Franklin v. Sheet Metal Workers Union No. 2, 06-0004-CV-W-GAF.
| Decision Date | 21 February 2008 |
| Docket Number | No. 06-0004-CV-W-GAF.,06-0004-CV-W-GAF. |
| Citation | 572 F.Supp.2d 1095 |
| Parties | Robert G. FRANKLIN, et al., Plaintiffs, v. SHEET METAL WORKERS INTENATIONAL ASSOCIATION LOCAL UNION NO. 2, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Adam Stofsky, Audrey Wiggins, Megan Moran-Gates, Michael L. Foreman, Sarah Crawford, Lawyers' Committee for Civil Rights, Washington, DC, Arthur A. Benson, Jamie Kathryn Lansford, Arthur Benson & Associates, Kansas City, MO, Adrienne D. Gonzalez, Daniel R. Alonso, Eric Lamons, Joseph M. Drayton, Kaye Schooler, LLP, New York, NY, for Plaintiffs.
Adrienne D. Gonzalez, Kaye Schooler, LLP, New York, NY, Donald Ray Aubry, Jolley, Walsh, Hurley & Raisher, PC, Kansas City, MO, for Defendant.
Pending before the Court are Defendant Sheet Metal Workers International Association Local Union No. 2's ("Local 2") Motion for Summary Judgment and Plaintiffs Robert G. Franklin, et al.'s (collectively "Plaintiffs" or individually Robert Franklin ("Franklin"), Glen Steele ("Steele"), Edward Lewis ("Lewis"), Steve Bailey ("Bailey"), and Leon Booker ("Booker")) Cross-Motion for Partial Summary Judgment, both filed pursuant to Fed.R.Civ.P. 56 ("Rule 56"). (Doc. ## 58, 60). For the reasons set forth below, Local 2's Motion is GRANTED in part and DENIED in part. Plaintiffs' Motion is DENIED.
1. Facts
Local 2 is a labor organization with its principal office in Kansas City, Missouri. (Alexander Aff. ¶ 2). Its function is to negotiate the terms and conditions of employment for members of Local 2 with sheet metal contractors either recognizing Local 2 as the bargaining representative for sheet metal workers within Local 2's geographic jurisdiction or for whom the National Labor Relations Board ("NLRB") has certified Local 2 as the bargaining representative ("Local 2 contractors"). Id. Local 2's jurisdiction includes 100 counties in Missouri and Kansas further divided into six areas for wage-rate and administrative reasons. Id. at ¶¶ 6-7; Alexander Dep. 187:17-23. Approximately 65 of Local 2's 1200 members in the building trades are African American—25 of whom are apprentices. (Lind Dep. 88:25 to 89:8).
Plaintiffs are African-American sheet metal tradesman engaged in the construction.industry. (Doc. # 59, pp.7-8). Plaintiffs Franklin and Bailey are currently Local 2 members. (Compl. ¶ 2). Plaintiff Steele was a Local 2 member until he was determined disabled; he retired on August 15, 2005. (Steele Activity History, Doc. # 59, Att. # 42). Plaintiff Lewis is a Local 2 member who completed his apprenticeship in 1975 but left the trade that year, returning in 1998. (Compl. ¶ 4; Lewis Dep. 16:8-11; 29:1-9). Plaintiff Booker was a Local 2 member until he was determined disabled, retiring on April 27, 2004. (Compl. ¶ 2; Booker Activity History, Doc. # 59, Att. # 44).
From 2001 to the present, contractors signatory to Local 2's Collective Bargaining Agreement ("CBA") have numbered between 70 and 100. (Alexander Aff. ¶ 8). Article 4 of the CBA provides
[w]hen qualified journeymen sheet metal workers are required to properly execute work contracted for by the [signatory contractor] in the manner and under the conditions specified in this Agreement, the [signatory contractor] shall give the Union first opportunity with all other sources to provide suitable journeymen sheet metal workers. If the Union fails to supply journeymen sheet metal workers within forty-eight hours, the [signatory contractor] may hire such employees and refer them to [the Union] for enrollment.
The Union shall select and refer applicants for employment without discrimination against such applicants because of race, color, religion, national origin, age, sex, or in any way affected by Union membership, by-laws, regulation, constitutional provisions or any other aspect or obligation of Union membership, policies or requirements.
[Local 2 contractors] agree[] not to discriminate against able journeymen fiftyfive (55) years of age and older who have ten (10) years good standing in Local Union No. 2. The [signatory contractors] further agree[] to employ one such journeymen for each nine (9) other journeymen if same are available and does not violate discrimination law.
(CBA, §§ 4-2; 4-4; 4-8). The CBA does not specify the precise procedure by which Local 2 is to provide workers to Local 2 contractors.1 See generally Id.
Local 2 therefore implements a referral procedure by which Local 2 members gain employment. (Alexander Dep. 347:10-28). The referral procedure allows unemployed Local 2 members to sign an "out of work" list ("OWL") maintained in the order of signing. (Howerton Dep. 206:4-5) Members who have signed the OWL remain on the list after Local 2 refers them to a Local 2 contractor until they accrue eighty hours of work. Id. at 207:7-13; Alexander Dep. 348:15 to 350:20. In addition, members who want to maintain their position on the OWL but do not want to be called for jobs can ask Local 2 to place them on "will call." (Flach Dep. 59:4-16).
Members who sign the OWL can limit the areas within Local 2's jurisdiction in which they are willing to work; Local 2 separately compiles this information in the members' activity house. (Alexander Aff. ¶ 10). If members turn down three jobs in areas they indicated they would work and for which they are called, Local 2 moves them to the bottom of the list. (Flach Dep. 59:1 to 65:24; 70:1 to 79:25; Referral Proc., Doc. # 59, Att. # 9). Members working on jobs outside Local 2's jurisdiction retain their position on the OWL but Local 2 does not call them until advised they are again available for work. (Alexander Dep. 385:9-17).
Signing the OWL is not the only way for Local 2 members to seek employment. Id. at 175:18 to 176:1. Rather, Local 2 procedures allow members to obtain employment with Local 2 contractors in one of three ways: solicitation, request, or referral. Id. First, members can solicit jobs through direct contact with Local 2 contractors which allows the contractor to decide whether or not to hire the member. (Steele Dep. 80:3-10; Booker Dep. 40:20 to 41:6). Solicitation is the most common method for Local 2 members to obtain employment. (Howerton Dep. 99:8-12; Alexander Dep. 324:9-18).
Second, Local 2 contractors can contact Local 2 and send in a form requesting a particular employee by name. (Flach Dep. 51:13 to 52:6). When a contractor calls Local 2 requesting a specific individual, Local 2 does not, as a matter of course, encourage the contractor to select individuals from the OWL. (Eslinger Dep. 219:17 to 220:14). Principals of Local 2 contractors sometimes attend Local 2 meetings and can have input in a contractor's hiring decisions. (Eslinger Dep. 223:24 to 225:11). These principals or representatives are often Local 2 members. (Davison Dep. 92:17 to 93:13; Huffman Dep. 38:6 to 41:8; Howerton Dep. 39:17 to 40:15).
Third, a referral occurs when a contractor contacts Local 2 to fill manpower needs but does not request specific members by name or respond to a solicitation. (Flach Dep. 49:13 to 51:12). Local 2's referral procedure states Local 2 will go down the list in contacting members on the OWL who have indicated they will work in that particular area and have any specialized skills the contractor may have requested. Id. at 49:13 to 51:12; 59:10 to 62:18; Referral Proc., Doc. # 59, Att. # 9. Contractors can request referrals of Local 2 members with specific skills, in which case Local 2's referral procedures direct it to determine whether the member next listed on the OWL has such a skill and to proceed down the OWL in order until it finds a qualified candidate who accepts the job. Id.
It is common for journeyman at the bottom of the OWL to get jobs quickly through solicitation and requests while journeymen at the top of the OWL for an extended period continue to seek placement through referral. (Huffman Dep. 255:3-22). It is also common for contractors to examine the OWL and request Local 2 members who are lower on the OWL than qualified minority or female journeymen. (Locke Dep. 90:2 to 91:14). In general, contractors are more likely to hire people they know and who have worked for them before and they use the OWL to find such people regardless of their position on the list. (Porter Dep. 66:24 to 67:7; 116:16-23; Locke Dep. 78:5 to 79:14). Local 2 representatives state good relationships, skills, attitude, behavior, and reputation are the most important characteristics for job security with Local 2 contractors. (Eslinger Dep. 252:13 to 253:20; Lind Dep. 104:4-12).
The OWL is available at the Local 2 hall for contractors to review and, to the extent aware of the members' ethnicity, determine which minority members are available for work. (Porter Dep. 205:13-23). Some Local 2 contractors have specifically requested minority members. (Howerton Dep. 86:1-23). Local 2 also maintains the OWL on its website which members and Local 2 contractors can access. (Phelps Dep. 38:1-24; Doc. # 69, p.47). At least one Local 2 contractor states his company has reviewed the OWL to determine whether minority members are available for work. (Phelps Dep. 35:23 to 36:7).
Contractors also state they view the OWL for other reasons, including to determine whether a member who has worked for them is available, to see whether a member with particular skills is available, and to see whether someone they have laid off has found other work. (Adams Dep. 54:3 to 55:12; 62:15 to 66:12; Phelps Dep. 38:17-19; Tanner Dep. 30:2-7). Local 2 contends its referral procedures allow Local 2 sheet metal workers to compete with one another for jobs to some extent and thus encourages skills development and proficiency. (Locke Dep. 186:13 to 187:25; Lind Dep. 134:16 to 135:22; Flach Dep. 227:17-21).
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