75 to

“4.34, Any standard deviation number smaller than -2.00 (¢.#.-2.5) constitutes a

Statistically significant underrepresentation, i.c., 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 (1977),

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 4.3 5%, are black. The overall workforce in Lake

County is 1% black.

48a

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 county over 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

i tel

49a

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 dis-

crimination.

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.'*

> The court also noted that between 1975 and 1979. Local 496°s

membership grew trom approximately 100 to over S00 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.

iB . ”

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

50a

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

ithe 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

not be 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

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.

=

Sla

County and persons not yet members of Local 496 can be

referred to Perry and then admitted into membership. Thus,

there ts. @ » actual basis for Dr. Martin’s arbitrary limitation.

As «sted above, Dr. Pendleton’s testimony provided

several iwasons 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 littke 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, /.¢., 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

Q*).

Joi

Cir. 1973). Thus the court’s definition of the relevant labor

14

market was not clearly erroneous.

TP ocal 496 asserts that instead of dechunmg “the four-county thea te be the

relevant market, the court needed) to rdentity further the mterested and/or

avatlable applicants within those geoyra Ynre boundaries. PE disagree

| Leos

AS an mit! matter, P note that Local 496 spends ao significant amount ol

time arvume that Dr Pendleton’s findings are “clearly erroneous” and/or legally

isutticient, and that ats expert's report was “superior” Contrary to Local 4960's

assertions, however, we review the court's findings, not the expert's epimion tant

clear error, Thus, P construe Local 496°. arguments directed: tow wal the distret

courts tindigs

Cimne Chavo Monatwe Lamp Works, Local 496 argues that the court

erroneously fuiled te factor commuting fines inte the relevant population

determination. Chicago Miniature invelved the hiring practices oa

Hanufacturmg Company, focated in an Blsparnic and Asian neighborhood of

Chicave, tor cntry level posthons requiring few skills and offermye low pay that

idl not rise substantially over time. 947 b.2d at 294-95, The court stated: “The

entitication of a relevant hibor market—the key issue in a chtys based Tithe VI

case means not only identifying qualified potential appheants lot the job at

issue but also identifying interested potential applicants.” fd. at 402 Comphastis in

oneal). Phe court went on to hold that because low paying yobs are more

likely to be tilled by those Living closer to the yob (because the cost of a possible

1) hour commute cannot be pustitied), Consideration OF CONMTUTHTE THE Wats

especnilly rmportant to the case betore it. Ad. The court also noted that the

boundaries Were arbitrarily drawn such that they chal not melude some areas just

over Samiles trom the plant, but did ielade other aredts ats bur ats 20 miles away,

ad at 302 eS. and that the district court had tated to consider that the

Company's lick of an Baglish-flicney requirement meant that at would receive at

disproportionately Lange number of appheations from non bnvbsh speaking

persons. Ad. at 402 Os

Chiave Monatre iusell recogmzed that “a statistical model fina

Uiscrmimation case} need not be completely specthed and some arguably

relevant Variables can be omutted: in certam cases” Ado at 300 While it ought

have been helptul tor the court to have explained its reasons tor concluding that

Commuting tine did pot attect as relesant market definition, such explanation

was fot mandated an this case. Tn sharp contiist to the low-ware situation tn

Chicavo Momature, the record retlects that the yobs at Perry offered more than

double the average Wage available in other positions Obvrousty, higher wages

Hake yobs with longer Com ittes much more attractive. Moreover, under ts

S3a

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

courts opinion, | conclude that the court's finding ofa

“gross disparity between the percentage ofblacks in. the

membership ofLocal 496 and the [relevant] labor force” was

not clearly erroneous,

Local 496 turther 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).

own argument, Local 496 must acknowledge that including all of Cuyahoga

County, as opposed to just the cast side, works in its favor

Local 496 also asserts that the court would need somehow to factor ito the

calculation the fact that for proximity reasons, part of the relevant population

residing in Cuyahoga County raight join the two other local laborers unions

instead of jomme Local 496 and working at) Perry. (Local 3100 has

approximately T1OO members, and Local 860 has approximately SSO members.)

Local 496 has failed to cite, and PT cannot tind, ary support for the assertion that

lo satisty Wards Cove, the relevant population figures must tactor in a deduction

for persons with other job prospects. At least in the context of this case, | reject

this contention, See Newark Branch, NAACP vy Town of Harrison, 940 F.2d

792, SOO (Bd Cir, L991) Gin assessing the district court's definition of the

relevant labor market, noting: “Nothing ino Wards Cove or other cases

interpreung Tithe VIE so much as suggests that available ‘outside’ job

opportunities have any relevance whatever to the Tithe VUE liability. of a

particular employer”).

S4a

The court's list of evidence included: the bargaining

agreements; that) employers, by custom, practice and

agreement, could hire employees without) any union

oversight regarding 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

triends 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 oiie 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 workers.

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

§Sa

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 statistical disparity. Consequently, I agree that this court

must affirm the district court's finding of disparate impact.”

B. Disparate Treatment.

The district court held that Plaintitfs 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

” 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 tacie

case.

S6a

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, VSI B.3d $26, 532 (6th Cir. 1998) (emphasis

omitted): accord Deal v. Cincinnati Bd. of keduc., 369 F.2d

SS, 63-64 (6th Cir, 1966) (there must be 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 courts 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

relauves” 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 tind 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 tuled to provide a copy of its referral policy. The

court fatled to make any other findings with respect to the

unions failure to provide membership/referral policy

information. Thus, | 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 reacsing its

S7Ta

conclusion that Plaintiffs had = been treated ino 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.” Ino 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)) Cinternal

citation omitted); see also Gonzales, ISI F.3d at

§32. 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, |

would remand this issue to the district court: to

provide explicit factual findings explaining the basis

for its conclusions.

Hl. = Liability of LIUNA.

We review de nove 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 Cir. 1984).

The National Maintenance Agreement, signed by LIUNA

and effective at Perry in March 1985, provided in part:

SSa

The employer agrees to hire men in any territory

where work is bemy performed or ts to be performed

in accordance with the hiring procedure existing i

the territory where the work is being performed or ts

performed; however, in the event the Local Union ts

unable to till the request) ofthe Employer for

linployees within a forty-erpht (48) hour period

after such request for kimployees, the Employer may

cmiploy workmen from any source.

The Agreement also) contained a non-discrimiation

Clause, Which stated: “Phe Union and the Employer agree to

abide by all Executive Orders and subsequent amendments

thereto, regarding the Civil Rights Act of 1964, pertaining

lo nondiscrimination im emyioyment, inevery respect.” The

district court found that “[a]t all relevant times, the reterral

system owas administered solely by Local 496; no

International Union representative or agent has participated

inits operation.” The court also found that LIONA “was

aware of the discriminatory actions being take by the

detendant{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 legal

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 het

SHUUaHOn, :

The district court concluded thet LIUNA was table

under a principal-agent theory for the discriminatory actions

of Local 496 because both before and atter March 198S,

LIUNA was “aware” of Local 496°s actions regarding tts

refusal to make referrals to class members or to permit them

to) become union members, and because LIUNA

“acquicsed” ine those actions, The court) also held that

LIUNA had an affirmative duty ander Tithe Viland § 198]

cory Sanco

a

KONG <P ve

si)

59a

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.

A. Agency Theory

An international union may be lable 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. lron Workers Reinforced Rodmen

Local 201, 843 F.2d 1395, 1426-33 (D.C. Cir, 1988)."°

fhe Supreme Court has previously observed that Congress clearly limited

an intermational amion’s Hability for acts of ity atlilittes to situations where a

commorn-hiw agency relationship existed See Carbon Fuel Co... United Mu

Workers, 444 US. 212, 216-18 (1979). Although Carbon Fuel mvolved the

breach of a collective bargaiming agreement by a local affiliate, the Court has

also required the exmtence of an agency relationship to impose vicartous

liability tor discriminatory practices. See General Bldg Contractors Assn, Ine

United Ene'rs & Constructors, 45% US. 375, 391-95 (1982) Cdiscussing 42

U.S.CLA. § 1981 lability of trade associations and employers for local unions

Ciscriminalory practhees)

lin Berger, relying in part on Carbon Fuel and General Biildirs

Contractors, he DLC. Circuit explicitly held that common-law agency prin ples

apply to unions and their internationals im the civil rights context, 644 bold at

1427-29. We think that Berger aptly tes together the existing case Law and sets

forth the Correct approach

fam aware that in Myers vo Gilman Paper Corp., SAd be2d 847 Oth Cu

1977), the bitth Circuit stated that to hold an international union liable for the

discrimination of a local affiliate, “[t}here must be a Csutficient Connection

between the labor organization and the discrmunatory practice.” fd. at 851 1

agree with the D.C. Circuit, however, that Myers’s actual application of the

‘sufficient Connection” test does not support using inthe area of Tithe Vib and §

IYX} an agency standard less stringent than that required by common-law

agency principles. See Berger, $43 F.2d at 1428. In Myers, the international

union Was table because of the “close relationship” with its local under which

the international provided “advisors” who helped negotiate the discriminatory

60a

Thus, to be liable under Tithe VIL, an international must

“participate in” or “authorize |, ratify[], or approve| |” ofthe

particular condition about which the plainuff complains, See

id. at 1428-32.

Contrary to the statements of the district court, mere

“acquiescence” is not enough. To be similarly lable under §

IOS}, the plaintiff must also prove that the relationship

between the international and the local ts) sufficient: to

impute discriminatory intent. fd. 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 ts

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 LIONA

knew or should have known of Local 496°s discriminatory

provision and required that the local submit its contract to the imternational tor

approval S44 bold at SSE tn other words, the international “participated in’ and

approved of the discriminatory practice. Moreover, Myers predated beth

Carbon Fuel and General Buildings Contractors, thus, to the extent it permitted a

lesser Connection between the international union and its attiliate, Myers has

beens LEPCre cded

ln Carbon Fuel, the Court described the necessary agency relationship as

requiring that the international union “imstiygated, supported, ratitied, or

encouraged’ the local atfihate’s conduct in question, 444 US. at 218. Somewhat

ditterently, the Court in General Building Contractors stated: “Agency os the

Hiduciary relation which results from: the manifestation of consent by one person

to another that the other shall act on his behall aad subject to his control, and

consent by the other so to act. 458 U.S. at 392 (quoting Restatement (Second)

of Avency § FE CL9SS8o). The Court particularly emphasized the idea ot “control”

noting that the “power to oppose union discrimination is not tantamount toa

reht to control the union. fd. at 494. The Berger court's charactentzation of

avency adequately accounts for these various delinitions,

‘

uf

ON Nab nebo dS

Pe ee

61a

practices, LIUNA “authorized, ratified, or approved” Local

4906'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 principal responsible 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- tts

implementation. /d. at 1430-32. Jn the cases cited by

Plaintiffs, the provisions in) question were themselves

discriminatory and were explicitly negotiated by the

624

international. See, e.e.. Mvers vo Gilman Paper Corp., 544

b.2d 837, 844. 847-48, 850-51 (Sth Cir, 1977) (agency

lability for “line semority™ 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 tailed 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 inv their

noncompliance for a number of white relatives/triends.,

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 il

discriminated against Plamtitts.

B. Affirmative Duty Theory.

Phe district court found that because LIUNA had notice

of discrimination complaints against Local 496 and because

i Was a party to the National Maintenance Agreement,

LIUNA had an affirmative duty to oppose Local 496's

discriminatory conduct. Ino so holding, the district court

relied upon Kaplan vo International Alliance of Theatrical &

Stave Employees, 525 F.2d 1354 (9th Cir, 1975), wherein

the Ninth Circuit held that under Tithe VIE, “[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 therr attiliates. dd. at 1360. Central to

3

4

i

63a

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 ot

Title VIE and Section 1981, as well as LIUNA’s duties

under the National Maintenance Agreement.” /n General

Building Contractors Association, however, the Supreme

Court explicitly stated

{T]he question is not whether the employers and

associations are tree 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 §

{O81 impose a duty to refrain from intentionally

denying blacks the mght 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

“Lajll persons within the jurisdicuon of the United

64a

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 US.

656, 687-89 (1987) (Powell, concurring); '* 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 interna-

tional 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

'S ty 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. 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 union autonomy).

“A

#

mms

65a

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, | would hold that the district

court erred in finding that LIUNA had an affirmative duty to

oppose Local 496’s discriminatory practices.

19 ‘ P .

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.

O64

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Case No. C84-3916

DAVINE ALEXANDER. JAMES CARSON, ARTHUR

LEE COOK. DWAYNE ALLEN CURRY. EVERETT L.

HOWARD. ART TOMBLIN, DONALD WAYTES.

RICHARD A. LILLY. EDWARD TURNER II, PERCY

POUEWELLS. LEE N. COFFEE, ISIAH JOHNSON, JR..

JIMMIE RICE, RONALD COLVIN .

Plaintiffs,

v.

LOCAL. 496, LABORERS INTERNATIONAL UNION

OF NORTH AMERICA, FLOYD B. CONRAD,

LABORER’S INTERNATIONAL UNION OF NORTH

AMERICA,

Defendants.

December 10. 1991, Issued

OPINION

Judge Alvin IL. Krenzler

Memorandum of opinion, findings of fact — and

conclusions of law regarding defendant's liability.

67a

INTRODUCTION

This is a civil rights action whereby the plaintiff class

members contend that they were denied union membership

and employment opportunities by the defendant unions

because of their race.

This Court certified the present case as a class action

with the plaintiff class being all black persons who applied

for or could have applied for a position at the Perry Nuclear

Plant.

Plaintiffs have alleged that the policies and practices of

Local 496 of the Laborers International Union of North

America (“Local 496”) and its Business Manager, Floyd

Conrad, regarding admittance of blacks to Local 496 and

referral of blacks to jobs as laborers violates Title VI, 42

U.S.C. §~S8~ 2000e, et seqg., and 42 U.S.C. § 1981.

The Laborers International Union of North America

(“International Union”) was also brought into this case as a

party defendant. An international union can be held liable

for the discriminatory actions of an affiliated local union

either on an agency relationship with the local or on the

basis that it has an affirmative duty to oppose discrimination

by one of its locals.

Plaintiffs have attempted to prove their case under two

separate theories. The first theory is that the union’s policies

have a disparate impact upon blacks and the second is that

the union is guilty of a pattern or practice of disparate

treatment of blacks.

The plaintiffs have contended that the union has selected

applicants for membership in a racial pattern significantly

different from the general pool of applicants.

The defendants have contended that the methodology for

admitting persons into the union is based on business

68a

purpose. The plaintiffs contend that this alleged business

purpose is a pretext.

The plaintiffs attempted to make their prima facie case of

discrimination by statistics and other evidence. They

atiempted to show a disparity by comparing the percentage

of defendants’ members who are members of the class with

the percentage of the general population in the appropriate

geographic area representing members of the class.

Union policies and procedures that may be neutral on

their face but which produce discrimination are unlawful.

The plaintiffs contend that a requirement for applicants

for union membership is they must first be “in the calling.”

which means that they must have a job before they can be

admitted to the union. We are dealing in this case only with

job applicants and applications for union membership in

regard to the Perry Nuclear Plant.

The plaintiffs contend that inasmuch as the Perry Nuclear

Plant is a secured area and applicants for jobs” with

contractors cannot get into the area, it is virtually impossible

for applicants to make application and get jobs unless they

have some relationship with either the employer or the

union representatives. The plaintiffs contend that because

the union officers and their friends and relatives are working

for the contractors in the Perry Nuclear Plant, they have

access and thus recommend their friends for employment

and thus membership into the union, and that this

methodology discriminates in fact against: the minority

applicants. The plaintiffs contend that) inasmuch as

approximately 30% of the union members are all related and

friends and white that this in and of itself shows

discrimination in fact and a violation of Tithe VIL.

Plaintiffs contend that the entire methodology employed

by the Local. the International and the employers, results in

ee ee ee ee

69a

discrimination, It is noted that the employers are not parties

to this case.

Local 496 contends that all it does 1s admit applicants

into membership after they have a job and all of the hiring is

done by employers and therefore the union has not

discriminated and cannot be charged with discrimination.

The International Union contends that it has not

discriminated and has no obligation whatsoever to monitor

or control the local union. The International Union has a

requirement that in order to be a member the applicant must

be “working at the calling” of labor at the time he or she

seeks to enter the union. The International Union contends

that it does not discriminate in fact and cannot be held liable

even if Local 496 has discriminated.

In determining whether there is discrimination, statistics

were used in this case and one of the concerns is the

geographical area involved. If Cuyahoga County were

included that would make the applicant pool of qualified

workers substantially higher than if Cuyahoga County were

not included.

The plaintiffs have alleged and introduced evidence that

the defendant Local 496 and the International Union have

discriminated against blacks by their rules and regulations

and by their practices and methods in the hiring process and

the admission of members. They contend that in 1975 there

were 100 members in the union and that 10 were black, and

that in 1988, there were approximately 500 members in the

union and less than 20 were biack.

While the methodology used by employers and the union

in hiring employees and admitting them into the union may

appear to be race neutral on its face, through a series of

connected and disconnected processes they result in

discrimination, There is much fingerpointing and blaming

70a

each other among the employers, the Local Union, the

International Union, and the plaintiff class employees.

The plaintiffs allege that the total picture results in

discrimination and that it is not proper to take the tsolated

events and not connect them together into a series of events

that refleet discrimination,

The defendant Local 496 takes the position that ts almost

an innocent bystander, just one link in the flow of applicants

and yobholders,

Local 496 contends and submits evidence that the

International charter or constitution requires that one must

be “in the calling” before he or she can be admitted into the

union. Local 496 contends that itis not a hiring hall and that

all employees are not hired by the union and then referred to

the employer. The agreement between the employers and

the union is that the employer can do its own hiring and

whoever they hire will be automatically admitted into the

union. Further, the employer can request a certain number of

named people and the union will automatically admit them

into membership. While the employers are not parties to the

case, the testimony of some employers is that they

recognized they could only hire union members and that

whenever they wanted someone, they would hire them and

they would be admitted into the union. Tf they were not

union members, they would send the person they wanted to

hire to the union hall to be admitted into membership. This

had to be done within seven days of employment. The union

automatically admitted such people into membership.

While, as stated above, the employers are not parties to the

case, they stated that they hired whoever applied for a job if

and when there was a vacancy. They also contend that it

they wanted to get an employee from the union, they either

asked for a specified person, sent the person they hired to

the union hall, or asked the union for a certain number of

Tha

people, They did not specify black or white and they took

whomever the union sent them. The employers contend that

if any applicant or potential applicant believed that there

was discrimination by the employer, such people should

have filed a grievance or a discrimination charge against the

employer.

Local 496’s Business Manager, Floyd Conrad, who is the

key player in this case, contends that he was only a referral

agent. Whenever an employer hired someone, he accepted

him into the union. If the employer referred someone by

name, he would admit them into the union. Whenever an

employer asked) for a certain’ number of unnamed

employees, he would send only his unemployed union

members. He would never send an unemployed non-union

person, He has a very simplistic story in that he was there to

look out for the existing members. There was a high rate of

unemployment and he did not) want to admit into

membership anyone who was not in the calling as required

by the International Union. However, whoever an employer

hired, he would admit into membership. He, in’ effect,

contends that he is merely a conduit for the flow. of

applicants, hired) personnel, and membership. In- other

words, he would just admit into membership whoever had a

job or was hired by an employer and, on occasion when

requested, he would send people to employers, but only

unemployed union members.

The International Union takes the position that it is only

an international union and Local 496 is not its employee,

agent, OF representative in any manner. Local 496 is totally

independent of it and the International Union cannot contro!

the daily affairs of Local 496. Further, the International

Union argues that it was not aware of all of the alleged

discrimination charges and activities going on at the local

level.

72a

Everyone, including the employers and Local 496,

contends that they did not discriminate.

While this scenario may appear to be race neutral, when

all of the component parts are put together and looked at as

one picture or a mosaic, — the results are clearly

discriminatory. This is the classical case of a facially neutral

program that resulted in discrimination in fact.

The good part about this case is that there is not much

dispute about the history and the operative facts about what

happened. It is the conclusions to be drawn from the

evidence or the inferences that come trom the evidence that

make it difficult for a court to decide whether or not there

was discrimination.

Kirst. there is the statisticians’ dispute which results ina

different conclusion based on the beginning point of what

constitutes the applicant pool. Once this determination ts

made by the expert, the conclusion is foregone. With a

broader applicant pool such as proposed by plaintiffs’

expert. Dr. Pendleton, there clearly was discrimination

because of the disparate impact. Taking the more narrow,

restricted applicant pool of defendants” expert, Dr. Martin,

there was not a disparate impact and, thus, not

discrimination.

The law in regard to discrimination is now clear and well

settled. The plaintiff class has) the burden of proving

discrimination, The plaintiffs must first demonstrate a prima

facie case. This may be done by direct evidence and the

inferences coming therefrom and/or statistical evidence

which would indicate a disparate impact. The defendants

then have the burden of going forward with demonstrating a

business purpose to explain the disparate impact. The

plaintiffs would then go forward to demonstrate that the

q

73a

business purpose was, in fact, a pretext to cover up the

discrimination,

In this case, the plaintiffs made a prima facie case by the

Statistics, direct evidence, and inferences coming from that

evidence which clearly demonstrated a disparate impact.

The defendant Local 496 had a very simple story which |

have repeated several times above and that its business

purpose Was to protect its unemployed members and not add

excessive members to the union rolls which would create

discontent. Local 496’s goal was to have 100) percent

employment of its union members and by just admitting

people into membership without jobs would create more

problems than it would solve. The union contends that it

only referred union members to employers when requested

and also admitted into membership any person who was

hired by an employer. That ts all that it did and that that was

Its business purpose. It was a simple, straightforward

situation and the union did not discriminate.

Obviously, if the employers only hired white persons and

the union only admitted into membership people who had

jobs, the result was that a high percentage of the union

membership would be white. Further, if the union only

referred upon request union members, then they would be

referring Whites because whites were only hired in the first

place and those were the only people admitted into

membership in the union. So it was a vicious circle that

perpetuated the hiring and rehiring of whites and limited the

number of blacks who got hired and thus admitted into the

union. While it appeared to be a facially neutral operation

and nondiseriminatory, one would have to be an ostrich with

its head in the sand not to recognize that the result of all of

this was discrimination and one knew, or should have

Known, that this facially neutral process and operation

clearly resulted in discriminatory impact and, consequently,

74a

discrimination in fact against black persons who wanted to

eet yobs and join the union,

It is clear that Local 496 was hiding behind the hiring

practices of the employers. The thing that this Court does

not understand is why there were not a large number of

discrimination cases filed against the employers if they, i

fact, were hiring whites in a disproportionate number or

percentage in relationship to the applicant pool for such

yobs.

The overall process, taking into consideration all of the

factors, was clearly a pretext.

INTERNATIONAL UNION

The International Union takes a simplistic view in that it

just, in effect, licenses the local and the local ts independent

and the International Union has no duty or obligation: in

regard to monitoring or checking as to whether Local 496

discriminated.

The evidence is clear that the International Union knew,

or Should have known, about all of the activities going on at

Local 496 in regard to the hiring practices and the overall

picture. Further, there were sufficient complaints brought to

the attention of the International Union in the form of direct

complaints. by some of the minorities and also the

communications between Mr. Conrad and the International

Union's field representative.

Under these circumstances, the International Union

cannot be a neutral, passive bystander and attempt to avoid

lability,

The International Union had a duty and an obligation

when it Knew or should have Known about discriminatory

practices to at least investigate and become involved in the

—

75a

system and process and alert the local as to the overall

program and that it may result in discrimination charge and

successful litigation,

Thus, the International Union was as much a part of the

program as Local 496 and is as culpable and liable for the

discrimination that this Court found to exist in the hiring of

blacks and in the admission of blacks into the union.

FINDINGS OF FACT

1. Local 496 and the International Union are labor

organizations as defined in 42 U.S.C. § 2000e(d), (e).

2. Pursuant to an agreement with the Cleveland Electric

Hluminating Company, Local 496 operated the exclusive

referral hiring hall for laborers at the Perry Nuclear Power

Plant. According to that agreement, the local was to refer

both members and non-members of the union for laborers’

jobs.

3. Local 496 was the exclusive referral source for

laborers at the Perry Nuclear Power Plant. Local 496 had an

agreement with Local 860 of Cleveland, with which Local

496 shared jurisdiction over the Perry Plant, to refer Local

860 members to laborer jobs at Perry.

4. Over 30% of the union members have relatives

and/or friends who are also union members. One of the

prime ways of acquiring membership in the union and/or a

job referral ts through the intervention of a relative or friend.

During the relevant period the Perry Nuclear Power Plant

Was the primary employer of laborers in Lake County.

Because of security at the plant, it was not possible for

prospective employees to solicit contractors at the plant for

positions as laborers.

76a

5. Minority applicants for jobs did not have access to

the employers at the Perry Nuclear Power Plant for hiring

purposes because It was a secured area.

Local 496 Membership & Referral Practices Generally

6. Floyd Conrad has been the Business Manager for

Local 496 since 1974. The duties of the Business Manager

include the following: (a) taking care of complaints which

arise from the members: (b) finding employment for the

members: (Cc) investigating new jobs to determine when they

will begin and how many laborers will be needed; (d)

making sure that all union contractors are paying union

scale wage: (e) making referrals for laborer positions at the

Perry Nuclear Power Plant.

Floyd Conrad testified on direct examination, Cross-

examination and in response to the Court's questions, ina

very low-keyed, simple, straightforward manner about the

various procedures. He acknowledged that all of the various

collective bargaining agreements incorporated — the

President's Executive Order and the anti-discrimination

laws passed by the Congress.

He stated, in a straightforward manner, that as

Secretary/Treasurer and, in effect, Chief Operating Officer

of Local 496, his job was to protect his members and to

have as many of them employed as he could.

He acknowledged that the International Union requires

that one be “working in the trade” before one can join the

union. He stated that whenever an employer advised him

that the employer was hiring someone, the hiree would

automatically get in the union. He testified that whenever an

employer asked the union for an unspecified person to filla

position, he would then send someone from his unemployed

members list. He never sent a non-member, whether black

77a

or white, to fill a job at the request of an employer. His

stated reason was that his job was to protect union members

and that if he sent unemployed non-union members, his

union members would become angry with him.

He stated that if an employer was discriminating in fact

against blacks, then the blacks should file a grievance. He

stated that he did not believe that he or his union had any

obligation to monitor or police discrimination by employers.

He stated that his job was simply that of referring

unemployed members for jobs at the request of employers

and that his job was not to recommend for employment

unemployed non-union members.

He conceded that the fact that the Perry Nuclear Power

Plant was a secured area and that access to the employers

Was more readily available to the people working on the site

than it was for people off the site. However, he stated that

the blacks working at the Perry Nuclear Power Plant had

equal access to the employers as the whites working at the

Plant and that they could have recommended their friends

and relatives, the same as the whites and that it was up to

the employer as to whom they wanted to hire.

While all of the foregoing individually may be innocuous

or neutral, when taken cumulatively and as a whole they

result in sufficient evidence by which a trier of the fact

could find discrimination by the Local and the International

Union.

Local 496 Membership Practices

7. The Constitution and By-Laws governing Local 496

expressly provide that Local 496 can only induct into

membership individuals working at the calling as laborers.

Local 496 has territorial jurisdiction over the building

construction work in Lake County, Ohio. The work force in

78a

Lake County, Ohio, is 1.3% black. The average

membership in Local 496 over the period relevant to this

lawsuit is in excess of 3% black.

8. The rule which requires a prospective new member

to be working in the calling in order to be initiated as a

member is not applied uniformly. The rule was regularly

waived during the period of the union's rapid growth,

primarily for white applicants.

9A standard initiation fee is charged by Local 496.

This initiation fee is applied to all members regardless of

race.

10. The procedure for hiring and admission into Local

496 was neutral on its face.

11. Local 496 initially refused and continued up to

January 22, 1990, to refuse black persons membership in the

union based on the provision in the International Union's

Uniform Local Union Constitution, Article TH, Section I(a),

which states: “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.” This provision — ts incorporated in the

International Union’s own Constitution at Article XVI,

Section 1. This provision has been used by Local 496 to

deny membership to blacks and to deter blacks from

applying for membership in order to keep Local 496 mainly

an all white union.

12. Black applicants for membership in Local 496 were

met with a reluctant or even, at times, hostile attitude of the

Business Manager.

13. All of the named plaintiffs approached the union to

apply for membership, Not one was accepted.

79a

l4. The experience of Donald Robinson, one of the few

black union members, reveals a discriminatory animus of

the Business Manager against the admission of blacks into

Local 496.

IS. On a few occasions in 1982, Davine Alexander

appeared at Local 496’s union hall and requested

membership in the union. Ms. Alexander was advised that

she could not be inducted into membership unless she was

working at the calling.

16. Ms. Alexander has never worked as a laborer for a

contractor having a collective bargaining agreement with

Local 496,

17. On May 4, 1984, Ms. Alexander filed a charge of

discrimination against Local 496 with the EEOC. Ms.

Alexander's charge of discrimination against Local 496

related to her claim that she was improperly denied

membership in Local 496.

18. The union contends that it cannot automatically

allow anyone who applies for membership to become a

member without having a job because there were too many

unemployed members. If this were done it would create

discontent among the union members and create problems

for the union leaders and officers. This is a somewhat

inconsistent argument because if the union took everyone

into membership who got hired, and contractors hired a lot

of non-union members who later became members of the

union, it would produce the same result; to-wit, a large

number of unemployed union members. This, too, would

create discontent. The credibility of the union's argument is

questionable.

19. During 1983 and 1984 black membership tor Local

496 varied trom

the total number of members and number of black members

of Local 496 during the years 1983 and 1984:

BLACK MEMBERSHIP

DATE

1/83

2/83

V/s3

4/83

5/83

6/83

7/83

8/83

Y/S3

10/8.

11/8

2/8

1/S4

2/84

3/84

4/84

5/84

6/84

7/84

S/S4

9/84

10/84

11/84

| 2/84

‘ad ae a4

)

TOTAL

S01

S09

S09

SO8

S07

S09

Si4

S11

SOU

S510

Si4

S513

re |

SOa

Statistics Regarding Local 496 Membership

and the Labor Force

% to 3.59%. The following table shows

Bs)

17

17

17

Is

Sla

20. Between 1980 and 1985 the number of members of

Local 496 has ranged from 509 to 545 members and the

number of black members has ranged from 16 to 20. The

percentage of the membership that was black has ranged

from 2.88% to 3.59%,

21. As of April, 1985, of the 53/ active members of

Local 496, 93.5% of the members lived in one of four

counties: Lake, Ashtabula, Cuyahoga and Geauga. The

distribution of the residency of the members is as follows:

Lake 290 54.6%

Ashtabula 125 23.5%

Cuyahoga 49 9.2%

Geauga 33 6.2%

Others 34 6.4%

22. The 1980 Census indicates that’ blacks comprise

18.4% of the population of the counties of Lake, Astitabula.

Cuyahoga and Geauga.

23. According to the 1980 Census, the labor force in

Cuyahoga, Lake, Ashtabula and Geauga counties contained

147.524 blacks out of 898,493 persons. Thus, blacks

comprised 16.4% of the labor force in the four-county area.

24. The 1980 Census also reports that 23.4% of the

portion of the workforce in the category of handlers,

equipment cleaners, helpers and laborers, in Cuyahoga,

Lake, Ashtabula and Geauga counties were black.

25. Between 1975 and 1979, Local 496’s membership

more than 500%, Black membership increased from 10 or

|2 members to 18 members during that time.

26. Between April 1982 and February 1984, 42 new

members were initiated into Local 496. None of those new

members was black.

grew trom approximately 100 to over 500, an increase of

Ra

27. Between 1980 to 1985, the union accepted 54 new

members of whom one was black.

Expert Analysis of Statistics

28. EXPERTS

As is the case with many discrimination cases brought

under Tithe VIL, expert witnesses in the form of statisticians

are brought in to demonstrate that based on a statistical

analysis a defendant has discriminated. Normally, each side

brings in an expert who reaches opposite conclusions,

In the present case, the plaintiffs” expert is Dr. Brian F.

Pendleton and the defendants’ expert is Dr. Beth Martin,

The unusual thing about these two experts is that their

methodology was similar except in one major respect. This

difference had to do with the beginning point or the so-

called “applicant pool.”

29, DR. PENDLETON

Plaintiffs produced an expert: regarding statistics, Dr.

Brian Pendleton. Dr, Pendleton used a_ basic standard

deviation analysis on the four (4) county population figures.

Based upon his analysis of these gross population figures,

Dr. Pendleton concluded that there was a_ statistically

significant underrepresentation of blacks within — the

membership of Local 496. In other words Dr. Pendleton,

through his analysis, found that there were more than two

(2) standard deviations with regard to the actual number ot

blacks in Local 596 as opposed to the expected number of

blacks in Local 496 based on the four (4) county population

data.

Dr. Pendleton stated that since approximately 93.5% of

the union membership is drawn from the four-county area ot

83a

Lake, Ashtabula, Cuyahoga and Geauga, this should be

referred to as the applicant pool.

Next, Dr. Pendleton stated that it’ was appropriate to

consider three separate levels of occupations. First, there

was the general labor force in the broadest sense. The

second occupational level is drawn from the general

occupational category (“GOC") of operators, fabricators.

and laborers. This general group included relatively

unskilled positions like machine operators and tenders.

fabricators, assemblers, etc. The third occupational level he

used was the specific occupational category (“SOC”) of

handlers, equipment cleaners, helpers and laborers. This

occupational level is very specific and includes the members

of Local 496,

All of the county and occupational data are drawn from

the 1980 census.

Dr. Pendleton, in effect, states that since 93-1/2% of all

of the union members come from the four counties. namely,

Lake, Geauga, Ashtabula, and Cuyahoga County, these

should be considered primarily. He considered the general

labor force, the GOC and the SOC, and determined the

percentage of blacks in those counties and in— those

categories and then compared it to the percentage of blacks

belonging to the union. The percentage of blacks in the

union, Local 496, was substantially less than the percentage

of blacks in the GOC and the SOC in the relevant counties.

This is a very broad categorization and, in substance. it

includes, in computing the percentages, to total of blacks

and whites in the GOC and the SOC in those counties and

compares it with the black/white ratio of membership in

Local 496,

S4a

Based on his calculations, he concluded that blacks are

consistently underrepresented in the union membership ina

statistically significant manner,

Dr. Pendleton took a much broader approach than Dr.

Martin.

30. DR. MARTIN

Dr. Martin criticized Dr. Pendleton’s method in that he

used the entire labor pool of the four-county area (Lake,

Geauga, Ashtabula, and Cuyahoga) as the applicant pool tor

his analysts,

Dr. Martin, in substance, states that since Local 496

membership policy states that one must be working in Lake

County at the time one applies for membership, this must be

taken into consideration and that a more finely tuned

applicant pool should be used, rather than the one selected

by Dr. Pendleton, She agreed with Dr. Pendleton that the

GOC and the SOC should be the basis of the analysis.

However, she stated that the general labor force would be an

inappropriate applicant pool.

In sum, she states that the appropriate labor pool consists

of the individuals within the GOC and the SOC who work

in Lake County, regardless of county residency. Her reason

is that those are the only individuals who are eligible tor

membership in Local 496.

She further states that since approximately 93.5% of the

union membership is drawn from the four-county area, that

would be the geographical area from which the applicant

pool is derived. She used the 1980 census provided by the

Northern Ohio Data Information Service ("NODIS”). It was

determined that there are a total of 6488 workers in the

GOC trom the four-county area who 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

SSa

County. There are 52 or 4.35% who are black. The overall

work force in Lake County is 1% black. She thus concludes

that the GOC is 5.5% black and 94.5% white, and the SOC

is 4.35% black and 95.65% white.

Dr. Martin then goes on and uses the same methodology

as Dr. Pendleton, but she ends up with a result that

concludes that there is no discrimination. She then simply

states that since the union membership is 5% white and the

percentage of blacks in the GOC now working in Lake

County is 5% blacks, there is no discrimination.

31. COMPARISON OF DR. PENDLETON’S &

DR. MARTIN'S REPORTS

Obviously, the difference in the results is the applicant

labor pool. In effect, Dr. Pendleton uses a broader base,

using the entire labor force in the four-county area for

overall labor pool, GOC and SOC. This results in a higher

percentage of blacks and a lower percentage of whites.

On the other hand, Dr. Martin took the NODIS figures as

a beginning point of 6488 workers in Lake County in the

GOC, She then took the percentages of blacks and whites

Who are in this category and concludes that there is no

discrimination.

Dr. Pendleton, in effect, states that the applicant pool is

much broader than those working at the present time in

Lake County. He believes that the applicant pool should be

either the GOC or the SOC for the four-county area, rather

than limited to the GOC or the SOC working in Lake

County. He claims that the premise upon which Dr. Martin

Starts, that the applicant pool should be the GOC or the SOC

working in Lake County, is not proper because it is too

limiting.

The weakness of Dr. Martin's argument or conclusion is

that it does not take into consideration the fact that there

86a

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 ts S%

black may or may not be valid.

This Court believes that the limitations of Dr. Martin's

report are too many and that the basis of Dr. Pendleton’s

report is too broad. In other words. Dr. Martin’s basis is too

narrow and Dr. Pendleton’s is too broad. For this Court to

conclude that there is or there is not discrimination based on

the conclusions of Dr. Pendleton and Dr. Martin would not

be proper. While the Court will take into consideration Dr.

Pendleton’s and Dr. Martin's reports and conclusions, they

will not control. In other words, this Court does not feel that

it is proper to pick and choose between the two reports and

then draw a conclusion as to whether there was or was nol

discrimination based on these reports.

There is much better evidence, based on the testimony

and exhibits in this case, upon which this Court can base its

conclusions as to whether there was or Was not

discrimination.

There is a cumulative combination of facts and

circumstances upon which this Court can conclude whether

there was or was not discrimination. These include, and are

not limited to, the following:

a. The various collective bargaining agreements

between the unions, employers, and employers’

associations.

87a

b. The International Union’s requirement that one must

be “working in the calling” before he or she may become a

member of the union.

c. By custom and practice and by various agreements,

the employers may hire employees as they choose, without

any active control by the union or overseeing by the union

in regard to discrimination.

d. The union will admit into membership any person

who has a job which means that he is in the calling.

e. The union requires that anyone who gets a job and is

in the calling and is not a union member must join the union

within seven days of getting the job.

f. In 1975, the union membership was 100 with 10

being black. In 1985, the union membership was 500 with

approximately 20 being black. Between 1980 and 1985, 54

new members were initiated into the union or admitted into

the union and one was

This text is long and has been trimmed here. Open the source document for the complete record.