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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1154

## Text

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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

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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.

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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

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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.

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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

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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

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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

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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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17a

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 i

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0309%3A2. Public record. Not legal advice.