Iron Workers Local No. 67 v. Hart, 54741

• Decision Date: 11 November 1971
• Docket Number: No. 54741,54741
• Citation: 191 N.W.2d 758
• Parties: 4 Fair Empl.Prac.Cas. (BNA) 137, 4 Empl. Prac. Dec. P 7565 IRON WORKERS LOCAL NO. 67 and William Reed, Appellants, v. John HART and Iowa Civil Rights Commission, Appellees.
• Court: Iowa Supreme Court

Page 758

191 N.W.2d 758

4 Fair Empl.Prac.Cas. (BNA) 137, 4 Empl. Prac. Dec. P 7565

IRON WORKERS LOCAL NO. 67 and William Reed, Appellants, v. John HART and Iowa Civil Rights Commission, Appellees.

No. 54741.

Supreme Court of Iowa.

Nov. 11, 1971.

Hawkins, Hedberg & Ward, Des Moines, for appellants.

Richard C. Turner, Atty. Gen., and Roxanne Barton Conlin, Asst. Atty. Gen., for appellees.

REYNOLDSON, Justice.

Iron Workers Local No. 67 and William Reed appeal from district court's decree modifying and affirming an order entered by Iowa Civil Rights Commission in an unfair employment practice proceeding under chapter 105A, Code, 1971. We affirm in part and reverse in part.

This is the first appeal to reach our court calling for an interpretation of chapter 105A (Iowa Civil Rights Act of 1965). For this reason, a detailed treatment of this law, and the facts, is required. Section 105A.3 creates the Iowa Civil Rights Commission (Commission), consisting of seven members appointed by the governor with the advice and consent of the senate. One of the Commission's duties is receiving, investigating and passing upon complaints alleging unfair or discriminatory practices. (§ 105A.5(2)).

Section 105A.7 describes unfair or discriminatory employment practices. Specifically pertinent to this case is § 105A.7(1)(c):

'1. It shall be an unfair or discriminatory practice for any:

c. Employer, employment agency, labor organization, or the employees, agents, or members thereof to directly or indirectly advertise or in any other manner indicate or publicize that individuals of any particular race, creed, color, sex, national origin, or religion are unwelcome, objectionable, not acceptable, or not solicited for employment or membership, unless based upon the nature of the occupation.'

Entitled 'Complaint-hearing', § 105A.9 permits any person (defined in § 105A.2(2) to include, among others, individuals and corporations) claiming to be aggrieved by a discriminatory or unfair practice to file a verified complaint. The complaint must state the name and address of the person or organization alleged to be guilty of the unfair practice and particulars thereof. This precedes registered mail delivery of a copy to the claimed offender and investigation by Commission. If the investigating official finds probable cause for complaint, he must attempt to eliminate the practice through conference, conciliation and persuasion.

If further action is required, notice is given to respondent, who shall answer 'the charges of such complaint' within ten days (§ 105A.9(5)). Notice of time and place of hearing issues.

Of particular importance here is § 105A.9(12):

'12. If, * * * the commission shall find that a respondent has engaged in * * * any discriminatory or unfair practice as defined in this chapter, the commission * * * shall issue and cause to be served upon such respondent an order requiring such respondent to cease and desist from such discriminatory or unfair practice and to take such affirmative action, including, but not limited to, hiring, reinstatement, or upgrading of employees, with or without back pay, the referring of applicants for employment by any respondent employment agency, the admittance or restoration to membership by any respondent labor organization, the admission to or continuation in enrollment in an apprenticeship program, on-the-job training program, the posting of notices, and the making of reports as to the manner of compliance, as in the judgment of the commission shall effectuate the purposes of this chapter.'

Hearing on appeal to the district court from Commission order shall be tried in equity and shall be de novo (§ 105A.10(6)). The court may receive additional testimony and may affirm, modify or reverse Commission's order. Review by this court is provided (§ 105A.10(7)) and is also de novo. Rule 334, Rules of Civil Procedure.

The record reveals The Weitz Company, Inc. (Weitz) is a construction enterprise. It contracted with United States government to construct a new post office facility in Des Moines. In addition to the now customary contractual provisions forbidding minority discrimination, Weitz was required to have an affirmative action plan for employment of minority persons. John W. Webb (Webb) was post office department contract compliance officer charged with enforcing the equal opportunity provisions.

By contract, Iron Workers Local 67 (Local 67) is exclusive bargaining representative for all iron worker employees of Weitz. The latter calls the local hiring hall for iron workers. William Reed (Reed) is business representative of Local 67. In a preconstruction meeting he resisted the efforts of Webb to initiate a plan to utilize the members of the black community on the project. John J. Hart, Jr. (Hart) is construction manager for the Des Moines office of Weitz. He felt he had an agreement with Reed that Joseph D. Roe (Roe), a black laborer employed by Weitz, would be given a work permit on or about April 1, 1969 by Local 67 and put on the job to satisfy federal contractual requirements. While Reed never denied such an arrangement, the work permit was not forthcoming. On April 23, 1969, at Webb's insistence, Hart sent Roe and a Weitz official to Local 67 offices. Hart forwarded a letter along explaining the action was taken at Webb's insistence and apologizing because the matter could not await Reed's reelection in June. Roe testified Reed said he could fill out an application but it wouldn't do any good.

The next day, April 23, 1969, Roe returned to Local 67, was issued a work permit and sent to the post office job. Reed soon appeared on the construction site, and talked with the iron workers. That afternoon, about five Local 67 members reported sick and left the job. The following morning, April 24, 1969, all the iron workers (approximately 11 in number) with exception of the foreman and Roe reported sick. Replacements were requested from Local 67. The same day Reed requested blacks from the Des Moines Apprenticeship Information Center for this job. Of the 11 men who appeared and were issued work permits, ten were black and all were inexperienced. Reed also called a meeting of the 'sick' journeymen that night to persuade them to return to the construction.

On this same day, April 24, 1969, Hart filed complaint with the Commission. In the blank provided for complainant's name there is typed 'Mr. John Hart, Vice President of Weitz Company, Incorporated.' The signature 'John J. Hart' appears on the line 'Signature of Complainant'. Following the printing 'Statement of Charge' is typed,

'William Reed, Business Representative of Local 67 and the Iron Workers Local No. 67 have engaged in unfair labor practices against the Weitz Company and its employees in violation of Chapter 105A of the 1965 Iowa Civil Rights Act, as amended, by indicating through their actions that individuals of the Negro race are unwelcome, objectionable and not acceptable, and are not solicited for employment or membership.'

That afternoon Alvin Hayes, Jr. (Hayes), executive director of Commission, visited Reed at the hiring hall. He testified, 'Mr. Reed stated 'Well, you have to understand that there are some union people that are opposed to having blacks in the union.' He indicated that he himself was not prejudiced but he was powerless to do anything about the union workers who didn't want blacks on the job site.' Hayes later sent a conciliation agreement to the union hall. It provided for recruiting and inviting minority members to become union members. Minority people were to be informed of procedure by which they might become iron workers. It provided for reports of efforts and progress made. This instrument was returned to the Commission. It had been torn in two, taped back together, and signed by Reed and the union president. Hayes testified the agreement had never been complied with by Local 67 and this was not seriously disputed by the union.

The next morning, April 25, the union members, now recovered, and the 11 new permit holders, appeared on the job. The journeymen iron workers and the negro permit holders were all kept on by Weitz. The blacks eventually all quit or were let off because of inexperience or inability except Roe and John M. Branch (Branch). On May 20, 1969 Branch was severely injured when he fell about 25 feet. Branch testified he was hit in some manner, causing him to fall through a hole in the deck. Weitz's safety engineer testified he investigated and was satisfied Branch walked backwards into the hole while watching a load of steel being landed.

At the Commission hearing Roe testified,

'When I left in August, they had a lay-off and said they were keeping the journeymen with books and I was in the lay-off. I was working on a permit. * * * Bill (Reed) sent me word to come out * * *. I didn't go because I just didn't want to go anywhere else and that's why. I didn't want to go anyplace else because there was no one I knew and I would be the only Negro there and I felt I knew the guys on the post office job so I didn't know how the rest of the guys felt about the whole thing so I would rather just leave it where it was so I took the Great Plains Bag job. I make $3.57 an hour at Great Plains Bag and made $5.27 an hour as an iron worker. * * * I felt while I was working for Weitz Company that I had some support, some protection given me by the Weitz Company.'

He further testified he would not like to be an iron worker under the same or similar conditions as those he was employed under by Weitz.

Branch testified with reference to the other iron workers, 'They didn't want you there and going to do everything they could to get rid of you.' Don Law, a negro, was sent to Local 67 in August 1969 through the apprentice training program. Two other blacks accompanied him. He testified they were sent on a roofing job, did not know how to do it, and got no instruction help from the union. They...