West Virginia Human Rights Commission v. United Transp. Union, Local No. 655

• Citation: 167 W.Va. 282,280 S.E.2d 653
• Decision Date: 02 July 1981
• Docket Number: Nos. 14212,14213,s. 14212
• Court: West Virginia Supreme Court
• Parties: , 61 Fair Empl.Prac.Cas. (BNA) 1700 WEST VIRGINIA HUMAN RIGHTS COMMISSION etc., et al. and Wendell English, et al. v. UNITED TRANSPORTATION UNION, LOCAL NO. 655, et al. WEST VIRGINIA HUMAN RIGHTS COMMISSION, etc. v. UNITED TRANSPORTATION UNION, LOCAL NO. 655, et al.

Page 653

280 S.E.2d 653

167 W.Va. 282, 61 Fair Empl.Prac.Cas. (BNA) 1700

WEST VIRGINIA HUMAN RIGHTS COMMISSION etc., et al. and Wendell English, et al. v. UNITED TRANSPORTATION UNION, LOCAL NO. 655, et al.

WEST VIRGINIA HUMAN RIGHTS COMMISSION, etc. v. UNITED TRANSPORTATION UNION, LOCAL NO. 655, et al.

Nos. 14212, 14213.

Supreme Court of Appeals of West Virginia.

July 2, 1981.

Dissenting Opinion July 27, 1981.

Syllabus by the Court

1. West Virginia Human Rights Commission's findings of fact should be sustained by reviewing courts if they are supported by substantial evidence or are unchallenged by the parties.

2. W.Va.Code, 5-11-9(c), holds unions responsible for discriminatory terms and conditions in collective bargaining agreements.

3. Our human rights act prohibits present practices that perpetuate pre-Act discrimination by freezing employees into inferior positions. W.Va.Code, 5-11-9.

4. W.Va.Code, 5-11-9, does not immunize "bona fide competitive-status based" seniority systems from proscriptions against unlawful practices.

5. Prior discriminatory practices perpetuated by facially neutral seniority systems are continuous violations of the West Virginia Human Rights Act. W.Va.Code, 5-11-1, et seq.

Chauncey H. Browning, Atty. Gen., and Gail Ferguson, Asst. Atty. Gen., Charleston, for W. Va. Human Rights Commission.

Henderson & Redd and Herbert H. Henderson, Huntington, for Wendell English, et al.

Preiser & Wilson, Donald R. Wilson and Fanny L. Haslebacher, Charleston, for appellees.

HARSHBARGER, Chief Justice:

Plaintiffs, seventeen black railway yardmen or former yardmen of the Norfolk and Western Railroad Company, charged their employer and United Transportation Union and its Local No. 655, their union, with racial discrimination. Their seniority system put blacks in inferior positions with lesser benefits.

A complaint was filed with the West Virginia Human Rights Commission on April 3, 1971, and subsequent complaints by other plaintiffs were consolidated for hearing. The railroad settled out, and James B. McIntyre, Hearing Examiner, heard the case against the unions in 1975. McIntyre filed elaborate "Recommended Findings of Fact and Conclusion of Law", in which he recognized violation of the West Virginia Human Rights Act and recommended certain remedies. The Commission decided facts (see Appendix), legal conclusions, and ordered remedies on August 27, 1976, but at defendants' request the Kanawha County Circuit Court vacated that order, relying on International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), and United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). The appeal was submitted for our decision on March 10, 1981.

Did the trial court err, finding that employment policies or practices that freeze employees into a status of prior discrimination but are neutral on their face, are lawful; that Section 703(h) of the federal Civil Rights Act, 42 U.S.C. § 2000e et seq. was imported into the West Virginia Human Rights Act, Code, 5-11-1 et seq.; and that defendants' acts are not continuing violations of our Act?

I.

Our Human Rights Commission is an administrative agency, its practices and procedures subject to judicial review. Code, 29A-1-1, et seq., Administrative Procedures Act; Currey v. West Virginia Human Rights Commission, W.Va., 273 S.E.2d 77 (1980). "As a general rule administrative findings of fact are conclusive upon a reviewing court, and not within the scope of its power to review, if the findings are supported by substantial evidence or are based upon conflicting evidence." City of Huntington v. State Water Commission, 137 W.Va. 786, 73 S.E.2d 833, 839 (1953). The substantial evidence rule for findings of fact applies to review of administrative agency decisions, and neither the parties nor the trial court have disagreed with the Commission's findings of fact. We find them supported by substantial evidence, and sustain them. (See Appendix.)

II.

W.Va.Code, 5-11-1, et seq., The West Virginia Human Rights Act, enacted in 1967,

(D)eclares it "the public policy of the State of West Virginia to provide all of its citizens equal opportunity for employment" and "(e)qual opportunity in the areas of employment ... is hereby declared to be a human right or civil right of all persons without regard to ... (race)", Code, 5-11-2; State Human Rights Commission v. Pauley, W.Va., 212 S.E.2d 77, 79 (1975). The commission is responsible for "eliminat(ing) all discrimination in employment ... by virtue of ... (race)". Code, 5-11-4. Currey v. W.Va. Human Rights Commission, W.Va., 273 S.E.2d 77, 79 (1980).

Unlawful discriminatory practices are defined in Code, 5-11-9:

It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, or except where based upon applicable security regulations established by the United States or the State of West Virginia or its agencies or political subdivisions:

(a) For any employer to discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment if the individual is able and competent to perform the services required even if such individual is blind: Provided, that it shall not be unlawful discriminatory practice for an employer to observe the provisions of any bona fide pension, retirement, group or employee insurance, or welfare benefit plan or system not adopted as a subterfuge to evade the provisions of this subdivision;

(c) For any labor organization because of race, religion, color, national origin, ancestry, sex, age or blindness of any individual to deny full and equal membership rights to any individual or otherwise to discriminate against such individuals with respect to hire, tenure, terms, conditions or privileges of employment or any other matter, directly or indirectly, related to employment.

The Legislature included a mandate that the Act "be liberally construed to accomplish its objectives and purposes", Code, 5-11-5.

Labor union liability is, therefore, defined in Code, 5-11-9(c), supra, forbidding unions from negotiating and signing racially discriminatory collective bargaining agreements having seniority systems that affect "tenure, terms, conditions or privileges of employment, or any other matter, directly or indirectly, related to employment." Seniority plans affect promotions, pay scales, vacations, preferential shifts, days off, retirement, pensions, layoffs, and recalls, all of which are "terms, conditions or privileges of employment." They are conceptually divided into two kinds: "benefit seniority" and "competitive-status seniority." W. Gould, Black Workers in White Unions Job Discrimination in the United States, 67-92 (1977); J. Myers, The Scope and Implementation of Retroactive Competitive-Status Seniority Awards Under Title VII, 9 Seton Hall L.Rev. 655 (1978); Comment, Seniority Systems and the Duty of Fair Representation: Union Liability in the Teamsters Context, 14 Harvard Civil Rights Civil Liberties L.Rev. 711 (1979).

A union becomes responsible for any discrimination against individuals caused by prohibited classifications within a plan, ¹ by

participating with an employer in negotiating and implementing such a seniority system. The United States Supreme Court recognized union liability for discrimination as early as 1944 in Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173, for exclusive bargaining representatives of a craft or class of railway employees under the Railway Labor Act; and in its per curiam reversal in Syres v. Oil Workers International Union, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785 (1955), reh. denied, 350 U.S. 943, 76 S.Ct. 299, 100 [167 W.Va. 287] L.Ed. 822 for National Labor Relations Act exclusive bargaining representatives.

III.

We get guidance about what causes a seniority system to be discriminatory from federal cases; and Title VII cases, Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2 et seq., provide persuasive reasoning.

In 1970, the United States Supreme Court denied certiorari in Local 189, United Papermakers & Paperworkers v. United States, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100. The Fifth Circuit Court of Appeals, 416 F.2d 980 (1969), had found an employer liable under Title VII because its policies renewed or exaggerated effects of past discrimination. Then the Court recognized that seniority systems can violate Title VII by perpetuating discriminatory practices even if there was no proof of intent and the practices were facially neutral. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). See also Franks v. Bowman Trucking Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976).

The Griggs rationale is consistent with the purpose of our State act to eliminate employment discrimination. ² Current practices, regardless of intent, that operate to lock employees into a status fixed by prior discrimination by perpetuating its effects, violate the West Virginia Human Rights Act.

In International Brotherhood of Teamsters v. United States, supra, the Court reiterated its rule that facially neutral seniority systems can be unlawful if they continue past discrimination. But because Title VII contained a special provision immunizing Our Act does not immunize bona fide seniority systems, but only and specifically "bona fide pension, retirement, group or employee insurance, or welfare benefit plan(s)." Code, 5-11-9(a). Our Legislature had access to, and awareness of, the language and exemptions provided in Title VII when it adopted our Act, but although it chose to immunize bona fide "benefit" systems, it did not embrace in its list of exemptions "competitive-status" seniority systems that sustain discrimination. It chose to omit § 703(h) language.

"bona fide" seniority systems, § 703(h), ³ the system was found not illegal.

One kind...