Golden v. Local 55 of Intern. Ass'n of Firefighters

• Decision Date: 02 December 1980
• Docket Number: No. 78-3267,78-3267
• Citation: 633 F.2d 817
• Parties: 24 Fair Empl.Prac.Cas. 1340, 24 Empl. Prac. Dec. P 31,400 Samuel GOLDEN, Milo Gaskin, Manuel Navarro, Ernest Robinson and the Oakland Black Firefighters Association, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. LOCAL 55 OF THE INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, its membership, and George Rosco, Richard Cecil, Jack Doan and Tom Kenton, as individuals and as officers of Local 55 of the International Association of Firefighters, Hanley Ornsby, as an individual and as a former officer of Local 55, and the International Association of Firefighters, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 817

633 F.2d 817

24 Fair Empl.Prac.Cas. 1340,

24 Empl. Prac. Dec. P 31,400

Samuel GOLDEN, Milo Gaskin, Manuel Navarro, Ernest Robinson and the Oakland Black Firefighters Association individually and on behalf of all others similarly situated Plaintiffs-Appellants, v. LOCAL 55 OF THE INTERNATIONAL ASSOCIATION OF FIREFIGHTERS its membership, and George Rosco, Richard Cecil, Jack Doan and Tom Kenton, as individuals and as officers of Local 55 of the International Association of Firefighters, Hanley Ornsby, as an individual and as a former officer of Local 55, and the International Association of Firefighters Defendants-Appellees.

No. 78-3267.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 9, 1980.

Decided Dec. 2, 1980.

Edward H. Lyman, Berkeley, Cal., and Ruby Udell, Stanford, Cal., Ballachey, Meade, Duane & Lyman, Berkeley, Cal., for plaintiffs-appellants.

Duane W. Reno, Davis, Cowell & Bowe, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before ELY and GOODWIN, Circuit Judges, and GRANT, ^* District Judge.

GOODWIN, Circuit Judge.

Plaintiffs, who represent current minority male members of the Oakland Fire Department, appeal a judgment entered after a nonjury trial in favor of their union, Local 55 of the International Association of Firefighters, and named union officials (hereinafter "the union"). The union's challenged conduct is alleged to be in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1981, and of the union's duty of fair representation under various state and federal statutes. Because the factual findings by the district court are not clearly erroneous, we affirm.

The dispute centers on the legality and significance of several actions and omissions of the union. The same facts underlie the firefighters' Title VII, § 1981, and "unfair representation" claims.

By way of background, the union represents members of the Oakland Fire Department for collective bargaining purposes. In 1973, two of the plaintiffs in this case founded the Oakland Black Firefighters Association because they felt the union was not taking a "positive position" on affirmative action.

In late 1973, Glen Hull, a black probationary firefighter, was discharged. Hull and the Black Firefighters Association brought suit in 1974, arguing that Hull had been fired because of racial discrimination (Hull v. Cason ). ¹ The union voted to hire an attorney to represent the defendant Fire Chief. It spent $30,000 on the defense costs; the money was collected from union dues. The state trial court found that Hull had not been fired for discriminatory reasons, but did find that a number of the fire department's employment practices discriminated against minorities. Hull did not appeal the part of the decision that related to him. The state appellate court reversed the remedial measures ordered by the trial court.

In February or March of 1975, the Oakland Civil Service Board recommended a change in the weights assigned to the various portions of the promotion examination. The Civil Service Board recommended reducing the weights of the written and seniority portions of the examination so as to help achieve the goals of affirmative action. The union protested the change; the City Manager decided not to adopt the recommendations of the Civil Service Board.

Also in February of 1975, an arbitration award between the union and the City of Oakland required a certain minimum staffing of fire engines. The union did not go to court to enforce the award to hire more firefighters, arguably because its officers and counsel thought the Hull appeal (which concerned the list of eligible candidates) had stayed the arbitrator's award.

The Oakland Civil Service Board proceeded to schedule promotional examinations for April 29, 1975. The president of the union, one of the defendants here, protested the April 29, 1975, date; thereafter the examination was advanced three weeks to April 8, 1975. As a result of advancing the date, twelve firemen who would have been eligible on April 29 were not yet eligible to take the April 8 examination. However, the Civil Service Board decided to allow those twelve to take the examination and waived any time in grade deficits. Three firemen, including plaintiff Navarro, passed and were placed on the civil service promotion eligibility list.

In January of 1976, plaintiff Navarro reached the number one spot on the promotion list. The union and one of its officers petitioned for a writ of mandamus to set aside the new promotion list, arguing that Navarro and the two others had been illegally placed on the eligibility list. This case became known as Palmer v. City of Oakland, 86 Cal.App.3d 39, 150 Cal.Rptr. 41 (1978). The state court found that the Palmer plaintiffs had been in privity with the Hull defendants and that they were bound by the Hull defendants' stipulation that Navarro correctly had been placed on the eligibility list.

The district court made several rulings which plaintiffs contest. First, the court limited the class to current members of the Oakland Fire Department. The court next found that it had no jurisdiction because plaintiffs had not exhausted their internal union remedies. Third, the court found that the union had not breached its duty of fair representation. Fourth, the court found that the union had not violated Title VII. Accordingly, the union had judgment in its favor on all counts.

The standard for reviewing rulings three and four is whether the findings are consistent with Fed.R.Civ.P. 52(a). As discussed below, because we find that the district court's findings three and four were not clearly erroneous, the other rulings, if in error, are harmless.

The Title VII Complaint

The plaintiffs' first amended complaint, second claim for relief, alleges that the union violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. by:

1. Hiring an attorney to defend Oakland's discriminatory practices in the Hull case;

2. Failing to fairly represent, adjust grievances, or process administrative complaints of minority members;

3. Preventing the hiring and promotion of minority firefighters by failing to enforce the arbitration award; and

4. Acquiescing in racially discriminating practices of recruitment, hiring, testing and promotion.

There are three theories under which one can bring a Title VII claim disparate treatment, disparate impact, and present effects of past discrimination. Although plaintiffs' brief does not clearly articulate their theory, they seem to be relying on a disparate impact theory. We have determined, however, that the plaintiffs' complaint raises both disparate impact and disparate treatment claims.

The methods of proving these Title VII theories differ. The disparate impact theory does not require proof of discriminatory intent. Instead, it focuses on the consequences of the employment practice. Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971), B. Schlei & P. Grossman, Employment Discrimination Law, at 1158 (1976). Plaintiffs' claim that the union encouraged racially discriminating practices in promotion examinations is a disparate-impact claim. Thus, if they had been able to show that the test had a disparate effect on minorities, they did not need to prove discriminatory intent.

In contrast, the disparate treatment theory of Title VII requires proof of intent. The "ultimate focus of the inquiry, and thus the proof, is whether or not the decision or action in question was 'racially premised.' In other words, motivation and intent are the ultimate issue-whether 'the presumptively valid reasons for (the) rejection were in fact a coverup for a racially discriminatory decision'...." B. Schlei & P. Grossman, Employment Discrimination Law, at 1153-54 (1976), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973); see Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed.2d 396 (1976).

The other acts which the plaintiffs cite as exemplary of the Title VII and unfair representation claims fall within the disparate treatment category. Thus, in reviewing whether there was substantial evidence to support the court's finding of no Title VII violation, we look at different threshold facts. We find substantial evidence to support the conclusion of "no Title VII violation" under both theories.

Hiring the Defense Attorney in Hull.

Plaintiffs argue that the union's payment of defense costs in Hull, out of dues and assessments collected in part from the Hull plaintiffs, was discriminatory. Plaintiffs argue that "to fairly represent all its members, (the union) should not have retained counsel for Chief Menietti in Hull or paid for legal counsel in Palmer without providing similar sums to the plaintiffs in Hull and to Navarro in Palmer."

This conclusion is not evidence. A union may take action for union purposes even though the effect is to favor one group against another. See Humphrey v. Moore, 375 U.S. 335, 349, 84 S.Ct. 363, 371, 11 L.Ed.2d 370 (1964). In this case, there was substantial evidence from which the district court could conclude that the union's reasons for contributing to the defense and for siding with the chief against the Hull plaintiffs were valid and not a coverup for a racially discriminatory decision. (Defendant Doan testified that the union believed Hull's charges were unfounded and threatened the integrity of the fire department's training program. He said that the competency of each firefighter is of concern to the union because all are dependent on each other in hazardous situations. Defendant Rosco testified that the union membership voted to provide the legal defense in Hull only after Rosco assured it that other minorities in Hull's training class had...