would then receive business cards from interested Union pipefitters underneath a window. Id. Malone testified that rather than drawing cards randomly, the business agent routinely looked at the names on the cards before picking the pipefitters who obtained the jobs. Id. at 2. He stated that white pipefitters routinely received referrals and that over a period of nearly two years he was given none.
The Union counters that the deposition testimony of one of its business agents, Francis McCartin, dispels the notion that the job referral system was discriminatory or that the Union revamped the system after Malone left the Union because it was unfair. In response to a question on why the Union changed its procedure, McCarten answered, "so that we could have computation and accuracy in who was there at the time and the fairness of drawing from a drum rather than trying to leave it up to men and any individual to decide who was going to go where." (Defendant's Objections at 3, citing McCartin deposition.) According to the Union, this statement shows that the new system was implemented to document the fairness of the old job referral setup. To reach this conclusion the Union ignores the second part of McCarten's statement which the Magistrate-Judge properly used to highlight the arbitrariness of the old system that allowed the business agents to decide "who was going to go where." The Court finds that a factual issue continues to exist as to whether the Union discriminated against Malone in its job referrals.
The Union next argues that Malone presented no evidence of discrimination in the denial of a work permit. According to Malone, business agent Jimmy Glynn told him in June 1987 that "no nigger that sues Union contractors for injuries and sues the Union for race discrimination will be given a permit to work to pay Union dues. Off the record, it's not because of me. It comes from downtown." (Plaintiff's response to motion for summary judgment at 2-3, citing Malone affidavit.) The Union has failed to rebut the inference from this statement that Malone was denied a Union work permit, that he needed to pay off the Union's reinitiation fees because of his race. The Union has also failed to offer an explanation of why Malone was not given the same opportunity as other Union members to schedule repayment of reinitiation fees while working on a temporary permit.
The Union further contends that Malone presented no evidence that it failed to investigate his complaints. Essentially this point comes down to a swearing contest between the two sides. Malone contends that he made complaints which the Union failed to investigate; the Union contends that Malone never made complaints. A factual issue remains as to which of these two versions is correct.
Finally, the Union argues that summary judgement should be entered on Malone's claim under the Labor Management Relations Act. 29 U.S.C. § 185. The Union did not raise this issue in the motion for summary judgment before the Magistrate-Judge. The Court's purpose in referring the case to the Magistrate-Judge was to streamline this Court's review of the case. The Court will not entertain attempts to bypass that system by raising new issues in the objections to the Magistrate-Judges's Report.
For the foregoing reasons, plaintiff's objections to the Report and Recommendation of Magistrate-Judge Bobrick are sustained in part and overruled in part. The defendant's objections are overruled. With the exception of the modification as to the starting date of plaintiff's Title VII claim, the Court adopts that Report in full.
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