NAACP Labor Committee v. LABORERS'INTERN. UNION, Civ. A. No. 90-0073-H.

• Decision Date: 24 May 1993
• Docket Number: Civ. A. No. 90-0073-H.
• Citation: 902 F. Supp. 688
• Parties: NAACP LABOR COMMITTEE OF FRONT ROYAL, VIRGINIA, et al., Plaintiffs, v. LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

902 F. Supp. 688

NAACP LABOR COMMITTEE OF FRONT ROYAL, VIRGINIA, et al., Plaintiffs, v. LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, et al., Defendants.

Civ. A. No. 90-0073-H.

United States District Court, W.D. Virginia, Harrisonburg Division.

May 24, 1993.

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Steven D. Rosenfield, Charlottesville, VA, Avis E. Buchanan, Joseph M. Sellers, Washington Lawyers' Committee for Civil Rights Under Law, Washington, DC, for plaintiffs.

William W. Sharp, Kates & Sharp, P.C., Front Royal, VA, Glenn M. Hodge, Wharton, Aldhizer & Weaver, Harrisonburg, VA, John McN. Broaddus, Victor J. Van Bourg, Laurence E. Gold, Connerton, Ray & Simon, Washington, DC, Joan L. Casale, Bowles Rice McDavid Graff & Love, Martinsburg, WV, Michael C. Warlow, Wright, Constable & Skeen, Baltimore, MD, Roger A. Ritchie, Roger A. Ritchie and Associate, Harrisonburg, VA, Stanley J. Brown, Ronald L. Castle, Arent, Fox, Kintner, Plotkin & Kahn, Washington, DC, for defendants.

MEMORANDUM OPINION

KISER, Chief Judge.

This case is before the court on defendants' various motions for summary judgment. The court heard argument on the motions on July 22, 1992, and the motions are ripe for resolution. For the reasons stated herein, the court will grant summary judgment in favor of all defendants as to all plaintiffs' claims.

The court is guided in its consideration of the various motions by the familiar summary judgment standard, which was recently restated by the Fourth Circuit:

Summary judgment is appropriate in those cases where there is no genuine dispute as to a material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). We must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986). Summary judgment is appropriate only where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986), such as where the non-moving party has failed to make a sufficient showing on an essential element of the case that the non-moving party has the burden to prove. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

Tuck v. Henkel Corp., 973 F.2d 371, 374 (4th Cir.1992). Abiding this standard, the court will set forth the facts and then turn to the motions.

I.

Each of the individual plaintiffs¹ is black, and each earned or attempted to earn his living as a general laborer in construction work in or around Front Royal, Virginia. The plaintiffs brought suit for racial discrimination in employment against the Laborers' International Union of North America (the "International"), Local 691 of the International (the "Local"), and two employers, Riggs Distler & Company, Inc. ("Riggs") and Union Boiler Company ("Union Boiler"), alleging violations of Title VII, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981. Plaintiffs' principal contention is that from January 1979 to the present, the Local has operated a racially discriminatory referral system.

The Local's territorial jurisdiction covers nine counties in northwestern Virginia. During the relevant time period, the Local operated a hiring hall under the supervision of George Cline, who was the business agent and secretary-treasurer of the Local. Under the hiring hall system, general laborers who wanted work advised the Local of that fact, and the Local referred those general laborers to specific jobs about which the Local had been notified by employers. From 1977 when he assumed office through November 1988, Cline never followed any particular system for referring laborers to available positions. Cline did not take applications, nor did he keep a list of names of laborers seeking work. Furthermore, Cline admitted that the determination of laborers' qualifications was left to his discretion.

From 1977 through November 1989, the main sources of general laborer work in the Front Royal area were the manufacturing plant owned by Avtex, Inc. ("Avtex") and various contractors' construction projects associated with that plant. The Avtex contractors included defendants Riggs and Union Boiler.

In January 1979, a group of black laborers, including some of the plaintiffs, went to the Avtex site looking for work. The laborers met with representatives of the employers, including Riggs and Union Boiler. The laborers were told that the employers only hired through the hiring hall of the Local and were refused jobs. Upon leaving Avtex, the group went directly to the Local office and spoke with Cline. Plaintiff John Flynn, who acted as spokesman for the group, asked for jobs and union membership on the laborers' behalf. Cline refused to allow any of the group to join the Local, and he told them that there was no reason to sign up for the Local because there was no work. At the group's insistence, however, Cline took their names, addresses, and phone numbers in writing. Cline never called any of the group to refer them to jobs.

On March 1, 1979, the so-called NAACP Labor Committee wrote to the U.S. Commission on Civil Rights alleging discrimination under Title VII and under Executive Order 11246. The letter named as respondents the International, the Local, Riggs, and Union Boiler, and it named ten of the plaintiffs (Baltimore, Boller, John Flynn, Folks, Green, Johnson, McAfee, Smith, Spencer, and Turner) among the persons affected by discrimination. On March 19, 1979, the Commission on Civil Rights forwarded the letter to the U.S. Department of Labor's Office of Federal Contract Compliance Programs ("OFCCP"), which received the complaint on March 28, 1979. The OFCCP transferred the complaint to the Equal Employment Opportunity Commission ("EEOC") on November 20, 1980.

In early December 1980, the EEOC formulated a charge and sent a Notice of Charge of Discrimination with Copy of Charge to Riggs and Union Boiler. Riggs and Union Boiler received the charges later that month. The Local also received the charge, and in late December 1980, Cline called the International and spoke about the charge to Slater Hackley, the International's assistant regional manager for the region including the Local.

On February 26, 1981, the charge was amended to correct certain technical deficiencies found by the EEOC, and a Third Party Certification of Charge was prepared. Ten of the plaintiffs (Baltimore, Boller, Jerry and John Flynn, Folks, Green, McAfee, Smith, Travis, and Turner) signed the Third Party Certification, which named as respondents, among others, "George Kline sic, Local 691," "Slator sic Hackley, Laborers sic International," "Riggs Distillers sic," and Union Boiler. The EEOC received the amended and verified charge on March 11, 1981. Thereafter, the EEOC conducted its investigation of the matter.

On March 26, 1987, the EEOC sent the International, the Local, Riggs, and Union Boiler a "Determination" regarding the charge of discrimination. A conciliation agreement signed in October 1988 by the Local and the International provided that the union shall maintain a registration list and refer each applicant for work in the order of each applicant's place on the registration list. The EEOC did not sign the conciliation agreement.

On March 5, 1990, the EEOC issued Notices of Right to Sue to James Kilby of the NAACP Labor Committee on behalf of eleven of the twelve individual plaintiffs and others. The Complaint in this action was filed on April 20, 1990.

In addition to the foregoing, the following relevant facts as to each plaintiff appear from the record. It should be stressed that these are simply facts, as distinguished from allegations or any party's interpretation of the facts.

John L. Baltimore

Baltimore was present at the January 1979 meeting at Avtex. (Pl.Exh. 1B, John Flynn dep. 1/29/91 at 26.)

Baltimore was named in the NAACP Labor Committee's letter of March 1, 1979, and he signed the Third Party Certification of Charge filed with the EEOC on March 11, 1981.

Charles Boller

Boller was present at the January 1979 meeting at Avtex. (Id. at 26.) He went to the Local office sometime in 1979 with John Flynn. (Id. at 138.)

Boller was named in the Labor Committee's letter, and he signed the Third Party Certification of Charge.

Boller retired in 1985. (Def.Exh. 31, Boller dep. 4/19/91 at 42.)

Jerry Flynn

Jerry Flynn was present at the January 1979 meeting at Avtex. (Pl.Exh. 43, McAfee dep. 1/31/91 at 72.) He went to the Local office following the Avtex meeting. (Id. at 74.) Also, Jerry Flynn went to the Local office sometime in 1979, 1981, and 1988 with John Flynn. (Pl.Exh. 1B, John Flynn dep. 1/29/91 at 140.)

Jerry Flynn was not named in the Labor Committee's letter, but he signed the Third Party Certification of Charge.

Additional facts regarding Jerry Flynn's § 1981 claim are set forth in Part VI-B infra.

John Flynn

John Flynn was present at the January 1979 meeting at Avtex (id. at 26.), and he went to the Local office following the Avtex meeting. (Pl.Exh. 43, McAfee dep. 1/31/91 at 74.) John Flynn asked Cline for a referral on three other occasions in January 1980; on those occasions, Cline told Flynn: (1) "I'm not going to hire you. I'm putting my own men to work. Go down in the 74 area." (Pl.Exh. 1A, John Flynn dep. 1/24/91 at 252-53.); (2) "I don't have no work and you'll have to go somewhere else and look for work. Go to 74 ..." (id. at 253-54.); and (3) "Go down to 74 where the rest of the brothers are at." (id. at 254-55.) However, John Flynn contemporaneously stated that "from about March 1979, to October 29, 1981, I had no...