Rule v. International Ass'n of Bridge, Structural and Ornamental Ironworkers, Local Union No. 396

Decision Date21 February 1978
Docket NumberNo. 76-1945,76-1945
Citation568 F.2d 558
Parties16 Fair Empl.Prac.Cas. 35, 15 Empl. Prac. Dec. P 7943, 17 Empl. Prac. Dec. P 8409, 2 Fed. R. Evid. Serv. 823 Ronald RULE, Lonnie Vanderson, George Coe, Willie Nichols, Johnnie I. Brown, Hiawatha Davis and Willie West, Appellants, v. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRONWORKERS, LOCAL UNION NO. 396, and Ironworkers Joint Apprenticeship Committee of St. Louis, Missouri, and Phillip Crowley, Clyde Quick, Hugh Kempka, Clarence McDonald, J. J. Hunt, Sr., J. J. Hunt, Jr., Robert Boulware, J. W. Hardesty, Charles W. Ross, William E. Besl, Ralph Cornell, Fred L. Maddison, Raymond J. Robertson, James J. Willis, Calvin L. Walker, Joe Rowles, Guilford D. White, and Frederick Herzog, as Trustees of the National Ironworkers and Employer Training Program, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

O. Peter Sherwood, New York City, for appellant; Jack Greenberg, New York City, Louis Gilden, St. Louis, Mo., on brief.

Barry J. Levine, St. Louis, Mo., for appellee; Lewis E. Mallott, St. Louis, Mo., on brief.

Before VAN OOSTERHOUT, Senior Circuit Judge, and STEPHENSON and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

Ronald Rule, Lonnie Vanderson, George Coe, Willie Nichols, Johnnie Brown, Hiawatha Davis, and Willie West ("plaintiffs") appeal from the District Court's order denying their claims of racial discrimination in employment. We affirm in part, vacate in part, and remand the case for further proceedings.

Ronald Rule opened the litigation by filing a complaint on March 14, 1973. Two amended complaints were subsequently filed. The second amended complaint contained three counts and named as defendants Local 396 of the International Association of Bridge, Structural and Ornamental Ironworkers (the "Union"), the Ironworkers Joint Apprenticeship Committee of St. Louis, Missouri ("JAC"), and eighteen individuals who were trustees of the National Ironworkers and Employer Training Program. The individual trustees were subsequently dismissed as parties defendant and National Ironworkers and Employer Training Program ("MTP") was substituted therefor.

As amended, Count I of the complaint alleged that defendants had discriminated against Rule on account of his race, in violation of 42 U.S.C. §§ 1981, 2000e et seq., and sought injunctive relief and monetary damages. Count II restated these claims as a class action brought on behalf of "Negro persons who have been members, are members, or might be members of said defendant Union, JAC, and Training Program, and Negro persons who are applicants, have been applicants, or might be applicants for membership in said defendant Union, JAC, and Training Program." Count III alleged that the Union had violated a conciliation agreement entered into by the Union and the Missouri Commission on Human Rights ("MCHR") pursuant to a complaint filed by Ronald Rule.

On April 19, 1974, the District Court held a hearing on the class action question. On July 18, 1974, the District Court certified a class composed of: "Negro persons who have been members of said defendant Union and J.A.C., and Negro persons who are applicants or have been applicants for membership in said defendant Union or J.A.C." The order further directed that notices of the pendency of the suit be sent to class members and to black members of, and applicants for, MTP. The notices contained the following "opt-out" provision:

Any judgment in the action whether or not favorable to the members of the class will include all members who do not request exclusion or who do not return the notice, and will finally adjudicate the rights, if any, of all class members who have not requested exclusion.

Approximately 460 notices were mailed. Of these 460, 79 were returned undelivered, 306 were delivered but not returned, and 75 were delivered and returned. Of these 75, 50 prospective class members requested exclusion, 17 requested inclusion, and 8 were either unsigned or improperly filled out.

On December 20, 1974, the District Court entered an order decertifying the class. The District Court said, "(T)he number (of class members who returned notices) indicating a desire to be included is so small in relation to the entire possible class that the request to make this a class action is denied." The decertification order allowed plaintiff Rule to contact those persons who indicated a desire to be included in the class action and join them as parties plaintiff. On January 24, 1975, Vanderson, Coe, Nichols, Brown, Davis, and West were joined as plaintiffs.

The case was tried on April 14-16, 1975. On October 6, 1976, the District Court rendered its opinion and judgment in favor of defendants. Rule v. International Association of Bridge, Structural and Ornamental Ironworkers, Local Union No. 396, 423 F.Supp. 373 (E.D.Mo.1976). The court found "no evidence" to support plaintiffs' claim that defendants had discriminated against them because of their race. Id. at 379, 380. In addition, the court held that plaintiffs lacked standing to pursue the claimed breach of the conciliation agreement entered into by the Union and MCHR. Id. at 381.

Plaintiffs timely appealed and alleged that the District Court erred by: (1) decertifying the class action; (2) denying plaintiffs' individual claims of racial discrimination; and (3) excluding certain evidence at trial.

Prior to addressing the merits of plaintiffs' arguments, we briefly state the relevant facts regarding the structure of the Union, its training programs, and its history of minority employment.

The Union is the St. Louis, Missouri, affiliate of the International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO and is an affiliate of the Building and Construction Trades Council of St. Louis, Missouri, AFL-CIO. Through various collective bargaining agreements, the Union exercises substantial control of employment in the ironwork trade in the St. Louis, Missouri area. The Union, JAC, and MTP effectively control training opportunities in the trade.

Four categories of ironworkers are permitted to work within the territorial jurisdiction of the Union: journeymen, permitmen, apprentices, and trainees. Journeymen are full-fledged Union members who alone select Union officers and, by their vote, determine Union policy. They receive the highest ironworker wage rate ("journeyman's wages") and have an unrestricted right to solicit work.

Permitmen are not union members, but do earn journeyman's wages. The term "permitmen" refers to the fact that these persons hold service dues receipts, or "permits," which entitle them to work in the trade. Issuance and revocation of permits is controlled by the Union Examining Board, a group comprised of elected Union officials charged with responsibility for determining individual eligibility for Union membership.

Apprentices are unskilled men who have been formally indentured into the traditional ironworker apprenticeship training program. Apprentices are Union members but are subject to a variety of restrictions. Apprentices start at 60 percent of journeyman's wages and receive fractional increases at six-month intervals. The apprenticeship program is administered by JAC, an unincorporated body comprised of five Union members and five representatives of the Associated General Contractors of St. Louis, Missouri.

Trainees are enrolled in MTP, a non-profit corporation established in 1970 to provide training opportunities for minorities and "hard core" unemployed whites who are over the apprenticeable age (usually 30). The great majority of trainees are black. Trainees are not Union members, and were not covered by a collective bargaining agreement until 1973. Trainees, like apprentices, receive a percentage of journeyman's wages.

Employment in the ironwork trade is a complex matter. Many, if not most, experienced journeymen ironworkers obtain the bulk of their employment by direct solicitation of contractors. Some apprentices, trainees, and journeymen apparently do not have contacts with the contractors, and rely on referrals through the Union hall to obtain employment. 1 The contractor determines the number of ironworkers required and can request journeymen, apprentices, or trainees.

Prior to 1964, the ironwork trade in St. Louis was all white. 2 The requirements for Union membership were that the applicant be at least 18 years of age, complete the apprenticeship program or work on service dues receipts within the Union's jurisdiction for six months, pass a demonstration test of skill, and pay an initiation fee. A substantial number of people, including many relatives and friends of ironworkers, chose to work as permitmen. This was one method by which the requisite six months experience could be gained.

The Union apprenticeship program was also a major avenue for friends and relatives of ironworkers to enter the trade. Prior to 1964, apprenticeship applicants were not required to meet educational requirements or take aptitude tests. By 1964 the federal government and area civil rights organizations had begun to bring pressure to bear on unions and contractors to increase minority employment opportunities in the construction industry. Correspondingly, increasing numbers of blacks sought entry into the trade. In 1964 JAC first required a high school diploma or a G.E.D. as a prerequisite for entry into the apprenticeship program. In 1965 JAC introduced a battery of aptitude tests to aid in the selection of apprentices.

MTP was introduced in 1970. It began as a four-year program with the starting wage of 50 percent of journeyman's wages, as opposed to the three-year apprenticeship program's starting wage of 60 percent of journeyman's wages. 3

In 1972 the Union went on strike. One of the purposes of the strike was to insure greater Union control over referrals of...

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