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Porter v. Pipefitters Association Local Union 597

United States District Court, N.D. Illinois, Eastern Division

September 20, 2016

DUANE PORTER, KENNETH BLACK, RONALD BOUIE, RICKY BROWN, SAMUEL CLARK, FRANK CRADDIETH, DONALD GAYLES, and STEVEN WILSON, on their own behalf and on behalf of a class of all other who are similarly situated, Plaintiffs,
v.
PIPEFITTERS ASSOCIATION LOCAL UNION 597, Defendant.

          OPINION AND ORDER

          SARA L. ELLIS, United States District Judge.

         Plaintiffs Duane Porter, Kenneth Black, Ronald Bouie, Ricky Brown, Samuel Clark, Frank Craddieth, Donald Gayles, and Steven Wilson, African American journeyman pipefitters who belonged to Defendant Pipefitters Association Local Union 597 (“Local 597”), claim that they and other African American pipefitters worked comparatively fewer hours than their non-African American counterparts due to Local 597's inequitable job assignment systems. They filed this suit against Local 597, alleging intentional and disparate impact discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, and breach of Local 597's duty of fair representation under the Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 158(b), for failing to represent the interests of all its members.[1] Plaintiffs seek to certify the following class under Federal Rule of Civil Procedure 23(b)(2) and (b)(3), or, alternatively, (c)(4): “All African American persons who were members of Local 597 at any time from November 14, 2003 to the present date.” Doc. 76 at 2. The Court finds Plaintiffs have met the requirements for certification of a Rule 23(b)(3) class but reserves ruling on the request for certification of a Rule 23(b)(2) class pending clarification of the named Plaintiffs' current union membership status or the addition of a current union member as a class representative.

         BACKGROUND

         Local 597 is a labor organization and the exclusive bargaining agent for pipefitters working within its territorial jurisdiction, as defined in Local 597's agreement with the Mechanical Contractors Association (“MCA”).[2] The evolution of Local 597's job assignment system, stemming back to a prior discrimination lawsuit, frames Plaintiffs' class certification contentions.

         I. The Daniels Litigation

         In 1984, Frank Daniels, an African American pipefitter, filed a federal suit against Local 597, claiming that Local 597's job referral system was racially discriminatory in that it excluded African American pipefitters from jobs. Although in theory Local 597 operated a referral service through which jobs were assigned on a first-come, first-serve basis to union members waiting at the information hall and then randomly to other members, the reality differed. Daniels v. Pipefitters' Ass'n Local Union No. 597 (Daniels II), 945 F.2d 906, 911 (7th Cir. 1991). In practice, favored white union members received assignments outside of the referral system- either directly or from Local 597 business agents-through an informal “telefitter” system. Id.; Doc. 97-1 at 11. In the telefitter system, job opportunities-typically definite and long-term- were distributed by telephone, word of mouth, and other informal mechanisms, bypassing the referral system at the information hall. Doc. 97-1 at 11, 27. The telefitter system largely excluded African Americans, denying them access to the majority of jobs. Id. An expert compared the percentages of African American and white pipefitters referred for jobs and concluded that African American members of Local 597 received fewer job referrals than they should relative to their population in the referral system, concluding that the statistical probability of such a disparity occurring randomly was one in a trillion in 1981 and one in ten thousand in 1983 and 1984. Daniels II, 945 F.2d at 911.

         A jury heard Daniels' case and returned a verdict in his favor on his § 1981 and fair representation claims. The district court also entered judgment for Daniels on his Title VII claim, finding injunctive relief appropriate to “ensure that the hall is not operated in a racially, discriminatory manner in the future.” Daniels v. Pipefitters' Ass'n, Local Union 597 (Daniels I), No. 84 C 5224, 1990 WL 139244, at *5 (N.D. Ill. Sept. 14, 1990). The district court appointed a special master “to consider the appropriate system of referring members of Local 597 to available jobs and the implementation of that system.” Id. The Seventh Circuit affirmed. Daniels II, 945 F.2d 906.

         The special master held hearings to resolve the issue of injunctive relief and issued his report on June 24, 1993. He recommended that Local 597 establish an exclusive hiring hall with mandatory participation in referrals so that Local 597 had no control over hiring. Doc. 97-1 at 53-54. The hiring hall would assign jobs from an out of work list on a first-on, first-off basis. Id. at 54. The special master also recommended appointing a hiring hall monitor and having the court retain jurisdiction over the case to ensure compliance with the order, with the special master continuing to serve for an initial term of one year subject to annual extensions “until such time as the Court determines that in the absence of the Special Master, it is reasonably certain there will not be re-established a pattern and practice of resisting full and equal employment opportunities for blacks.” Id. at 59. The court terminated the consent decree effective April 22, 1996.

         II. Hiring Hall

         In compliance with the Daniels consent decree and special master's report, Local 597 adopted the Hiring Hall policy in 1994. Under the Hiring Hall policy, Local 597 used an out of work list to refer members to contractors in the order in which the members appeared on the list, with those out of work the longest and having the necessary skills and qualifications requested by the contractor referred first. To register for the out of work list, members completed a registration form, which included information about the individual's skills, certifications, geographical preferences or restrictions, and contact information. Contractors filled out employer referral requests, specifying the experience, training, skills, and other required qualifications for each available job. Local 597 entered job requests into the computer database in the order received, referring the highest person on the out of work list who matched the job requirements for the particular job.

         Pursuant to the written Hiring Hall rules of operation, contractors had the “sole and exclusive responsibility for hiring” and the “sole and exclusive right to accept or reject for employment persons referred for employment provided the [contractor] shall not illegally discriminate.” Doc. 104-7 at 6. But this did not excuse them from hiring through the system, unless they met one of three exceptions allowing them to directly hire a pipefitter without regard to that pipefitter's position on the out of work list. Those exceptions were: (1) a recall, i.e., the direct hire of a pipefitter who had worked for the contractor within the past year; (2) an emergency hire, i.e., the direct hire of a pipefitter for an emergency job; and (3) a supervisor hire, i.e. the direct hire of a pipefitter for a supervisory position. These exceptions eventually became the norm so that most jobs were filled not through the referral process but directly by contractors. See Doc. 97-6 at 5 (MCA's counsel testifying that, by 2004, he learned that less than 20% of jobs were being filled from the out of work list).

         III. Referral Hall

         In 2004 or 2005, Local 597 approached MCA representatives to discuss changing the Hiring Hall system. These discussions led to the creation of the Referral Hall system, which became effective on January 1, 2006. The change did not require Local 597 membership's approval. Instead, Local 597 notified members of the change by mailing postcards, dated December 21, 2005, stating that, as of January 1, 2006, members could find employment on their own as well as through contractor referrals.

         Under the Referral Hall system, Local 597 members had the option of either finding employment directly with contractors or through the out of work list. The out of work list continued to operate in the same way as under the Hiring Hall system. The Referral Hall system required contractors who had 4 or more new hires in a calendar quarter to make 25% of those new hires from the out of work list. They were free, however, to hire the remaining 75% of workers directly. The 25%/75% split was intended to reflect the percentage of hires made from the out of work list under the Hiring Hall system and those made under the exceptions. But even Local 597 admitted that the 25% requirement imposed by the Referral Hall system was “purely theoretical” and actually “much lower than 25% of all jobs worked by Local 597 members and collective bargaining unit employees” because of several exceptions. Doc. 97-8 at 4 n.1. Specifically, (1) apprentices and probationary service technicians are not counted as new hires; (2) journeymen pipefitters who work for a contractor for the preceding 2 calendar months are not counted as new hires; (3) the requirement only applies to employers with at least 4 new hires in any calendar quarter; and (4) if the employer posts the request but is unable to fill the position from the Referral Hall within a reasonable amount of time, any employee hired to fill the position is not considered a new hire. As with the Hiring Hall system, contractors remain solely and exclusively responsible for the hiring of pipefitters referred to them from the out of work list. Contractors also determine which jobs they source from the out of work list and which jobs they hire for directly.

         Although Local 597 has established penalties to punish contractor non-compliance with the Referral Hall system, a random sample conducted in late 2006 found that 9% of contractors were not in compliance. Local 597's Financial Secretary and Treasurer, Curtis Cade, did not recall sending any warning letters or imposing any penalties to contractors in violation of the policy over that same time period, describing the time as a “feeling-out period.” Doc. 102-6 at 26. The parties have provided the Court with no further information about compliance or punishment.

         IV. The Named Plaintiffs

         The named Plaintiffs all appear to be former African American journeyman pipefitters who belonged to Local 597 during their years of active service.[3] Porter began as an apprentice pipefitter with Local 597 in 1996 but stopped paying his union dues in 2012. Despite having worked for 15 years, he only accumulated 3.6 years of pension credits as of 2010.[4] Black belonged to Local 597 from 1977 to June 2014. He was ineligible for referral at various times during his career for non-payment of dues, missed calls, and voluntary holds. Black's out of work profile indicated he would work beyond Local 597's geographic jurisdiction and on jobs of less than 11 days.

         Bouie belonged to Local 597 from 1986 to 2012. He suffered two back injuries, one of which kept him from working from 2004 to 2008 and the other from 2010 until he retired. Bouie failed to pay his union dues at various times during his career, in his words, because he “wasn't working” or “was so far in debt.” Doc. 98-3 at 30. Bouie's out of work profile indicated a willingness to work jobs of less than 11 days. Bouie estimated that his white peers had approximately three times the pension credits than he had. Brown joined Local 597 in 1998 but left in 2008, taking a full time job with the Veterans Administration after waiting too long for jobs as a union member and being unemployed. Brown testified that he lost his health care coverage in 2006 or 2007 because he had not worked enough hours to keep it.[5]

         Clark has lived in Texas since 1998 but still maintained his membership and took jobs with Local 597. He retired from Local 597 in 2012. Craddieth joined Local 597 in 1974, retiring in 2012. He was suspended from the out of work list for non-payment of dues at various points in his career. Craddieth limited the types of jobs available to him by specifying in his out of work profile that he would not accept work at a nuclear power plant.

         Gayles belonged to Local 597 from 1972 to 1992 and 1999 to 2007. He stopped paying union dues in 2004 and retired in 2007 due to a medical condition. Gayles testified that, from 1978 to 2006, he observed certain white pipefitters moving from one long-term job to another without long periods of unemployment, while African American pipefitters received short-term or temporary jobs with long stints of unemployment between them. Wilson joined Local 597 in 1996 and retired in 2014. Wilson's out of work profile indicated he was willing to work in nuclear power facilities and travel beyond Local 597's geographic jurisdiction. In 2011, he lost a job as a foreman despite receiving positive performance reviews, but returned to work with the same contractor as a journeyman. Wilson considered the telefitter system to continue in operation despite the institution of the Hiring Hall and Referral Hall systems, ...


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