The opinion of the court was delivered by: SAND
In each of two separate cases now consolidated for trial, suit was brought by two classes which together comprise all black and hispanic persons who have been or will in the future be employed as "cleaners"
by the defendants Madison Square Garden Center, Inc. ("Center, Inc."), Madison Square Garden Corporation ("Garden Corp."), Allied Maintenance Corporation ("AMC"), and Allied Public Event Service Corporation ("Allied"). Local # 3, International Brotherhood of Electrical Workers ("Local 3"), is also named as a defendant in these actions.
Plaintiffs allege that defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970) and the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1981 and 1985 (1970) respectively,
by engaging in a pattern of hiring and employment practices which made it impossible for class members to secure the higher paying and generally more desirable position as "laborer" at Madison Square Garden ("the Garden"). Prior to trial, Center, Inc., Garden Corp., AMC and Allied all entered into a proposed consent decree,
and the consolidated trial of these two actions was limited to the issue of Local 3's liability under the employment discrimination statutes involved. The question of damages was left for separate consideration should liability be found.
The plaintiffs in each suit were arranged in a Title VII class and a §§ 1981 and 1985 class. In the first suit, the "Ingram" action, the Title VII class is limited to black persons employed as "cleaners" since February 14, 1973, and the §§ 1981 and 1985 class to those black and hispanic persons so employed since December 30, 1973. In the second suit, the "Anderson" action, the two classes are identically described except for the limitation dates, which in the Anderson action are May 28, 1975 and March 31, 1975, respectively. On August 13, 1973, the Ingram plaintiffs filed charges against "Madison Square Garden" and AMC with the Equal Employment Opportunity Commission ("EEOC") pursuant to 42 U.S.C. § 2000e-5. Notices of "Conciliation Failure" and "Right to Sue" were issued on October 4, 1976 and on December 30, 1976, within the 90 day jurisdictional period provided by 42 U.S.C. § 2000e-5(f)(1), the Ingram plaintiffs filed their initial complaint in this action against Center, Inc. and AMC. The complaint was subsequently amended to include Allied, Garden Corp. and Local 3. Local 3, which was served with a summons and complaint on June 22, 1977, was not a party to the Ingram EEOC action. On November 24, 1975, the Anderson plaintiffs filed charges with the EEOC against "Madison Square Garden", AMC and Local 3, and a notice of right to sue was issued on January 16, 1978. The Anderson complaint was filed on March 31, 1978 and served on Local 3 (which was a party to the Anderson EEOC action) on August 21, 1978.
The crux of plaintiffs' complaint with respect to Local 3 is that the union, which is the bargaining agent for the "laborers" at the Garden and which refers prospective employees to the Garden for employment as laborers, employs a completely subjective and standardless referral policy, relying almost entirely on word of mouth and favoritism, and that that policy operates to discriminate against class members by preventing them from becoming laborers.
The defendant, in addition to denying that the manner in which it refers laborers to the Garden violates any of the employment discrimination statutes involved, also interposes several jurisdictional issues and the statute of limitations as a defense. The Court concludes that the defendants' threshold objections with respect to Title VII and § 1981 are without merit,
and finds that Local 3's referral "policy" violates both provisions. The plaintiffs' § 1985 claims, however, are dismissed in accord with the Supreme Court's recent ruling in Great American Federal Savings & Loan Assoc. v. Novotny, 442 U.S. 366, 99 S. Ct. 2345, 60 L. Ed. 2d 957, 20 EPD 30,004 (1979). The following discussion constitutes our findings of fact and conclusions of law pursuant to F.R.C.P. 52.
I. The Employment Structure at the Garden
Center, Inc. currently employs a staff under the direction of a superintendent at the Garden. The staff includes electricians, oilers and firemen, engineers, carpenters, painters and laborers. Prior to July 2, 1969, Center, Inc. also employed personnel in the job category referred to herein as "cleaners". On that date, Center, Inc. completed a process it had begun two years earlier
by entering into a contract with Allied under which Allied agreed to provide all janitorial and lavatory services at the Garden. Center, Inc. employees in the cleaner category were offered the opportunity to work for Allied at the Garden in the same capacity in lieu of discharge, and most accepted.
Allied currently provides all janitorial and lavatory services at the Garden, and the work of the cleaners is substantially the same today as it was in the pre-Allied period.
Laborers effect the changeovers from one event to the next, a task which requires them to erect and remove various structures, operate vehicles such as forklifts, ice scrapers and vans, effect repairs in the roof, floors, sidewalks and athletic or other equipment, and move around various heavy objects. The laborers also spend a portion of their time cleaning, but the parties disagree as to how much time is so spent.
Although the Court agrees with defendant's contention that the question is irrelevant to the issue of whether Local 3 has violated the employment discrimination statutes, the Court finds that the job of laborer is, on the whole, more strenuous than that of cleaner, but that laborers spend between one-third and one-half of their day performing tasks similar or identical to those performed by cleaners. The Garden imposes no independent qualifications for the job of laborer other than passing the physical examination required of all employees,
and it generally hires laborers through the union referral process described below.
Cleaners perform general cleaning and janitorial functions at the Garden such as mopping, washing, dusting, trash removal, etc., and those cleaners classified as lavatory attendants perform similar functions in the lavatory areas only. The hiring of cleaners is done solely by Allied, which recruits its employees from various sources and which imposes no specific physical or education requirement for the position of cleaner at the Garden.
Cleaners generally earn between 65% And 70% Of what laborers earn, and the differential in other employment benefits, E. g., pension and annuity plans, appears to be substantial. All employees at the Garden in the cleaner category are represented by Local 54.
The laborer force at the Garden has historically been all white. Prior to January 1, 1965, the effective date of Title VII, and since at least 1948, there had been no black or hispanic person employed as a laborer. Between 1965 and 1969, one of the twenty-two new laborers hired was black and one was hispanic, the rest were white. By July, 1977, around the time this law suit was initially filed, thirty-eight new laborers were hired, thirty-three of whom were white, four black and one hispanic. The 1978 Garden laborer work force consisted of fifty-five employees, forty-seven of whom were white, five black and three hispanic. The composition of the laborer work force has thus changed only slightly since blacks or hispanics were first hired in 1969.
By contrast, the cleaners work force, with the exception of those classified as six day cleaners, has historically been almost exclusively black. The lavatory attendants were all black in 1978, and have been all black since at least 1948. The five day cleaners were all black between 1948 and 1969, and in 1978, of the thirty-four employees in that category, twenty-four were black, seven were hispanic and three were white. In 1978, the six day cleaner force, which was at one time composed largely of white women, totaled twenty-eight workers, of whom twelve were white, one black and fifteen hispanic. No cleaner in either category has ever transferred to a laborer position.
II. Laborer Hiring at the Garden and Local 3 Referrals
The testimony of both Garden and Local 3 officials at trial revealed that since at least 1941, the hiring of laborers at the Garden has proceeded in the following manner:
when a vacancy in the laborer force occurs, the Garden superintendent, currently and for the past thirty-seven years Mr. Richard Donopria, either advises the Local 3 shop steward, currently a Mr. Mel Mullins, or advises the union directly, in the person of Mr. James O'Hara. O'Hara is one of three assistant business managers of Local 3 and, since 1969, has been the union's representative for the laborers. O'Hara alone makes referrals to the Garden for the position of laborer, and when Donopria is in contact with Mullins, Mullins informs O'Hara. In either case, once the union is advised that a vacancy exists, it sends a person with a "slip" indicating that he had been sent by the union to see Donopria. Donopria testified that he always checks to see whether an applicant had been sent by the union, and that he had hired laborers without a union slip only on special occasions for temporary spots. Thus, all of the Garden's permanent laborer hiring results from Local 3 referrals,
although Center, Inc. may reject, for any reason, a person referred by Local 3 for a laborer's position. Center, Inc. does not advertise laborer vacancies in newspapers nor does it advise its employees or Allied employees at the Garden that such vacancies exist.
The practice followed by Local 3 in determining who to refer to the Garden in response to a request by Mr. Donopria for a new laborer can best be characterized as subjective and standardless. The union has no procedure by which one may register for referrals to the Garden as a laborer, and no list or record of workers seeking such a referral is kept. There is no regular procedure by which unemployed members of other Local 3 divisions can obtain referral for laborer work, despite the fact that other Local 3 divisions do have a referral procedure for unemployed members. Local 3 gives no test to, and requires no apprenticeship of, the people it refers to the Garden for employment as a laborer, and even union membership is not a prerequisite. Indeed, most of the people referred to the Garden during Mr. O'Hara's tenure were not union members. The only requirement for referral appears to be that the applicant be a friend, relative or the relative of a friend of Mr. O'Hara. O'Hara explicitly testified that most of the referrals were made on the basis of personal acquaintance, favorable impressions at interview and as the performance of favors for other persons.
The result of Local 3's referral "policy" was the near perpetuation of the completely segregated Garden laborer work force that existed until 1969. Although neither Local 3 nor Mr. O'Hara keep records of the Garden's requests for referrals or of the referrals actually made, O'Hara himself remembers the circumstances surrounding the referral of thirty-seven men to the Garden for the position of laborer. Of these, thirty-one were white, four black and two hispanic. Except for four who were recommended by others "associated" with Local 3, all of the white referrals were recommended by, or were themselves, friends of O'Hara, and only four were already members of Local 3. Of those four, one was O'Hara's son, and two were his friends. By contrast, all of the six minority members whom O'Hara remembers recommending were already members of other Local 3 divisions.
Of a total of thirty-seven new hires during O'Hara's tenure, thirty-one have been white, four black and two hispanic. At least one of the minority ...