Opposition Brief — Laborers' International Union of North America v. Alexander

Supreme Court, U.S.

Be ee ee

No. 99-739

In Che OFFICE. OF THE CLERK

Supreme Court of the United States

LABORERS’ INTERNATIONAL UNION

OF NORTH AMERICA,

Petitioner,

DAVINE ALEXANDER, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF IN OPPOSITION

Edward G. Kramer #0024873

Counsel of Record

Kenneth J Kowalski #0024878

David G. Oakley #0068362

KRAMER & ASSOCIATES, L.P.A.

3214 Prospect Avenue

Cleveland, Ohio 44115-2600

(216) 431-5300

Alan C. Rossman #0019893

330 Standard Building

Cleveland, Ohio 44113

(216) 621-7292

Attorneys for Respondents

A A ea a aT nS SE

" LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

QUESTIONS PRESENTED

1. Whether an International Union can be held liable

under Title VII and 42 U.S.C. § 1981 under an agency

theory for the discriminatory actions of an affiliated local

on a record including facts such as: the International was

the signatory on a National Maintenance Agreement

containing a clause requiring the International to insure that

all applicable civil rights laws will be complied with; the

International delegated its referral authority to an affiliated

local while on notice that the affiliated local had engaged in

a historical pattern of discrimination based in part upon the

application of a rule dictated by the International

Constitution; and the International Union was on notice of

continuing discrimination by the local union in its referral

and membership policies.

2. Whether an International Union which has delegated

its responsibility as to referrals under a contract signed by

the International to a local affiliate with an historical pattern

of discrimination is under an affirmative obligation to

investigate charges of discrimination by the local which

stem in part from the application of a rule created by the

International Union.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......--- +e eeeees i

TABLE OF CONTENTS .......--ccceececeees il

TABLE OF AUTHORITIES ........- eee eeees ili

STATEMENT OF THE CASE .......---+eeee> 2

A. Factual Background .........++++. 2

B. Proceedings Below.........++++:5 3

REASONS FOR DENYING THE WRIT .........-.- 3

1. THIS CASE TURNS ON FACTUAL

DETERMINATIONS AND WAS

CORRECTLY DECIDED BY THE

LOWER COURTS .....--eeeeeese 5

Il. THE THEORIES OF LIABILITY

UNDER WHICH LIUNA WAS

FOUND LIABLE ARE VALID

AND IN ACCORDANCE WITH

SET TiO LAW 6 oss CEN at ees 7

A. Vicarious Liability .......... 8

B. Affirmative Duty ..........- 12

Ill. THIS CASE PRESENTS NO

ISSUE REQUIRING REVIEW

BY THIS CPUs hick eee ce ves 16

CONIC AIIIOIN 5a RE a 18

TABLE OF AUTHORITIES

CASES

Alexander v. Local 496,

860 F.Supp. 410 (N.D.Ohio 1994) ........

Amendolare v. Schenkers Intern. Forwarders, Inc.,

747 F. Supp. 162 (E.D.N.Y. 1990) .......

American Shipbuilding Company v. NLRB,

380 U.S. 300 (1965) .. 1... eee ewe erees

Am. Soc. of Mech. Eng'rs v. Hydrolevel Corp.,

056 U8; 556 CSE) ccs cee

Berger v. Iron Workers Local 201,

843 F.2d 1395 (D.C. Cir. 1988),

cert. denied, 109 S. Ct. 3155 (1989) .......

Brenner v. Local 514,

927 F. 2d 1283 (3d Cir. 1991) ..........

Carbon Fuel v. United Mine Workers,

MAGUS, ZIZ GTS) ocd ec et eens

Chapa v. Local 18,

737 F. 2d 929 (11th Cir. 1984) ..........

Dowd v. International Longshoremen's Ass'n,

975 F.2d 779 (11th Cir.1992) .........-.

iil

Goodman v. Lukens Steel Co,

OOo Ui 9. GAG GOR 6 hoa ws bah 5 a ek a 14,15

Glus v. G.C. Murphy Co.,

629 F.2d 248 (3d Cir. 1980),

vacated, 451 U.S. 935 (1981),

and on remand aff'd in relevant part,

654 F.2d 944 (3d Cir. 1981) . 1... ce eee ee eee 8

Graver Mfg. Co. v. Linde Co.,

336 U.S. 271 CE ise i sk aes eK 4

Hull v. Cuyahoga Valley Bd. of Educ.,

926 F.2d 505 (6 Cir. 1991) 2.0... eee eee eee 15

Kaplan v. IATSE,

525 F.2d 1354 (& Cir. 1975) oc ce eee e's 6,12

Laughon v. International Alliance of

Theatrical Stage Employees,

1999 U.S. Dist. LEXIS 4783 (N.D. Cal. April 2, 1999)..17

Local 1814, Int'l Longeshoremen's Assoc. v. NLRB,

735 F.2d 1384 (D.C. Cir.1984) 2... ccc eee eee 8

Macklin v. Spector Freight Systems, Inc.,

156 U.S. App. D.C. 69, 478 F.2d 979, 989

D.C. Ce TRIS aS RCFE EES Us Be 14

Mekuria v. Holiday Universal, Inc.,

1999 U.S. App. LEXIS 10621, *6

D.C. Cir. Maly 5, IO ie ec is eae ee tes 17

iV

Metco Products, Inc. v. NLRB,

884 F.2d 156 (4th Cir.1989) . 0... eee eee eee 8

Myers v. Gilman Paper Corp. .,

544 F.2d 837 (5th Cir.1977) .. 0... ee ee eee 8,12

N.L.R.B. v. Donkin's Inn,

532 F.2d 138 (9th Cir. 1976) ....... 2 eee eeeeee 8

Patterson v. American Tobacco Co.,

535 F.2d 257 (4th Cir.1976) 2.1... cee ee ee ee eee 9

Phelan v. Local 305,

tex fe 8. Be fo RR 72 areca ware ee 9

Sagers v. Yellow Freight System, Inc.,

529 F.2d 721 (5* Cir. 1976) 1.2... cee ec eeces 6,9

Shimman v. Frank,

625 F. 2d 80 (6th Cir. 1980)... 1... cc ce ee ee eee 9

Sinyard v. Foote & Davies Div. of McCall Corp.,

577 F.2d 943 (Sth Cir. 1978) ........2-446- 8,10,12

UMWA v. Coronado Coal Co.,

SOO AT, SU MIOEED 5 oe kc deca ick Cee ewe ese 14

United States v. Virginia Electric and Power Co.,

327 F. Supp. 1034 (E.D.Va.1971) .......-+-55-- 7

No. 99-739

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1999

LABORERS’ INTERNATIONAL

UNION OF NORTH AMERICA

Petitioner,

Vv.

DAVINE ALEXANDER, et al.

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Edward G. Kramer #0024873.

Counsel of Record

Kenneth J. Kowalski #0024878

David G. Oakley #0068362

KRAMER & ASSOCIATES, L.P.A.

3214 Prospect Avenue

Cleveland, Ohio 44115-2600

(216) 431-5300

Alan C. Rossman #0019893

330 Standard Building

Cleveland, Ohio 44113

(216) 621-7292

Attorneys for Respondents

]

STATEMENT OF THE CASE

A. Factual Background

Respondents incorporate by reference the statement

of facts in the opinion of the Sixth Circuit Court of Appeals,

Pet. App. 2a-8a, and the findings of fact by the District

Court. Pet. App. 75a-95a. In addition, Respondents wish

to call the Court's attention to certain facts omitted from

Petitioner's recitation.

Regarding the National Maintenance Agreement

signed by Petitioner Laborers International Union of North

America (“LIUNA”) in 1985, it is important to note that the

agreement was “between the employer and the International

Union only.” It is true as pointed out by Petitioner that “no

LIUNA representatives or agents were involved” in the

administration of the referral system for the Perry Plant.

Petitioner neglected to mention that “the Maintenance

Agreement provided that Local 496 was to act as LIUNA’s

agent in filling all labor vacancies at Perry.” Pet. App. 5a.

In addition, while the Project Labor Agreement (PLA)

provided that union membership and constitutional

provisions would not affect referrals, the Maintenance

Agreement contains no such provision.

The District Court also found that LIUNA was

aware of over 50 discrimination charges filed against Local

496 because the business manager of Local 496 had

informed International Union Regional Representatives

Thomas J. Arconti and Charles Sutton who, in turn,

notified the International's General President of the charges.

Further, LIUNA had its own arrangement with the Equal

Empioyment Opportunity Commission to forward to it

copies of charges filed against affiliated locals, including

Local 496. Finally, the District Court found that LIUNA

had the power and authority under its constitution to

intervene in the affairs of its affiliate local union to

eliminate discriminatory activities. Pet App.93a-95a.

B. Proceedings Below

Respondents’ disagreement with Petitioner’ s

characterization of the lower court holdings is discussed in

the argument that follows. As to the proceedings in the

lower courts, Respondents wish to add that, following the

District Court’s judgment as to liability, LIUNA moved for

reconsideration three times. All three of its motions were

denied. The second of those motions, styled a Motion for

Clarification or for Reconsideration, was referred to

Magistrate Judge Hemann, who recommended denial of the

motion. Her report and recommendation, which was

subsequently adopted by Judge O’ Malley, is reported as

Alexander v. Local 496, 860 F.Supp. 410 (N.D.Ohio

1994).

REASONS FOR DENYING THE WRIT

In petitioning the Court to review the lower court

decisions in this case, Petitioner Laborers’ International

Union of North America (LIUNA) is primarily asking the

Court to conduct an in-depth factual inquiry to determine

whether the lower courts properly applied the law to the

facts as presented in the record. LIUNA understandably

disagrees with the factual conclusions the lower courts

reached and, in addition, seems to challenge the validity of

one of the theories of liability applied here. Petitioner also

makes unsupported assertions that the lower court decisions

provide dangerous precedent that could lead to dire

consequences for both international unions and parent

corporations. ;

The Court should deny Petitioner’s request for

review for a number of reasons. First, even if this Court

were inclined to accept for review a case in which its

primary task on review would be to determine whether the

facts in the record support the judgment,' as is shown

below, under the proper clearly erroneous standard of

review, the Court would have to affinn. Moreover, as to

the legal arguments raised by Petitioner, the lower Courts

both applied theories of liability that have been consistently

recognized by other courts, including those courts whose

opinions are cited and relied on by LIUNA. And while

Petitioner makes exaggerated claims of the possible far-

reaching effects of the decisions below, especially as to the

affirmative duty theory of liability, a more sober review of

the holdings below indicates that there is nothing new here

beyond an unusual factual record that supports the finding

that LIUNA can be held liable under both the vicarious

liability and affirmative action theories. That courts have

not found liability under one or both of these theories on

different facts undercuts Petitioner’s argument that this case

‘Of course, such a role is not one in which the Court should place

itself: “A court of law, such as this Court is, rather than a court

for correction of errors in factfinding, cannot undertake to review

concurrent findings of fact by two courts below in the absence of

a very obvious and exceptional showing of error.” Graver Mfg.

Co, v. Linde Co., 336 U.S. 271, 275 (1949).

4

deserves the Court’s attention. Because the decisions below

are in accordance with settled law, the petition should be

denied.

I. THIS CASE TURNS ON FACTUAL

DETERMINATIONS AND WAS

CORRECTLY DECIDED BY THE

LOWER COURTS

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

determined that LIUNA was both independently and

vicariously liable for the historical pattern and practice of

discrimination by Local 496. Either finding is sufficient to

support the judgment of the Court of Appeals.

The Court of Appeals affirmed the District Court’s

finding that an agency relationship existed between LIUNA

and Local 496. The factual basis for this finding is interwoven

into the findings of fact of the District Court and will not be

fully reiterated here. Some of the key points are: Local 496

had a historical pattern of racial discrimination which pre-

dated the Perry Nuclear Power plant project; the working in

the calling rule which was responsible in part for the disparate

impact; LTUNA was responsible for the creation of the

working in the calling rule; the National Maintenance

Agreement which provided for Local 496 to be the exclusive

hiring hall for work at Perry was negotiated and signed by

LIUNA; the National Maintenance Agreement requires that a

signatory employer hire workers in accordance with the hiring

procedure existing in the territory where the work is

performed; LIUNA delegated its hiring authority under the

National Maintenance Agreement to Local 496; and that,

pursuant to the National Maintenance Agreement, LIUNA

assumed the non-delegable duty to insure that all hiring was

done in a non-discriminatory manner.

blacks practiced by Local 490. The Court of Appeals noted

agency standard of the common law.” Pet. App. 24-2Sa

(quoting Berger v. Iron Workers Reinforced Rodmen Local

201, 843 F.2d 1395, 1428 (D.C.Cir. 1988), cert. denied, 109

S. Ct. 3155 (1989)). The Court of Appeals, having

States v. Virginia Electric and Power Co. , 327 F. Supp.

1034, 1042 (E.D.Va.1971) (holding the international liable

for the discriminatory results of a collective bargaining

agreement to which it was a signed party).

LIUNA erroneously characterizes the holding of the

_ US. Court of Appeals for the Sixth Circuit to be based upon a

finding of mere acquiescence. (Pet. p. 19) The language of

the opinion clearly refutes this position. LIUNA argues in

effect that the only basis of the finding of liability on the part

of Local 496 related to its administration of the project labor

agreement (“PLA”). This again inaccurately characterizes the

majority opinion. The Sixth Circuit panel determined that

there was an ongoing history of discrimination practiced by

Local 496, and that the referral practice under the PLA was

the most recent example of such discrimination. LIUNA’s

affirmative duty to take action to remedy past discrimination

by Local 496 likewise followed from the fact that LIUNA

created the rule which resulted in the disparate impact and

served to lock in past discrimination.

Il. THE THEORIES OF LIABILITY UNDER

WHICH LIUNA WAS FOUND LIABLE

ARE VALID AND IN ACCORDANCE

WITH SETTLED LAW :

The District Court found that Local 496 was guilty

of intentional discrimination against class members in both

its membership and job referral policies, and that LIUNA

was liable under both agency and affirmative duty theories.

Pet. App. 105a-106a. Under the agency theory, LIUNA

was held liable according to principles of vicarious liability.

The second theory held LIUNA to primary liability based

upon an affirmative duty to oppose known discrimination by

7

its local. Both theories have been applied to questions of

liability of international unions by a number of courts. Both

require a careful analysis of the facts of a specific case to

determine whether liability can be found.

A. Vicarious Liability

Agency doctrines have often been employed to find

labor unions liable for the acts of their agents. Local 1814,

Int'l Longeshoremen's Assoc. V. NLRB, 735 F.2d 1384,

1394 (D.C. Cir.1984). See also, Amendolare v. Schenkers

Intern. Forwarders, Inc., 747 F. Supp. 162, 170-71

(E.D.N.Y. 1990) (holding that apparent authority could be

used to find labor union liable under RICO for negligence

or acquiescence in allowing criminal element to infiltrate its

organization). Generally, the existence and scope of agency

relationships are factual matters. Metco Products, Inc. v.

NLRB, 884 F.2d 156 (4th Cir. 1989); N.L.R.B. v. Donkin's

Inn, 532 F.2d 138, 141 (9th Cir. 1976); Local 1814, Int'l

Longshoremen's Ass'n, 735 F.2d at 1394. Whether the law

imposes liability on an international union for

discriminatory acts of a local affiliate depends on the

entities’ interrelationship with respect to the act from which

liability stems. Sinyard v. Foote & Davies Div. of McCall

Corp., 577 F.2d 943, 945 (Sth Cir. 1978). See also, Glus

v. G.C. Murphy Co., 629 F.2d 248 (3d Cir. 1980),

vacated, 451 U.S. 935, 101 S. Ct. 2013, 68 L. Ed. 2d 321

(1981), and on remand aff'd in relevant part, 654 F.2d 944

(3d Cir. 1981) (International union held liable as sole

signatory to collective-bargaining agreement for a portion of

the period during which discrimination took place); Myers

v. Gilman Paper Corp., 544 F.2d 837, 851 (5th Cir.1977)

(affirming district court's holding that the international

union was liable based on the fact that the "international

would generally provide advisors to review and often

comment upon the local's bargaining positions," and the

local would submit contracts to the international for

approval); Patterson v. American Tobacco Co. , 535 F.2d

257, 270-71 (4th Cir.1976) (international held liable where

the vice president of the international acted as "advisor" to

the local, played active role in negotiations for bargaining

agreements in 1971 and 1974, and all collective bargaining

agreements needed the approval of the international) ;

Sagers, 529 F.2d at 737 (international union held liable

under Title VII due to its involvement with the « ntracts at

issue).

There is nothing new here. As these cases indicate,

agency law has long been applied in cases involving the

question of an international union’s liability for actions of a

local. As pointed out by Petitioner, in some cases the

courts find that no agency relationship exists that would

support a finding that an international is liable for the

actions of a local. E.g., Brenner v. Local 514, 927 F. 2d

1283 (3d Cir. 1991 ) (after very fact-specific inquiry, court

notes that International not party to collective bargaining

agreement and holds that local not acting as agent); Phelan

v. Local 305, 973 F. 2d 1050 (2d Cir. 1992) (court looks

carefully at record to decide that LMRA claims for failure

to refer a member for jobs due to internal local union

politics do not implicate United Association); Shimman v.

Frank, 625 F. 2d 80 (6th Cir. 1980) (after thorough

analysis of facts, court finds international union not liable

under common law agency principles)*; Sinyard, 577 F.2d

943 (after careful examination of the facts, court finds lack

of involvement of international in challenged activities);

Chapa v. Local 18, 737 F. 2d 929 (11th Cir. 1984)

(looking at specific facts, court holds that presence of

international officers at local meetings, in which one

international official participated in his capacity as officer

of local and the other merely observed, not sufficient to

establish agency relationship).

What is common in both sets of cases is the care

with which the courts view the factual record in trying to

determine whether an international union can be held

vicariously liable for the actions of a local union under

agency principles, because the agency relationship

determination is very dependent on the facts of the specific

case: “The diverse situations possible in the varied

relationships between parent and local unions make

individual examination of the facts, rather than a

mechanical application of assumptions, a vital necessity.”

Sinyard, 577 F. 2d at 947. The vicarious liability

determination is quite fact-specific. As discussed above,

the lower courts in this case made detailed factual findings

on the way to their liability finding as to the International

and it is these findings with which the International

disagrees.

2 ‘Though tthe result in this prior decision of the Sixth Circuit differs

from the case at hand, the court was consistent in both cases in

carefully reviewing the factual record to determine whether an

agency relationship could be found under common law agency

principles. Thus, the law in the Sixth Circuit is consistent with

that of alll the other circuits that have dealt with these issues.

10

Petitioner complains that the lower courts premised

liability solely on LIUNA’s failure to remedy the

discrimination of Local 496. However, Petitioner

conveniently ignores one of the crucial facts establishing an

agency relationship: LIUNA signed the National

Maintenance Agreement and gave Local 496 the

responsibility to act as its agent in making referrals.

Indeed, Local 496 had sole responsibility for referrals even

though half of the referrals were to go to Local 860. This

arrangement enabled the business agent of Local 496 to

send all requests for black laborers to Local 860, thus

avoiding referring any members of the class. But, more

importantly for this Court's purposes, what is lacking from

Petitioner’s argument is an indication that the lower courts

applied a wrong standard of law. Of course, such an

argument would be unavailing, since both the District Court

and the Court of Appeals specifically discussed and applied

the same common law agency principles that are set forth

by Petitioner as controlling. For instance, the Court of

Appeals relied upon and quoted both Carbon Fuel v. United

Mine Workers, 444 U.S. 212, 217-18 (1979); the case upon

which Petitioner places the heaviest reliance,’ as well as

3 In that case, the Fourth Circuit carefully looked at the factual

circumstances and determined that in light of the bargaining

history and the specific terms of the collective bargaining

agreement, the International could not be held vicariously

liable. Carbon Fuel Co., 582 F.2d at 1350. This Court affirmed,

relying on the common law agency theory. 444 U.S. at 216.

In the present action the lower courts applied the same agency

principles to such factual circumstances as LIUNA being a

signatory to the National Maintenance Agreement, which imposed

duties and allowed the local, as agent of LIUNA, to fill vacancies

at the Perry Nuclear Power Plant, and arrived at a different result.

11

Sinyard, 577 F. 2d at 945, upon which Petitioner also

extensively relies.

The leading case on these issues is Berger, 843 F.

2d 1395: which, as pointed out by Petitioner, dissenting

Judge Batchelder said “aptly ties together the existing case

law and sets forth the correct approach.” Pet. App. 59a

n.16. Virtually all decisions dealing with these issues since

Berger use it as a starting point. So did the Sixth Circuit in

its decision below, paraphrasing Berger at length. Pet. App.

22a. The Court made clear that it was applying the

common law agency principles espoused by the Berger

court for such determinations. That Petitioner is unhappy

with the result of that application is not grounds for review

by this Court.

B. Affirmative Duty

In Berger, the court recognized that in certain

circumstances a labor organization’s failure to act to prevent

discrimination by others “may be an independent basis for

liability under Title VII and section 1981.” Berger, 843 F.

2d at 1429. In that case the court did not reach the question

of whether the International union could be held liable in

that way for breaching an affirmative duty to oppose

discrimination by its local. Other courts have found

international unions to be in breach of affirmative

obligations to act when aware of discrimination. Kaplan,

525 F.2d at 1360; Myers, 544 F.2d at 850.

Petitioner seems to be arguing that an international

union can never be held liable for discrimination by a local

union under an affirmative duty theory. This is contrary to

12

Berger and other courts who have found the possibility of

such liability. It is true that a number of courts have

rejected claims of liability premised on affirmative

obligations, but those decisions are based on the facts

presented in those cases. None of the decisions precludes

the possibility of such a claim.

In the instant case, the District Courts below made

factual findings that LIUNA was or should have been aware

of the discriminatory practices of Local 496 but refused to

investigate or take any action whatsoever. Pet. App. 95a.

Of course that refusal to investigate must be viewed in the

context of LIUNA’s delegation to the local of the referral

duties under the contract it signed and the numerous

indications of complaints about the way the local undertook

to fulfill those referral duties. As the material in its files

shows, LIUNA was on notice of Local 496's discriminatory

policies since at least May of 1983. Yet, LIUNA admitted

that it did nothing to investigate the many charges of

discrimination against the Local.

LIUNA adhered to a “hear no evil, see no evil"

approach in spite of being regularly informed of charges

filed against the local. Indeed, LIUNA defended on the

ground that it did nothing to investigate the charges.

LIUNA's argument is in direct conflict with the broad

remedial purposes of Title VII and Section 1981, as well as

LIUNA's duties under the National Maintenance

Agreement. LIUNA cannot remain wilfully blind in the

face of numerous charges of discrimination against a local

union which it has designated its agent to handle referrals to

a project - especially when that local uses LIUNA’s own

constitutional provision to effect that discrimination - and

13

ere amma

then cite its own deliberate inaction as evidence that it did

not have knowledge of the merit of the charges.* Macklin v.

Spector Freight Systems, Inc., 156 U.S. App. D.C. 69, 478

F.2d 979, 989 (D.C. Cir. 1973)(failure of an international

union to take action after becoming aware of discrimination

resulting from a collective bargaining agreement constitutes

a Title VII violation).

LIUNA's cites to the concurring dictum of

Goodman v. Lukens Steel Co, 482 U.S. 656, 688 (1987),

which states "an affirmative duty to oppose employer

discrimination would work [a disruption in the basic

policies of the labor laws]." (emphasis added). Here it is

the discrimination by the local union, not an employer,

41 TUNA's “hear no evil, see no evil" argument is similar to an

argument rejected by the United States Supreme Court in

Am. Soc. of Mech. Eng'rs v. Hydrolevel Corp. , 456 U.S. 556,

569-574 (1982) (distinguishing UMWA v. Coronado Coal Co.,

259 U.S. 244 (1922). The case involved a private cause of action

under the antitrust laws. The Defendant, a non-profit association,

argued that it could not be held liable under an “apparent authority"

theory, and that it was only liable if it affirmatively ratified the

actions of it agents. In rejecting this approach, the Supreme Court

noted that a “principal purpose of the antitrust private cause of action.

_. . is, of course, to deter anticompetitive practices." Id. at 572

(citations omitted). The court stated that under defendant's rule,

the defendant “could avoid liability by ensuring that it remained

ignorant of its agents' conduct, and the antitrust laws would

therefore encourage ASME to do as little as possible to oversee its

agents." Jd. See also, Dowd v. International Longshoremen's Ass'n,

975 F.2d 779 (11th Cir.1992) (common law agency principles broadly

construed under the NLRA due to "clear legislative policy to remove

all taint of an employer's compulsion, domination, or influence.")

(citations omitted). Title VII and §1981 are similarly remedial and

deterrent in nature.

14

which is challenged. This differs substantially from the

situation described in the Goodman concurrence. LIUNA

licenses the local and has greater contro! over its actions.

LIUNA lends its name and credibility to the Local. As the

majority opinion in the Court of Appeals points out (Pet.

App. 23a n.7), the question of whether an agency

relationship exists between an employer and a union,

traditionally on opposite sides in the structure of labor

relations, is very different than the question as to such a

relationship between an international and one of its

affiliates. More instructive is the majority opinion in

Goodman, which held the union liable for deliberate

inaction. Id. at 666.

The situation is also substantially different from the

iabor cases cited by LIUNA. Neither strikes nor lockouts

are per se prohibited. See, ¢.g., American Shipbuilding

Company v. NLRB, 380 U.S. 300, 85 S.Ct. 955 (1965). In

sharp contrast, racial discrimination is prohibited by Title

VII and § 1981.° These statutes are remedial in nature,

designed to remedy the lingering effects of past

discrimination. See, e.g., Hull v. Cuyahoga Valley Bd. of

Educ., 926 F.2d 505, 511 (6" Cir. 1991).

5 Although a strike in breach of a no strike clause is prohibited,

it is mal in prohibitum, rather than mal in se.

15

LIUNA had knowledge of the surrounding

circumstances of Local 496 via its contacts with the EEOC

and communications from regional officials of the

International Union. Moreover, LIUNA had negotiated and

signed the agreement which authorized Local 496 to act as

its agent when referring individuals to work at the Perry

site. Finally, and most importantly, the International Union

acquiesced in the discriminatory activities of Local 496.

Unlike the purely economic issues involved in the cases

cited by LIUNA, there is a moral dimension to the issues

presented here.

Ill. THIS CASE PRESENTS NO ISSUE

REQUIRING REVIEW BY THIS COURT

As discussed above, the lower courts in deciding this

case applied settled law as regards the liability of LIUNA.

LIUNA’s real quarrel with the decisions below concerns the

application of the facts to that law. Thus, this is not a case

meriting review by this Court.

Moreover, the dire consequences predicted by

LIUNA concerning the likelihood that international unions

will now be subject to suit for any alleged civil rights

violations of any of their affiliates as a result of the holding

by the Sixth Circuit in this case will simply not occur.

Again, the principles of law applied here are hardly novel.

It is only under the type of egregious facts found by the

District Court in this case that an international union has

reason to fear the possibility of liability. Petitioner should

not doubt the ability of the federal courts to competently

distinguish cases in which the facts do not support liability

under either accepted theory from those in which the facts

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do. See, e.g., Laughon v. International Alliance of

Theatrical Stage Employees, 1999 U.S. Dist. LEXIS 4783,

*24 (N.D. Cal. April 2, 1999) [unreported]; in which the

court cited to the District Court opinion in this case for its

affirmative duty holding, yet found that based upon the facts

ted in that case, the international union could not be

held liable under either the vicarious liability or the

affirmative duty theories.

Nor is it likely that the decisions below would be

utilized to create heretofore unforseen liabilities for

corporate parents for the activities of subsidiaries or on

affiliated employers, as suggested by Petitioner. Again, the

decisions below do not make new law in the international-

local union context, let alone in another context.

Furthermore, the holdings of Berger and its progeny have

been limited to the union context. For instance, in a recent

opinion of the D.C. Circuit, that court, commenting on the

applicability of its own decision in Berger to the corporate

liability context, stated: “But the company does not explain

why that decision--by its own terms limited to the union

context and based upon caselaw and principles unique to

that context, see 843 F.2d at 1 427-30--sensibly could be

extended as a requirement for vicarious liability of a

company for the actions of its employee-agents. We do not

think it can.” Mekuria v. Holiday Universal, Inc., 1999

U.S. App. LEXIS 10621, *6 (D.C. Cir. May 5, 1999)

[unreported].

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CONCLUSION

For the foregoing reasons, the Petition for Certiorari

should be denied.

Respectfully submitted,

EDWARD G. KRAMER #0024873

Counsel of Record

KENNETH J. KOWALSKI #0024878

DAVID G. OAKLEY #0068362

Kramer & Associates, L.P.A.

3214 Prospect Avenue

Cleveland, Ohio 44115-2600

(216) 431-5300

ALAN C. ROSSMAN #0019893

330 Standard Building

Cleveland, Ohio 44113

(216) 621-7292

ATTORNEYS FOR RESPONDENTS

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