Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Porter v. Pipefitters Association Local Union 597

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

July 25, 2018

DUANE PORTER, KENNETH BLACK, RONALD BOUIE, RICKY BROWN, SAMUEL CLARK, FRANK CRADDIETH, DONALD GAYLES, STEVE WILSON, and JEFFREY PICKETT, on their own behalf and on behalf of a class of all others 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, Steve Wilson, and Jeffrey Pickett, African American journeyman pipefitters who either belong or 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 of its members. In addition, Plaintiffs bring individual retaliation claims. This Court certified Plaintiffs' class action under Federal Rule of Procedure 23(b)(2) and (b)(3), and Local 597 now moves for summary judgment on all of Plaintiffs' claims. Because Plaintiffs have demonstrated a genuine issue of material fact with regard to their intentional discrimination claims, the Court denies Local 597's motion for summary judgment with regard to Plaintiffs' Title VII disparate treatment claims, § 1981 claim, and one of Plaintiffs' LMRA claims (regarding the creation of the Referral Hall policy). However, the Court grants Local 597's motion for summary judgment with regard to Plaintiffs' Title VII disparate impact claims because they cannot establish a prima facie case at trial based on the evidence in the record. The Court additionally grants Local 597's motion for summary judgment on Plaintiffs' retaliation claims and two of their LMRA claims (regarding Local 597's enforcement of contractor compliance with the Referral Hall policy and Local 597's grievance policy). Finally, the Court denies Local 597's motion to strike Exhibit A of Plaintiffs' response to their motion for summary judgment.

         BACKGROUND[1]

         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, forms the basis for Plaintiffs' claims.

         I. The Daniels Litigation

         In 1984, Frank Daniels, an African American pipefitter, filed a federal lawsuit against Local 597, claiming that Local 597's job referral system discriminated against African American pipefitters on the basis of their race by excluding them from jobs. Although in theory Local 597 operated a referral service through which pipefitters received job assignments 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. 142, Ex. A at 10. 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. 142, Ex. A at 10, 26. The telefitter system largely excluded African Americans, denying them access to the majority of jobs. Id.

         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. 142, Ex. A, at 52-53. The hiring hall would assign jobs from an out of work list on a first-on, first-off basis. Id. at 53. 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 58. 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 (an “OWL”) to refer members to contractors in the order in which the members appeared on the OWL, with those out of work the longest and having the necessary skills and qualifications requested by the contractor referred first. To register for the OWL, 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 OWL 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, firing, and accepting or rejecting pipefitters referred for employment by the Hiring Hall. Doc. 141 ¶ 11. 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 OWL. 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 contractors filled most jobs directly as exceptions, rather than through the referral process. In a conversation with MCA counsel Kevin Connelly in late 2004, Local 597 counsel Dennis Johnson acknowledged that, under the Hiring Hall system, contractors filled less than 20% of jobs from the OWL. According to Curtis Cade, former Financial Secretary and Treasurer of Local 597, contractors preferred not to hire through the Hiring Hall because the contractors seemed to have “a comfort factor with their work force” and were not “real receptive to looking for, you know, different employees.” Doc. 141 ¶ 34. In a follow up question, Plaintiffs asked Cade if he thought contractors meant that they were not receptive to the idea of African American pipefitters when they said they were not receptive to new members. Doc. 141-5 at 69:19-24. Cade responded no. Id.

         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 OWL. The OWL continued to operate in the same way as under the Hiring Hall system. The Referral Hall system required contractors who had four or more new hires in a calendar quarter to make 25% of those new hires from the OWL. 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 OWL 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. 141 ¶ 36. Specifically, (1) apprentices and probationary service technicians are not counted as new hires; (2) journeymen pipefitters who work for a contractor for the proceeding two calendar months are not counted as new hires; (3) the requirement only applies to employers with at least four 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 remained solely and exclusively responsible for hiring pipefitters referred to them from the OWL. Contractors also determined which jobs they sourced from the OWL and which jobs they hired 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 nine percent 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 the same time period, describing the time as a “feeling-out period.” Doc. 141 ¶ 55. Local 597 electronically checks contractor compliance each quarter based on new hires self-reported by the contractors to Local 597.

         Even though both the Hiring Hall and the Referral Hall Rules provided for a mandatory dispute process through which any complaints concerning the Halls were to be filed within seven days of the event or of the complaining party learning of the event, seven of the named Plaintiffs testified that they thought any efforts to file a grievance through the halls' dispute processes would be futile.

         IV. Expert Testimony

         Plaintiffs' expert, Dr. Michael Campion, who has a Ph.D. in industrial and organizational psychology, analyzed eight datasets that covered the Hiring Hall period from 2003 to 2005 and the Referral Hall period from 2006 to 2014. The datasets include over one million entries for over 17, 000 pipefitters, describing characteristics such as race, certification, tenure, jobs staffed, and hours worked. According to Dr. Campion's analysis, African Americans received more jobs overall, and in the halls specifically, than white pipefitters and received slightly more or the same number of jobs with respect to other job categories, such as those for which exceptions existed. Doc. 141 ¶ 150. But this did not translate to African Americans receiving more hours. Instead, Dr. Campion found that African Americans received 21% fewer hours in terms of the mean difference and 32% fewer hours in terms of the median difference than their white counterparts. Id. ¶ 162. According to Dr. Campion, “[b]lacks received more but shorter jobs, resulting in the opportunity to work fewer hours.” Id. ¶ 161.

         In more detail, without controlling for legitimate predictors, the mean difference in work hours between 2003 and 2014 between African American and white pipefitters was 1818 hours, and the median difference was 998 hours. Id. ¶ 162. Controlling for all 129 available predictors of work hours (such as skill qualifications, work zone restrictions, payment of union dues, and the ability to be contacted), Dr. Campion found that African Americans received 828 fewer work hours between 2003 and 2014. Id. He acknowledges that African Americans received more of the jobs from the OWL than whites, however. Id. ¶ 150. From 2003 to 2005, this still meant that African Americans received fewer OWL hours than whites: African Americans received a mean of 1182 hours and a median of 667 hours while whites received a mean of 1524 hours and a median of 1071 hours. Id. ¶ 151. But from 2006 to 2014, the greater number of jobs received from the OWL list by African Americans translated into more hours as well: African Americans worked a mean of 1811 hours and a median of 1125 hours while whites worked a mean of 1490 hours and a median of 821. Id. ¶ 152. Dr. Campion testified that he found no disparity based on race between hours worked generated from Hiring Hall and Referral Hall jobs. Id. ¶ 153.

         Local 597's expert, Dr. Jonathan Guryan, a labor economist, criticizes Dr. Campion's analysis for failing to control for an individual pipefitter's availability to work and for contractor-specific factors. He calculated the average racial makeup of the OWL between February 14, 2006 and May 9, 2014 and found that it contained a greater fraction of African Americans on average (6.9%) than those present in Local 597's membership over that time period (3.2%). Doc. 141-43 ¶ 67. Of all identified African Americans in Dr. Campion's dataset covering the same time period, 71% appeared on the OWL, while only 50% of white pipefitters appeared on the same list. Doc. 141 ¶ 165. But African Americans spent less time on the OWL than their white counterparts, with the median time spent by an African American pipefitter on the list being 19 days compared to 24 days for a white pipefitter. Id. ¶ 159. Additionally, Dr. Guryan's analysis indicates that 9.8% of all calls to members on the OWL went to African Americans, greater than their overall representation on that list (6.9%) over that time period. Id. ¶ 160.

         V. Retaliation Claims

         In addition to their class claims, each of the named Plaintiffs brings a retaliation claim against Local 597, alleging that the union retaliated against them for raising the issue of discrimination. All of the Plaintiffs base their retaliation claims on the continued disparity in hours between African American and white pipefitters, and Wilson and Gayles bring other specific retaliation claims as well.

         Wilson participated as a witness in other similar discrimination litigation against Local 597. See Moore v. Pipefitters Assoc. Local Union 597, U.A., No. 10 C 7376 (N.D. Ill.). A week after Moore listed Wilson as a witness, Wilson's contractor demoted Wilson from his position as foreman. The superintendent who demoted Wilson told him that he was demoted because “things were slow, ” but Wilson testified that other foremen remained in their position. Prior to his demotion, Wilson received positive performance reviews. In addition, after bringing his EEOC charge, when Gayles returned to the OWL after a job, he was dropped to the bottom of the list. Another coworker returning to the OWL from the same job was not dropped to the bottom of the list.

         LEGAL ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.