American Federation of State, County and Mun. Employees Local 506 v. Private Industry Council of Trumbull County

Decision Date20 August 1991
Docket NumberNo. 90-3710,90-3710
PartiesAMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES LOCAL 506, Plaintiff-Appellee, v. The PRIVATE INDUSTRY COUNCIL OF TRUMBULL COUNTY, and City of Niles, Ohio, Defendants, Joseph J. Parise, Mayor, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

David L. Engler (argued), Youngstown, Ohio, for plaintiff-appellee.

Joseph T. Dull (argued), Niles, Ohio, for defendant-appellant.

Before MARTIN and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.

MILBURN, Circuit Judge.

Defendant Joseph J. Parise, Mayor of the City of Niles, Ohio, appeals the judgment of the district court holding that the Mayor and the City violated 29 U.S.C. § 1553(b)(3) of the Job Training Partnership Act, and enjoining defendants from placing Summer Youth Employment Training Program participants in the City's street department.

The principal issues on appeal are (1) whether the Job Training Partnership Act provides an implied private right of action, (2) whether reduction of a work force through attrition violates 29 U.S.C. § 1553(b)(3)(B), and (3) whether this action was barred by the doctrine of issue preclusion following the administrative proceedings. For the reasons that follow, the judgment of the district court is reversed, and the injunction against the defendants is vacated and dissolved.

I.

This case arose out of the planned participation by the City of Niles, Ohio, in the Summer Youth Employment Training Program ("SYETP"), administered by the Private Industry Council ("PIC") of Trumbull County, Ohio. SYETP is authorized and funded by the Job Training Partnership Act of 1982 ("JTPA"), 29 U.S.C. § 1501 et seq., which replaced the Comprehensive Employment and Training Act ("CETA"), 29 U.S.C. § 801 et seq. The City of Niles requested SYETP participants to work in various city service departments for the summer of 1989. The American Federation of State, County, and Municipal Employees Local 506 ("AFSCME") represents employees who work in the city service departments. The collective bargaining agreement between AFSCME and the City contained no provision regarding the minimum number of workers to be employed by the City.

On April 18, 1989, AFSCME filed a complaint seeking a preliminary and permanent injunction to prevent PIC, the City of Niles, and the Mayor from placing SYETP participants in various city service departments including parks and recreation, street, and water. On May 4 and May 15, 1989, the district court conducted a hearing on AFSCME's motion for a preliminary injunction. Without addressing the merits of the case, the district court denied AFSCME's motion on the grounds that it had failed to exhaust the administrative remedies required by the JTPA, and the court transferred the case to its non-assigned docket. AFSCME pursued its administrative remedies by filing a complaint pursuant to the procedure established by the JTPA. On August 16, 1989, a local level hearing officer issued a decision denying AFSCME's complaint, and the decision was adopted and affirmed by a state level hearing officer on September 22, 1989.

On May 16, 1990, AFSCME filed a motion in the district court to transfer the case from the non-assigned to the active docket asserting that it had exhausted the grievance procedure provided by the JTPA, and it now sought review of the administrative decision pursuant to 29 U.S.C. § 1554. The district court granted the motion to reactivate the case and subsequently granted AFSCME leave to amend its complaint to seek declaratory relief. On June 25, 1990, the district court conducted a hearing on the merits, and on July 12, 1990, the court entered a judgment and memorandum opinion holding that the JTPA provided AFSCME an implied private right of action against the City for alleged violations of 29 U.S.C. § 1553(b)(3). The district court held that the City of Niles and Mayor Parise violated 29 U.S.C. § 1553(b)(3) by reducing the work force in the street department through attrition with the intention of using SYETP participants to perform the street department work. 748 F.Supp. 1232. The district court enjoined defendants from placing SYETP participants in the street department. Mayor Parise timely filed notice of appeal. 1

II.

As a preliminary matter, we must establish that AFSCME has standing to bring this action. Although neither party has raised the issue of standing, "this court can and must address the issue on its own motion." Jaimes v. Toledo Metro. Hous. Auth., 758 F.2d 1086, 1092 (6th Cir.1985). It is well-settled that "[e]ven in the absence of injury to itself, an association may have standing solely as a representative of its members." International Union, UAW v. Brock, 477 U.S. 274, 281, 106 S.Ct. 2523, 2528, 91 L.Ed.2d 228 (1986). In Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977), the Supreme Court stated a three-part test for determining whether an association has standing to bring an action on behalf of its members:

(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

We hold that the AFSCME satisfies this three-part test and has standing to bring this action on behalf of the city service department employees it represents.

"The question whether a statute creates a cause of action, either expressly or by implication, is basically a matter of statutory construction.... [W]hat must ultimately be determined is whether Congress intended to create the private remedy asserted...." Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979). The issue is subject to de novo review by this court. See Cannon v. University of Chicago, 441 U.S. 677, 688-89, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979).

In deciding whether a federal statute confers an implied private right of action, we consider four factors:

1) [whether] the plaintiff is of the class for whose especial benefit the statute was created; 2) whether there is any legislative intent, explicit or implicit, which either creates or denies a private remedy; 3) whether finding an implied cause of action is consistent with the underlying purposes of the legislative scheme; and 4) whether the cause of action is one that is traditionally left to state law such that it would be inappropriate to infer a cause of action based on only federal law.

Kaiser v. United States Postal Service, 908 F.2d 47, 50 (6th Cir.1990) (citing Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975), cert. denied, --- U.S. ----, 111 S.Ct. 673, 112 L.Ed.2d 665 (1991)). The central focus of the inquiry is congressional intent. Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988); Lamb v. Phillip Morris, Inc., 915 F.2d 1024, 1028 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 961, 112 L.Ed.2d 1048 (1991).

The stated purpose of the JTPA is:

To establish programs to prepare youth and unskilled adults for entry into the labor force and to afford job training to those economically disadvantaged individuals and other individuals facing serious barriers to employment, who are in special need of such training to obtain productive employment.

29 U.S.C. § 1501. The JTPA was enacted primarily to benefit youth, unskilled adults, and other individuals facing serious barriers to employment. Other potential beneficiaries of the JTPA include employees who have "been treated unfairly in light of the standards imposed under § 1553 or who [have] been discriminated against in violation of § 1577." West Virginia v. Anchor Hocking Corp., 681 F.Supp. 1175, 1176 (N.D.W.Va.1987).

Section 1553(a) requires that JTPA participants be provided benefits and working conditions granted to other employees doing the same type of work. Section 1553(b) protects regular employees from being displaced by JTPA participants. Two district courts have held that section 1553 provides a cause of action for employees who are treated unequally or unfairly in light of the standards imposed under the statute. See Anchor Hocking, 681 F.Supp. at 1176; Clinch v. Montana AFL-CIO, 633 F.Supp. 872, 876 (D.Mont.1986). However, to imply a private right of action "the language of the statute in question must do more than confer benefits, for '[t]he question is not simply who would benefit ..., but whether Congress intended to confer federal rights upon these beneficiaries.' " Osborn v. American Ass'n of Retired Persons, 660 F.2d 740, 743 (9th Cir.1981) (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981)).

The second Cort factor requires examination of the legislative history for evidence that Congress intended that a private right of action be available under the statute. AFSCME has identified no legislative history regarding a private cause of action under the JTPA. The district court found that the legislative history of the JTPA does not address whether the statute creates a private right of action, and our independent review of the legislative history confirms the district court's finding. Since the legislative history is silent regarding a private right of action, this court could "infer that Congress intended no such result." Lamb, 915 F.2d at 1029. "Although congressional silence is not necessarily fatal to implication of a private right of action, 'implying a private right of action on the basis of congressional silence is a hazardous enterprise at best.' " Osborn, 660 F.2d at 745 (quoting Touche Ross & Co. v. Redington, 442 U.S. 560, 571, 99 S.Ct. 2479, 2486, 61 L.Ed.2d 82 (1979)).

In deciding whether Congress intended to create a private right of action under the...

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