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MYREE v. LOCAL 41

March 6, 1992

SOLOMON MYREE, SR., Plaintiff,
v.
LOCAL 41, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Defendant.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

DECISION AND ORDER

 INTRODUCTION

 Solomon Myree, Sr. ("plaintiff") is a black male, born November 27, 1936. In 1985, the plaintiff filed this lawsuit alleging that the defendant Local 41, International Brotherhood of Electrical Workers ("Local 41") discriminated against him because of his race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq. ("Title VII").

 Between February 19 and February 27, 1991, this Court held a five-day bench trial with respect to the issue of liability only. This Decision constitutes the Court's Findings of Fact and Conclusions of Law with respect to liability.

 In 1973, the plaintiff enrolled in an affirmative action Journeyman Electrician training program ("the training program") funded by the State of New York and co-sponsored by the Buffalo Affirmative Action Program, the Western New York Chapter of the National Electrical Contractors Association and Local 41.

 The plaintiff's Journeyman Electrician training consisted of institutional and on-the-job training components. The institutional training comprised approximately ten months of full time classroom instruction plus four weeks of simulated on-the-job instruction. The on-the-job training comprised approximately four weeks of actual on-the-job experience with Buffalo area electrical contractors. According to the training program plan, upon completing his institutional and on-the-job training, plaintiff became eligible to sit for the Journeyman's Electrician examination administered by Local 41 ("the Journeyman's examination"). Successful completion of the Journeyman's examination qualified the plaintiff for admission into Local 41.

 The training program was, generally, an accelerated version of Local 41's apprenticeship program. The programs utilized the same coursebook material for classroom instruction, the four year inside wireman training course for apprentices, and both culminated with the Journeyman's examination which tested the classroom material. While the training program participants were minority individuals, the participants in the apprentice program were, for the most part, nonminority individuals.

 After completing his institutional and on-the-job training in December 1974, the plaintiff sat for his first Journeyman's examination administered by Local 41 in January 1975. The plaintiff failed the examination. The plaintiff sat for a second Journeyman's examination in May 1975 and, again, failed.

 On March 12, 1976, the plaintiff filed a state law racial discrimination claim with the New York State Division of Human Rights ("State Division"). The plaintiff also filed the same racial discrimination charge with the United States Equal Employment Opportunity Commission ("EEOC") by virtue of authorizing the State Division to transmit a copy of his claim to the EEOC. Although the EEOC deemed the plaintiff's charge filed on March 12, 1976, there is no evidence that the EEOC ever contacted the plaintiff with respect to his EEOC charge. On January 25, 1978, after completing its investigation, the State Division issued a notice of probable cause of discrimination without factual findings.

 On November 22, 1985, the plaintiff, proceeding pro se, filed this lawsuit, claiming that Local 41, NECA, the New York State Department of Labor and the Buffalo Affirmative Action Program discriminated against him in violation of Title VII. This lawsuit was originally assigned to the Hon John T. Curtin, who, by Order signed December 15, 1987, dismissed the plaintiff's lawsuit against all defendants except Local 41 on technical grounds. Shortly thereafter, Judge Curtin granted the plaintiff's motion for appointment of counsel and, on October 5, 1990, transferred the case to this Court.

 Between the dates of February 19 and February 27, 1991, this Court held a bench trial addressing only the issue of Local 41's liability. This Court heard the testimony of four witnesses called by the plaintiff: Daniel Erker, current Business Manager of Local 41, John Wright, a participant in Local 41's training program, Harold Hudson, another training program participant, and John Mose, a former director of the Buffalo Affirmative Action Program. Local 41 called one witness in its case in chief, Daniel Erker.

 At trial the plaintiff contended that Local 41 committed racial discrimination against him under theories of disparate treatment and disparate impact. With respect to disparate treatment, the plaintiff claimed that Local 41 applied different admissions policies with respect to the minority participants in the training program ("the trainees"), such as the plaintiff, and the mostly nonminority participants in the apprentice program ("the apprentices"). Specifically, the plaintiff contended that although Local 41 conditioned plaintiff's union membership on his successful completion of the Journeyman's examination, Local 41 admitted apprentices before they sat for the Journeyman's examination. The plaintiff also claimed that Local 41 designed his Journeyman's examinations to be difficult to pass, so as to discourage his admission to the union. Finally, the plaintiff claimed that Local 41 applied different examination policies to the plaintiff and his fellow trainees than to the apprentices.

 With respect to disparate impact, the plaintiff claimed that the trainees, as a whole, performed far worse on the Journeyman's examination than the apprentices and, therefore, that the examination caused the selection of minority applicants for admission to the union at a far lower rate than the non-minority apprentice applicants.

 Local 41 disputed all of the plaintiff's claims and asserted that, in any event, the limitations provisions of Title VII and the doctrine of laches barred the plaintiff's recovery.

 For the reasons set forth below, having considered all the evidence presented at trial, this Court finds that the plaintiff has proven by a preponderance of the evidence that Local 41 discriminated against him because of his race, in violation of Title VII. This Court also concludes that Local 41's affirmative defenses do not prevail.

 FINDINGS OF FACT

 In 1970, Governor Rockefeller outlined his "Buffalo Plan" ("the Plan"), a comprehensive affirmative action scheme for the Buffalo area designed to secure ". . . greater minority group representation in the construction industry. . . ." A primary focus of the Plan was to recruit and prepare minority individuals for membership in the building and construction trade unions. Buffalo area labor unions and building contractors subscribing to the Plan agreed to implement training programs over a four year period to train qualified minority applicants to become skilled Journeymen tradesmen. Administrative committees comprised of representatives of labor, management and the minority community were created to promote and oversee the implementation of Journeyman training and apprenticeship programs. While funding for minority training was to be provided through federal or state government agencies, the trade unions were responsible for providing institutional and on-the-job training. (plaintiff's exh. 33).

 Pursuant to the Plan, the Western New York Chapter of the National Electrical Contractors Association ("NECA") jointly with Local 41 entered into a series of year to year subcontracts, as subcontractor, with the administrative committee of the Buffalo Affirmative Action Program ("BAAP"), as contractor, to sponsor a Journeyman Electrician training program. Under the subcontracts, Local 41 and NECA, as subcontractor, agreed to

 . . . employ, and perform all the on-the-job training services for the specified number of trainees . . . [and] furnish all the instruction and other services, materials, equipment and supplies necessary therefor. . . .

 Each subcontract required that the subcontractor provide thirty-six weeks of classroom instruction, eight weeks of simulated on-the-job training and eight weeks of actual on-the-job training for twenty trainees. The subcontract also provided that during classroom instruction and simulated on-the-job training, the trainees would be paid an hourly wage stipend, $ 2.75 per hour according to the subcontract effective during the plaintiff's institutional training. During actual on-the-job training, trainees would be paid by the employer contractor. According to the terms of the subcontract, once the trainees completed these segments, they were eligible to ". . . submit an application for membership into the Electrical Workers Local Union # 41 and be scheduled for examination through the normal channels for membership." (plaintiff's exh. 23).

 To gain admission to Local 41, the trainees were required to complete the training program, as outlined above, and then successfully complete the Journeyman's examination administered by Local 41.

 Trainee candidates were recruited through the Buffalo Build Outreach and Recruitment Center ("Build"). A selection committee comprised of a Local 41 representative, NECA representative and a member of the minority community selected twenty individuals for a one year training program. The qualifications for admission into the training program were that the individual must have:

 1) been over 25 years of age, '. . . the apprenticeship age . . .' 2) maintained residency in the Union's jurisdiction for at least one year; 3) been ' . . . physically able to perform the work;' 4) possessed '. . . a background of skills or aptitudes;' and 5) been '. . . fully motivated to enter the Construction Field.'

 (plaintiff's exhs. 8, 23).

 Funding for the training program was provided through the BAAP administrative committee by the New York State Department of Labor pursuant to the New York State Manpower Training Act, New York Labor Law Article 23-A. The total training program consisted of four training courses from 1973-1976, each designated a "Cycle," lasting over the course of about one year with approximately twenty trainees.

 Sometime in late 1972 or in 1973, *fn1" the plaintiff interviewed for enrollment into the Journeyman Electrician training program sponsored by BAAP, Local 41 and NECA. After approval by the selection committee, the plaintiff was placed in the Second Cycle trainee Class ("Second Cycle"). At the time of his application to the program, the plaintiff possessed a high school diploma, had some vocational training and had completed three years toward a bachelor's degree in education. (plaintiff's exh. 2; defendant's exh. G). The plaintiff's prior employment experience was as a laborer. (plaintiff's exh. 2). Plaintiff was one of eighteen minority participants in the Second Cycle and, on November 12, 1973, began classroom instruction. (plaintiff's exhs. 3, 31).

 The classroom portion of the training program ("classroom training") consisted of five full day sessions per week over ten months. Qualified Journeyman Electricians selected by Local 41 instructed the classroom training sessions. The training materials used by the plaintiff, and the other Second Cycle trainees, were the standard apprentice training books designed by the National Joint Apprentice Training Committee for the apprentice Journeyman Electrician four year training course. (See exhs. 25-27). Each coursebook represented one year of apprentice training. They were the same materials which Local 41 used to instruct its apprentices over a four year period; although the classroom portion of the apprentice program occurred once per week.

 During the classroom training, Local 41 tested the Second Cycle trainees weekly. On his weekly tests plaintiff maintained an average of at least 80% *fn2" After finishing a yearly coursebook, the trainees took a comprehensive exam covering that year. *fn3" On September 13, 1974, the plaintiff completed his classroom training and simulated on-the-job training. As the term suggests, the plaintiff's simulated on the job training consisted of various exercises designed to create an authentic work situation. The plaintiff attended 1479.5 hours of classroom and simulated on-the-job training, missing one session and attending 213. (plaintiff's exh. 4).

 On September 23, 1974, continuing his Journeyman Electrician training, the plaintiff began actual on-the-job training and was referred by Local 41 for actual jobs with two electrical contractors. On December 20, 1974, the plaintiff completed on-the-job training. (plaintiff's exh. 31).

 On January 16, 1975, the plaintiff sat for his first Journeyman's examination. The plaintiff achieved a score of 14, deemed a failing grade by Local 41. (plaintiff's exhs. 11 and 11a).

 Of the eighteen individuals in the Second Cycle, eleven, including the plaintiff, sat for the January 16, 1975 Journeyman's examination ("January examination"). *fn4" Of the eleven individuals who sat for the January examination passed and seven failed. The four passing scores were 61.5, 56, 51.5 and 45, by trainees Bologna, Smith, Jones and Robinson, respectively. *fn5" On March 11, 1975, Local 41 admitted Bologna, Smith, Jones and Robinson. (plaintiff's exh. 31).

 After failing the January 1975 examination, the Second Cycle trainees who failed, or their representative, communicated with Build requesting to view their January examination and to take another examination. Although Local 41 denied them an opportunity to view their examinations, it agreed to administer a second examination to the Second Cycle trainees who failed the January examination. (plaintiff's exh. 21, p.1, minutes of March 3, 1975 meeting). In preparing for a second Journeyman's examination, the plaintiff did not participate in additional classroom training but continued study of his coursebook material with other trainees, absent instructors.

 On May 1, 1975, the plaintiff sat for a second Journeyman's examination ("the May examination"). The plaintiff achieved a score of 58, deemed a failing grade by Local 41. (plaintiff's exhs. 13 and 13a.). Of the seven individuals in the Second Cycle who failed the January examination, six including the plaintiff, sat for the May examination. Of those six, one passed, trainee Scarver, with a score of 74 & 1/6. (plaintiff's exh. 14). *fn6" On May 13, 1975, Local 41 admitted Scarver. (plaintiff's exh. 31).

 Local 41 continued to deny the request of the plaintiff and other Second Cycle trainees to view their graded examinations on the grounds that union policy was not to release completed examinations. Local 41 also denied the plaintiff's request to take a third Journeyman's examination. (plaintiff's exh. 18. p. 4, minutes, of October 16, 1975 meeting; plaintiff's exh. 21, minutes of November 6, 1975 special meeting).

 The only evidence before this Court indicating the history of the remaining three cycles of the training program is the plaintiff's exhibit 31, a Local 41 document entitled "Overall Report."

 Of fifteen individuals enrolled as trainees in the First Cycle, one individual resigned and Local 41 admitted fourteen after passing the Journeyman's examination. Of the fourteen individuals in the First Cycle who sat for the Journeyman's examination, eight passed the examination in a single attempt. All six who failed to pass in their first attempt, also failed the Journeyman's examination in their second attempt. All six passed the Journeyman's examination in their third attempt. (plaintiff's exh. 31). The First Cycle was the only Cycle of the four afforded three opportunities to pass the Journeyman's examination.

 Of twenty individuals enrolled as trainees in the Third Cycle, six individuals resigned and Local 41 admitted six after passing the Journeyman's examination. Apparently, one other individual, Briggs, passed but was not admitted into Local 41. Two individuals failed after one Journeyman's examination and did not sit for a second examination and three individuals failed after two examinations. One individual, Pettway, did not show for one Journeyman's examination, and one, Hicks, remains unaccounted for. (plaintiff's exh. 31).

 Of twenty-one individuals enrolled as trainees in the Fourth Cycle, four resigned, and the remaining seventeen are unaccounted for. (plaintiff's exh. 31). However, Daniel Erker of Local 41 testified that at least some of the seventeen became union members.

 CONCLUSIONS OF LAW

 Section 703 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, provides in relevant part:

 (c) It shall be an unlawful employment practice for a labor organization --

 (1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;

 Section 703 further provides:

 (d) It shall be unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, ...


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