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Attenborough v. Construction and General Building Laborers' Local 79

September 5, 2006

DANNY ATTENBOROUGH, ET AL., PLAINTIFFS,
v.
CONSTRUCTION AND GENERAL BUILDING LABORERS' LOCAL 79, DEFENDANT.



The opinion of the court was delivered by: Richard Holwell, Usdj

MEMORANDUM OPINION AND ORDER

Plaintiffs, twenty-one individual former or current members of defendant, Construction and General Laborers' Local 79 ("Local 79" or the "Union"), bring this putative class action on behalf of themselves, and all other minority members of Local 79, alleging class-wide causes of action under Title VII of the Civil Rights Act of 1964 (2000) ("Title VII"), 42 U.S.C. § 2000e et seq., the Civil Rights Act of 1866, 42 U.S.C. § 1981 (2000) ("Section 1981"), New York Human Rights Law, N.Y. Exec. Law § 296 (McKinney 2005), Title 8 of the Administrative Code and Charter of the City of New York, N.Y.C. Admin. Code § 8-107 et seq., and New York State Civil Rights Law, N.Y. Civ. Rights Law § 43. Individual plaintiffs James Bynum, Cecil Bell, Thomas Flowers, and Alex Wright additionally allege claims of retaliation due to their filing of charges of discrimination with the Equal Employment Opportunity Commission ("EEOC"), in further violation of Title VII, New York Human Rights Law, N.Y. Exec. Law § 296, and Title 8 of the Administrative Code and Charter of the City of New York, N.Y.C. Admin. Code § 8-107 et seq. All plaintiffs seek declaratory and injunctive relief, declaring that Local 79 has violated their civil rights and those of the putative class, and enjoining defendant from continuing the discriminatory conduct alleged in the Third Amended Complaint. In addition, plaintiffs seek equitable and monetary relief in the form of back pay, punitive damages, nominal damages, and incidental monetary relief, as well as attorney's fees and costs.

This opinion follows the Court's March 29, 2006 order denying plaintiffs' motion for certification of a class without prejudice to renew.

BACKGROUND

Except as otherwise indicated, the following facts are taken from plaintiffs' Third Amended Complaint ("TAC") and exhibits attached to their class certification motion, and are assumed to be true for purposes of this motion. In this motion, plaintiffs seek certification of a class of [a]ll minority members of Local 79 who at any time relevant to this action were or are listed on the Local 79 Out-of-Work List, or who have informed Local 79 of the fact that they were out of work and requested to be placed on the Out-of-Work List, and all minority members of Local 79 who at any time relevant to this action had a shop steward certification from Local 79 or were eligible to obtain a shop steward certification from Local 79.

(TAC ¶ 28.)

Plaintiffs allege intentional discrimination as part of a pattern-or-practice of intentional discrimination (id. ¶ 107), and discriminatory impact claims under federal and state law (id. ¶ 105). According to plaintiffs, Local 79 union officials regularly bypass the union's otherwise fair and objective referral rules and practices (the maintenance of an "out-of-work list") and instead refer the best jobs to friends and relatives through an informal "behind-the-scenes operation." (Id. ¶¶ 38, 69--73, 99.)

1. The Union

Defendant in this action, Local 79, is a local trade union of construction and general laborers in the New York Metropolitan area, with approximately 7500 active members working in the construction and demolition business in New York City. (Id. ¶¶ 31--32.) Local 79 is a member union of the Mason Tenders District Council of Greater New York (the "MTDC"), an umbrella organization for six affiliated local unions in the building and construction industry. (Id. ¶ 33; John Delgado Declaration Sept. 22, 2005 ("Delgado Decl.") ¶ 3.) Both the MTDC and Local 79 are governed by the Laborers' International Union of North America ("LIUNA"), the governing body for all local unions of general labors in the country. (TAC ¶ 34.) In 1995, LIUNA and the United States Attorney General entered into a Consent Decree,*fn1 pursuant to which LIUNA agreed to adopt specific job referral rules to be followed by all its locals, and to be supervised by the General Executive Board Attorney and an independent monitor. (Id. ¶¶ 40, 43.) Also pursuant to the Consent Decree, all the general laborers' local unions in the New York City area were consolidated into Local 79, and as a result Local 79 became the central union hall for all general laborers in the New York City area. (Id. ¶ 45.)

From the time Local 79 was consolidated to present, the Union's Hiring Hall has had two Directors: William Schmidt from April 1996 through May 2004, and Denise Echevarria from May 2004 to Present. (Delgado Decl. ¶ 10.) The Hiring Hall has also had a number of Business Managers: Joseph Speziale from around July 2000 through October 2001, Keith Localzo from November 2001 to November 2004, Kenneth Brancaccio from December 2004 through May 2005, and John Delgado from June 2005 to present. (Id.)

Following the 1996 consolidation, Local 79 began to implement a system for referring out work. (TAC ¶ 46.) Initially, the referral system simply comprised a list whereby Local 79 members would call the Union looking for work, the Union would record the member's name on a list and as referral opportunities arose, the members on the list would be sent out on a first-come, first-served basis. (Id. ¶ 47.) Eventually the rules governing the out-of-work list became more elaborate, and included different tiers of priority based on an individual's hours of experience, and various means by which an individual on the out-of-work list might retain or lose their position on the list. (See James Gerald Bynum Deposition, June 23, 2005 ("Bynum Dep.") 29:06--29:23, 68:05-- 68:18, Pls.' Ex. 5; Construction and General Building Laborers, Local 79 Hiring Hall Rules ("Hiring Hall Rules"), Delgado Decl. Ex. 2; see also infra (discussing the out-of-work list as currently maintained under Local 79's Hiring Hall Rules).)

In New York City, collective bargaining agreements ("CBAs") require that all laborers must be (or soon become) members of Local 79. (TAC ¶ 49.) The standard CBA between the union and local contractors gives the contractor the right to select fifty percent of the general laborers, and gives Local 79 the right to select the remaining 50 percent. (Id. ¶ 50; see also Delgado Decl. ¶ 5.) On each new job, Local 79 also has the right to send out one general laborer who will be designated as the union's shop steward, who is always the first or second laborer assigned to the job, the first entitled to overtime, and the last or second to last to be laid off. (TAC ¶¶ 49--50; see also Delgado Decl. ¶ 5.)

The role of the shop steward is to report to a union "Business Agent"*fn2 any information relevant to the protection of union members' rights while on the job. (TAC ¶ 51.)

2. The Out-of Work List*fn3

According to plaintiffs, the initial and fair first-come, first-served referral system established in 1996 (id. ¶ 47) quickly gave way to the alleged nepotistic and cronyistic referral system that forms the basis of this action (Bynum Dep. 171:20--74:21).

The official referral system involves the maintenance of an "out-of-work list" that is posted on a weekly basis on a bulletin board at the hiring hall. (TAC ¶ 53.) The outof-work list, as currently maintained, lists the members, their preferences, qualifications, and certifications. (Id. ¶¶ 53--57; see also TAC, Exs. 1--4.) In order to gain a slot on the list, out-of-work members ("applicants") must complete a signed and dated referral form stating, inter alia, "skills the applicant possesses and jobs the applicant is able to perform, including any relevant licenses or certifications, and the locations within the five boroughs of New York City to which the applicant is willing to be referred." (Hiring Hall Rules § 1.A.) Once registered on the list, applicants are referred to jobs on a first-in, first-out basis, subject to various exceptions and restrictions.

The first limitation on the first-in, first-out practice is an individual applicant's own skills and/or preferences. This is because an applicant will not be referred to a job that requires qualifications or experience the applicant does not have, nor will an applicant be referred to a job of a type he is unwilling to perform or in a location to which he is unwilling to travel. (Hiring Hall Rules § 2.A.) Later applicants may also receive job referrals before earlier applicants based on hours of experience. The list is divided into four sub-categories, or tiers, of priority (Lists A through D) based on the amount of laborers' lifetime hours of work at the trade. (Hiring Hall Rules § 7.A.) Requests by employers for workers are filled first from the "A List"; therefore until there are no more applicants on List A within a given work and geographic category, no workers from the B, C, or D Lists seeking the same work in the same borough will be called, even if those workers applied to the list before a worker on the A List. (Id. § 7.B.) A later applicant may also be called ahead of earlier applicants on the list if, within sixty calendar days of being referred to an employer, that employer specifically requests the later applicant, provided that worker's preferences as stated on his most recent referral form comply with the criteria of the job at issue. (Id. § 2.B.) In addition, a later applicant may receive a referral before an earlier applicant when the referral comes in from an employer who has terminated the earlier applicant for cause, or previously rejected and deemed the earlier applicant unsatisfactory for work in writing. (Id. §§ 2.H--2.I.)

An applicant can lose his position on the list for various reasons. For example, once a laborer is referred to a job from the list, or has obtained a job directly from the employer, he will remain in the same position on the list, until he has been employed, by one or more employers, for fifteen cumulative days. (Id. §§ 1.C, 2.C.) However, after fifteen cumulative days of employment, the applicant is placed back at the bottom of the applicable out-of-work list. (Id.) An applicant who refuses or is unavailable (without notifying the union in writing) for three consecutive referrals is also moved to the bottom of the applicable list. (Id. § 2.E.) If an applicant gives written notice of a period of unavailability, he can maintain his position on the list, until his cumulative period of unavailability has exceeded thirty calendar days, at which point he will be moved to the bottom of the applicable list. (Id.) An applicant may also lose his position on the list if he fails to inform Local 79 of any jobs obtained at the trade within twenty-four hours of obtaining such job. (Id. § 1.C.) In addition to being dropped to the bottom of the list, an applicant who fails to inform Local 79 of work received outside the list, will be removed from the list for a fourteen-day period during which the applicant would have otherwise been registered and eligible for referral. (Id.) Finally, an applicant's registration on the list is effective on a quarterly basis, and failure to re-register availability for referrals within the first five business days of a quarter will result in the loss of the applicant's position on the list from the prior quarter. (Id. § 1.F.)

3. Shop Steward Appointments

As discussed above, a shop steward is one of the first laborers sent out by the union on any new job. Plaintiffs allege that "[r]eceiving a shop steward assignment is . . . attractive because the shop steward has the most job security, is the first hired and the last fired, has the first option on overtime, tends to accumulate more overtime pay, is generally required to do less demanding physical work, and often does not have to be on the job site in order to be paid." (TAC ¶ 63.)

According to the Hiring Hall Rules, the Business Manager's responsibility to appoint and supervise stewards is governed solely by the LIUNA Uniform Local Constitution. (Hiring Hall Rules § 2.K; Uniform Local Union Constitution of the Laborers' International Union of North America Art. IV § E(3) (2001) ("Union Const."), Delgado Decl. Ex. 3.) As such, shop stewards are not referred to a job according to the date they register on the out-of-work list, but rather are appointed to the job by the Business Manager, apparently according to his discretion. (See Union Const. Art. IV § E(3).) Local 79's Business Manager proffers that the decision to appoint someone as shop steward is "based on their qualifications and the needs of a particular job." (Delgado Decl. ¶ 8(c).)*fn4 Plaintiffs, however, claim that shop steward appointments are the result of insider connections, as opposed to merit or some assessment of qualifications. (See, e.g., Bynum Dep. 234:19--235:17 (identifying, as an example of defendant's unfair appointment practice, the husband of Kenny Brancaccio's*fn5 secretary, who received repeated appointments to shop steward positions despite being new to the business and, according to Bynum, a "moron"); see also infra (discussing plaintiffs' apparent allegations of discrimination with respect to shop steward appointments in further detail).)

In order to be eligible to serve as shop steward, a laborer must complete courses provided by the MTDC Training Fund and obtain certification. (Delgado Decl. ¶ 8(c).) Certification does not guarantee a laborer work as a shop steward, and the decision of whom to appoint shop steward is made by the Business Manager. (Id.)

4. Plaintiffs' Allegations of Discriminatory Hiring Hall Abuses

Although plaintiffs do not specifically identify claims arising out of separate practices, the allegations in the complaint and the scope of the proposed class logically ought to comprise of two distinct practices that plaintiffs believe constitute intentionally discriminatory treatment and/or have a disparate impact on minority union members. The first is the alleged practice of bypassing the out-of-work list. Essentially this claim alleges that instead of adhering to the Hiring Hall Rules which govern job referrals*fn6 and the maintenance of the out-of-work list, union officials pass out the best job referrals to favored "cronies." The second is the undisputed, discretionary method by which shop stewards are assigned.

a. Bypassing the Out-of-Work List

Plaintiffs contend that Local 79 union officials have a practice of bypassing the out-of-work list,*fn7 and alleges this practice constitutes intentional discrimination as part of an established pattern or practice of disparate treatment, as well has having a disparate impact on the union's minority membership. (TAC ¶ 100; see generally Bynum Dep.) According to plaintiffs, this practice of bypassing the out-of-work list occurs by "numerous means whereby a disfavored member can be denied the fair treatment that the job referral rules are designed to protect." (TAC ¶ 70.) Plaintiffs allege that union officials can ignore a member's ranking and send out a "favored member" in his place (id. ¶ 71), or union officials can find out from a contractor that a job opening will become available, and send a favored member without ever reporting the referral opportunity to the Hiring Hall (id. ¶ 72). There is one example of this practice proffered in the third amended complaint. Plaintiff Beverly Colon received a call in the Fall of 2001 from Denise Echevarria, then the Assistant to the Director of the Hiring Hall, and was told Colon was being referred as the first person on the out-of-work list to a "good, long-term" job. (Id. ¶ 77.) ...


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