Howard v. International Molders and Allied Workers Union, AFL-CIO-CLC

• Decision Date: 14 January 1986
• Docket Number: D,No. 85-7008,AFL-CIO-CL,L,85-7008
• Citation: 779 F.2d 1546
• Parties: 39 Fair Empl.Prac.Cas. 1413, 39 Empl. Prac. Dec. P 35,965 James HOWARD and Robert Bates, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, Cross-Appellees, Willie L. McCoy, et al., Intervening Plaintiffs-Appellants, Cross-Appellees, v. INTERNATIONAL MOLDERS AND ALLIED WORKERS UNION,ocal # 100 of the International Molders and Allied Workers Union,efendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1546

779 F.2d 1546

39 Fair Empl.Prac.Cas. 1413,

39 Empl. Prac. Dec. P 35,965

James HOWARD and Robert Bates, individually and on behalf of all others similarly situated Plaintiffs-Appellants, Cross-Appellees Willie L. McCoy, et al., Intervening Plaintiffs-Appellants Cross-Appellees, v. INTERNATIONAL MOLDERS AND ALLIED WORKERS UNION, AFL-CIO-CLC Local # 100 of the International Molders and Allied Workers Union, AFL-CIO-CLC, Defendants-Appellees, Cross-Appellants.

No. 85-7008.

United States Court of Appeals, Eleventh Circuit.

Jan. 14, 1986.

O. William Adams, III, Birmingham, Ala., for appellants.

George C. Longshore, Birmingham, Ala., Thomas F. Phalen, Jr., Cincinnati, Ohio, for defendants-appellees, cross-appellants.

Appeals from the United States District Court for the Northern District of Alabama.

Before GODBOLD, Chief Judge, JOHNSON, Circuit Judge, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

This is an appeal from a judgment dismissing a complaint filed by a class of employees against the Clow Corporation and defendant Union on charges of racial discrimination in employment practices.

I. STATEMENT OF THE CASE

Early in the proceedings, a consent decree was entered between the Clow Corporation, the employer, and the class of plaintiffs. However, the suit continued as against the labor organization under the provisions of 42 U.S.C. Sec. 2000e-2(c)(3). ¹ Plaintiffs also proceeded under the provisions of 42 U.S.C. Sec. 1981.

At the trial, plaintiffs laid great stress upon the discriminatory effect on blacks of the departmental system under which most blacks were employed in the lowest paying department and under which there was only departmental seniority for promotion. They also stressed the fact that as to certain jobs, an unvalidated test was required by the employer and that the labor organization failed adequately to oppose the unvalidated testing requirement.

The trial court held that the seniority policy of the employer was carried out in good faith and held that plaintiffs had failed to establish any discriminatory practice thereabouts. With respect to the unvalidated testing, however, the court adopted what it called the "Terrell " standard as measuring the duty of the Union under its obligation of fair representation. This standard was established in Terrell v. United States Pipe & Foundry Co., 644 F.2d 1112, 1120 (5th Cir., Unit B, 1981):

We begin with established principles of law, Section 703(c)(3) of Title VII makes it unlawful for a union to "cause or attempt to cause an employer to discriminate." ... 42 U.S.C. Sec. 2000e-2(c)(3). We have recognized that under the Act: [l]abor organizations, as well as employers, have an affirmative duty to take corrective steps to prevent the perpetuation of past discrimination." Myers v. Gilman Paper Co., 544 F.2d 837, 850 (5th Cir.), modified in other respects on rehearing, 556 F.2d 758, cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977). (citation omitted).

Recognizing the effect of the Terrell decision, the trial court made the following findings of fact and conclusions of law:

Plaintiffs allege that defendants violated 42 U.S.C. Sec. 2000e-2(e)(3) ad 42 U.S.C. Sec. 1981 by acquiescing in the administration by the employer of facially neutral tests that had an adverse impact on plaintiffs. To prevail on this claim, plaintiffs must establish first that the mechanical comprehension test used by the company violated Title VII, and second, that defendants failed to comply with the Terrell "every reasonable step" standard. ¹⁷

17. Although the Fifth Circuit in Terrell and Walker applied this standard to situations involving seniority systems, this court assumes that the Fifth Circuit would always apply this standard to a labor organization's conduct that is challenged under 42 U.S.C. Sec. 2000e-2(c)(3).

The Supreme Court ruled in Griggs v. Duke Power Co., 401 U.S. 424, 431 [91 S.Ct. 849, 853, 28 L.Ed.2d 158] (1971), that Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited." A plaintiff makes out a prima facie case of discrimination by showing "that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants." Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 [95 S.Ct. 2362, 2375, 45 L.Ed.2d 280] (1975). The employer then has the burden to establish that the test is job related. Id.

Clow Corporation used the mechanical comprehension test as a condition to promotion from 1965 (the effective date of Title VII) until 1977 (when this suit was filed). During those years, 56% (103 of 184) of the white employees who took the test passed it; only 12.5% (10 of 80) of the black employees who took the test passed it. The court concludes that plaintiffs established their prima facie case of disparate impact discrimination. Defendants did not rebut this presumption with any proof that the test was job related. Accordingly, the court concludes that plaintiffs established that the company's mechanical comprehension test, although neutral in form, had a discriminatory impact and violated Title VII.

Next the court must determine whether the union defendants satisfied the Terrell standard. Union representative Robert Hollman criticized the company's use of the test on January 19, 1970. White members of the union committee demanded that the company cease using the tests on August 11, 1975. The court has pointed out that the union members never demanded that the union attempt to persuade the company to stop using the tests through the grievance procedure in 1970. There was no evidence that the union committee ever demanded during the 1972, 1974, or 1977 negotiations that the company cease using the tests. Defendants did not establish that the company would have refused to stop using the tests. ¹⁸ The company's abandonment of the tests when this suit was filed illustrates that the company would have considered agreeing to halt the use of the tests. Accordingly, the court concludes that the local union violated 42 U.S.C. Sec. 2000e-2(c)(3) because it did not satisfy the Terrell standard

18. This situation is to be compared to the seniority system situation: there this court found that "the company had no intention of making any further concessions regarding the seniority system." See p. 36 supra.

of taking every reasonable step to ensure that the employer complies with Title VII. Additionally, the court concludes that the local union violated 42 U.S.C. Sec. 1981 because its conduct evidenced an intent to discriminate. ¹⁹

19. Labor organizations violate 42 U.S.C. Sec. 2000e-2(c)(3) if they "cause or attempt to cause an employer to discriminate...." (emphasis added). The court is of the opinion that this language indicates that conduct which violates the section (2000e-2(c)(3)) constitutes intentional discrimination.

An international union can be held liable for a discriminatory practice if it has a "sufficient connection" with the discriminatory practice. Myers v. Gilman Paper Corp., 544 F.2d 837, 851 (5th Cir.), cert. dismissed, 434 U.S. 801 [98 S.Ct. 28, 54 L.Ed.2d 59] (1977). The Fifth Circuit in Myers adopted the holding of the Fourth Circuit in Patterson v. American Tobacco Co., 535 F.2d 257, 270-71 (4th Cir.), cert. denied, 429 U.S. 920 [97 S.Ct. 314, 50 L.Ed.2d 286] (1976): "The Fourth Circuit recently held that a sufficient connection exists where, as here, the international union provided 'an advisor' to the local in its negotiations and the international approved the resultant collective bargaining agreement." Myers v. Gilman Paper Corp., 544 F.2d at 852. The court has found above that Hildridge Dockery, the International Molders representative for the Local Union, worked closely with the bargaining committee for an advisor from 1972 until 1980. The court concludes that Dockery's activities provide a sufficient connection of the International to the Local Union's violation of Title VII and Sec. 1981. Accordingly, pursuant to Myers v. Gilman Paper Corp., the court concludes that the International also violated 42 U.S.C. Sec. 2000e-2)c)(3) and 42 U.S.C. Sec. 1981 for its conduct regarding the company's mechanical comprehension test.

Thereafter, on the 21st day of June, 1983, the court entered the following order:

In conformity with the findings of fact and conclusions of law entered herein on June 1, 1983, the court finds in favor of the plaintiffs and against the defendants for their violation of 42 U.S.C. Sec. 2000e-2-(c)(3) and 42 U.S.C. Sec. 1981, for its conduct regarding the use of the mechanical comprehension test. The court denies all other claims made by the plaintiffs.

Within forty-five (45) days from the date of this order is entered, the parties will attempt to arrive at an amount of monetary remedy for the plaintiffs to compensate them for the defendants' discriminatory conduct with respect to the mechanical comprehension test. If the parties are unable to arrive, in good faith, at a monetary remedy, then the court will enter such further orders or decrees as are necessary to enable the parties to produce for the court their own procedures and formulas for the calculation of the monetary remedy due the plaintiffs. The court notes that the parties may reach such an accord as to amounts, etc., while reserving the right to appeal or seek other post-trial relief. ¹

1. The court has considered the objection of defendants to plaintiffs' proposed judgment and considers them most appropriate for post-judgment consideration.

The court then submitted to the magistrate acting as special master, the task of determining the damages that would be due to the class based upon the court's...