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Attenborough v. Construction and General Building Laborers' Local 79

September 29, 2009



In these consolidated cases 18 individual plaintiffs allege that they were subject to discrimination because the predominately white leadership of defendant Construction and General Building Laborers' Local 79 ("Local 79" or the "Union") favored its relatives and friends when referring out union jobs, resulting in disparate treatment of, and a disparate impact on, minority members of the Union, including plaintiffs. Certain of the plaintiffs further allege that Local 79 retaliated against them for bringing these actions. Defendants now move for summary judgment on all claims. Defendants argue that plaintiffs have produced no evidence of disparate treatment or disparate impact, and that whatever evidence plaintiffs have of retaliation is largely inadmissible hearsay. For the reasons that follow, defendants' motions are granted in part and denied in part.


Many of the undisputed facts concerning the Union's referral practices are set forth in the Court's prior opinion denying plaintiffs' motion for class certification, familiarity with which is presumed. See Attenborough v. Constr. & Gen. Bldg. Laborers' Local 79, 238 F.R.D. 82, 85--88 (S.D.N.Y. 2006) ("Attenborough I"). Therein the Court concluded that in the complete absence of statistical evidence of disparate impact or treatment and considering the generalized nature of plaintiffs' anecdotal evidence, plaintiffs had failed to establish the commonality and typicality requirements of Rule 23(a). Id. at 95--100. Nevertheless, plaintiffs were given leave to conduct additional discovery on the issues of commonality and typicality and, thereafter, to file a renewed motion to certify a class. Id. at 100. Plaintiffs elected not to seek further discovery or to renew their class certification motion. Accordingly, the only claims before the Court are those of the 18 individual plaintiffs. The Court reviews that record in a light most favorable to the plaintiffs.

The Union's Referral Rules for Laborers

Defendant Local 79 is a labor union whose roughly 7,000 members (collectively, "laborers") work in a variety of construction trades, including demolition, the tending of bricklayers (known as "mason tending"), exterior building restoration, and general conditions work. (Def.'s R. 56.1 Stmt. ¶¶ 1, 4.)*fn1 Frank Noviello was Local 79's president from 2000 to 2004. (Vitale Decl. for Bell Ex. 2 at 65.) Local 79 is an affiliated local of the Mason Tenders District Council ("MTDC"), which collectively bargains on Local 79's behalf, and both entities are affiliates of the Laborers International Union of North America ("LIUNA"). (Def.'s R. 56.1 Stmt. ¶ 1.) One of the primary functions of Local 79 is to refer its members for laborer positions in the New York City area in accordance with a set of rules set forth in various collective bargaining agreements. (See id. ¶¶ 8--15.) Plaintiffs concede that the referral rules are "fair and objective," but allege that, at the request of the Union's business agents, the Union Hiring Hall Director would bypass the rules to refer friends and relatives to desirable jobs. (Pltfs.' Mem. Opp. Summ. J. at 5--6.)

None of the collective bargaining agreements at issue require contractors to hire particular laborers referred by the Union. (Def.'s R. 56.1 Stmt. ¶ 7.) Contractors may refuse to hire a referred laborer, and the Union will simply refer another laborer in his or her place. (Id.) Similarly, the agreements do not require contractors to employ Union referrals for a minimum length of time. (Id.) Rather, the agreements require that a certain number of jobs be filled by referrals from the Union, with the remainder of laborers directly selected by the contractor. (Id. ¶¶ 6--7.) The collective bargaining agreement with the Contractors Association of Greater New York, for example, requires 50 percent of all hires after the first eight to be from Union referrals. (Id. ¶ 6.) Because many jobs covered by collective bargaining agreements require only a few laborers, a large majority of laborer positions are filled by Union members who have not been referred by the Union. (Delgado Decl. ¶ 6.)

When an opening is filled through referral, the Union's written policy mandates that referrals be distributed on a "first in-first out" basis, with several important exceptions. (Id. ¶ 8; see Delgado Decl. Ex. 2, "Construction and General Building Laborers, Local 79 Hiring Hall Rules.") Under the policy, Union members applying for work must first register on the "Out-of-Work List" (the "OOWL"). (Def.'s R. 56.1 Stmt. ¶ 10.) An applicant may choose (as many plaintiffs did) to limit his work preferences (e.g., to "general conditions" work only) or his location preferences (e.g., to Manhattan and Bronx only). (Id.;Delgado Decl. ¶ 8(a).) Members are never referred to jobs in work areas or locations that they excluded. (Delgado Decl. ¶ 8(a).) Members are also divided into four tiers, labeled A, B, C, and D respectively. (Id. ¶ 8(b).) Members who have 4,000 or more hours qualify for Tier A status. (Id.) Higher tiers get priority over lower tiers. In other words, if two members had identical work and location preferences but one was Tier A and the other Tier B, the Tier A member would be referred before the Tier B member regardless of when each member registered with the OOWL. (Id.) To summarize, when a job comes in, the Union looks first to the Tier A members on the list, and if the job meets the preferences of any of those members, those members will be referred in the order they registered. If the job meets none of the Tier A members' preferences, the Union will look to the Tier B members on the list, and if the job meeets the preferences of any of those members, those members will be referred in the order they registered. The Union will then repeat the process with Tiers C and D. (See id.)

Union members can be removed from the OOWL for various reasons. Of course, a member's name will be removed if he or she is referred out, but the member may return to the same place on the OOWL if his or her referral or sequence of referrals results in fewer than 15 cumulative days of employment. (Def.'s R. 56.1 Stmt. ¶ 14.) Members can also be removed if they obtain work without a referral. (Id.) Finally, members are required to re-register every calendar year, and failing to re-register results in removal from the list. (Id.)

Shop Steward Appointments

Shop stewards are laborers appointed to a job who serve as the first line of representation for the Union and file reports on the hours worked by all laborers at the site. (Delgado Decl. ¶ 8(c)). Shop stewards are appointed by the Union's Business Manager and are not selected according to the rules governing referrals. (Id.) Registration on the OOWL is not required, but all shop stewards must take certain Union-offered classes to attain and maintain shop steward certification. (Id.) Virtually every member is eligible to take these classes. (Id. ¶ 12.) The decision to appoint a shop steward is entirely within the Business Manager's discretion. (Id. ¶ 8(c).) During the period in question, the Union had four Business Managers: Joseph Speziale from at least December 1997 until October 2001; Keith Localzo from November 2001 until November 2004; Kenneth Brancaccio from December 2004 though May 2005; and John Delgado from June 2005 to the present. (Def.'s R. 56.1 Stmt. ¶ 17.)

Anecdotal Evidence of Disparate Impact and Treatment

Plaintiffs' primary evidence of discrimination is their own testimony, particularly the testimony of James Bynum. From 1996 to 2000, Bynum worked as a business agent*fn2 at Local 79's Hiring Hall, and thereafter as a laborer. (Smith Decl. Ex. 2 ¶ 2.) One of Bynum's specific job responsibilities for the four years he worked as business agent was serving as Assistant to the Hiring Hall Director, William Schmidt, from 1996 to 1998. (Id.; Smith Decl. Ex. 10 at 13, 16.) As the Local 79 officer in charge of referrals, Schmidt would match Union members on the OOWL with the 20 to 30 jobs that were called in on a daily basis. (Smith Decl. Ex. 10 at 148.) As Schmidt's assistant, Bynum would actually call the members on Schmidt's behalf to see if they wanted the job. (Id. at 16.) Because Schmidt had a "see nobody policy," i.e., he didn't speak to or see Union members, Bynum would also speak to any members who came in person to request work or complain about referrals they had gotten. (Id. at 146.)

Bynum gave testimony that Schmidt did not follow the OOWL when making referrals among the 20 to 30 jobs that came in daily. (Id. at 146--51.) At his deposition, Bynum testified that "Billy takes this crap [the list of available jobs] home and he plays with it and figure[s] out who he sends to where . . . ." (Id. at 148.) He testified that the OOWL was "garbage" (id.) and that Billy didn't follow it or any other of the Union's hiring rules (id. at 151 ("Billy had no rules. Billy did what Billy wanted to do.")). Business agents would regularly ask Schmidt for "favors," requesting that their friends and family get referrals ahead of other members on the OOWL. (Id. at 151--59; 172--73.) After Bynum went back to work as a laborer in 2000, Bynum recalled at least one time when business agents sent "two of their buddies down" to work on "a job" that might not have been referred off the OOWL. (Id. at 69--70.)

Bynum, however, was unable to identify any specific individuals who were referred out of turn for a laborer position. (Id. at 68--69 ("I can't say personally because I don't know if people were on the list [OOWL], so I really can't say that . . . .").) Nor was Bynum able to state how frequently Union business agents made such requests. (Id. at 152 ("[E]veryone did a favor once in a blue [moon]. Everybody [who] ever worked there . . . at one point of time or another.").) If a union member walked into the hiring hall, looking for an assignment, however, Bynum testified that they frequently ("millions of times") bypassed the list. (Id. at 150.) Thus, if there was a job available "right there and then, we give it to whoever walked in the door." (Id.) Bynum apparently spoke directly to these walk-ins since the Hiring Hall Director, as noted, followed a "see nobody policy." (Id. at 146.) Bynum did not testify regarding the racial composition of the union members who were referred to laborer jobs in this manner.*fn3

Certain plaintiffs also claim that Union cronies "jumped over" them on the OOWL to be appointed to desirable shop steward positions. (Pltfs.' Mem. Opp. Summ. J. at 27--30.) Specifically, Michael Harrison, Michelle Mitchell, Thomas Flowers, Beverly Colon, Frank Ingram, Nerissa Hairston, Danny Attenborough, Willie Lewis, Cecil Bell, Leon Henry, and Harold Wright claim that on one or more occasions, members further down on the OOWL received assignments as shop stewards. (Id.) Joseph Franco, Peter Dinuzzo, Joseph Chiappette, and Michael Mongelluzzo are identified as union cronies who jumped over various plaintiffs. (Id.) As the Court previously noted, however, a member's position on the OOWL has nothing to do with qualification for appointment as shop steward and, therefore, cannot give rise to an inference of discrimination. Attenborough I, 238 F.R.D. at 99--100.

Aside from the jumping, Bynum also gave testimony that shop stewards were frequently selected based on nepotism and cronyism rather than the quality of their work. (Id. at 216--259.) He described some Union members as "super shop stewards" because "[t]hey don't go out as nothing else" and are "never out of work." (Id. at 218, 224.) Ultimately, it was the business manager who determined who was appointed a shop steward (id. at 226, 228), but people would first approach Schmidt if they wanted a steward appointment (id. at 228). Bynum identified several of beneficiaries of the system including Mike Brennan, Joe Giardino, Joe Mastrione, and Robert Sporano, among others, and matched them with their benefactors in the Union leadership. (Id. at 218-- 231.) Regarding the quality of their work, Bynum branded Brennan a "wino," said Giardino's uncle was "a real mobster," and described Sporano as "an accountant" with "no construction history ever." ( 218, 222, 231.) In his declaration, Bynum gave a list of 22 people he had identified as "super shop stewards." (Smith Decl. Ex. 2 ¶ 10.) Bynum testified that he based his conclusions both on personal experience-i.e., witnessing business agents pushing for their "cronies"-and his knowledge that certain members were never out of work despite numerous other members having the same qualifications to be shop stewards. (See, e.g., Smith Decl. Ex. 10 at 221, 225.)

Two other plaintiffs gave testimony concerning shop steward appointments. Michael Harrison testified that he had been taken off a shop steward job when it became more lucrative and was replaced by a "crony." (Smith Decl. Ex. 30 at 195--212.) Frank Ingram testified that he received a shop steward appointment immediately after threatening to sue Local 79, despite having no experience in the position. (Smith Decl. Ex. 32 at 120--27.)

Statistical Evidence of Disparate Impact

As for statistical evidence of the impact of Local 79's practices, plaintiffs offer evidence of the racial composition of Local 79's leadership from 1996 to 2001 as well as the race of those people identified as "super shop stewards." (See Smith Decl. Ex. 2 ¶¶ 8--10.) During that time, Local 79's Executive Board was composed entirely of white males, mostly of Italian origin. (Id. at 10.) The Union's business agents-31 in total- were roughly 71 percent white (22 out of 31), 16 percent Hispanic (5 out of 31), and 13 percent black (4 out of 31). (Id.) Except for one man whose race is unidentified, all of the "super shop stewards" identified by Bynum are white (id.) and worked an average of 1,823.8 hours per year from 2000 to 2004 (see Pltfs.' Mem. Opp. Summ. J. at 17; Smith Decl. Ex. 21 at 1). Plaintiffs, who are all black, worked an average of 801.9 hours per year between 2000 and 2004. (See Pltfs.' Mem. Opp. Summ. J. at 16; Smith Decl. Ex. 21 at 2.)

Plaintiffs offer no statistical evidence as to the racial breakdown of the 7,000 union members, their position on the OOWL, the job and location preferences they specified, the jobs to which they were referred, or the pay that they earned. Accordingly, there is no statistically significant evidence that minority members of Local 79 work fewer hours or earn less money than similarly situated whites, let alone that the Union's administration of the OOWL referral system causes such a result.

Plaintiffs argue, as they did on the class certification motion, that they were unable to develop statistical evidence of disparate impact or treatment because the Union failed to prepare and file EEO-3 Reports. In December 2005, the EEOC contacted Local 79 to inquire into the Union's failure to file an EEO-3 Report. (Def.'s R. 56.1 Stmt. ¶ 27.) EEO-3 Reports require local unions to provide data every two years concerning the race and sex of their membership and a breakdown of job referrals by race and sex for a two-month period during the year. (See Delgado Decl. Ex. 9.) The report specifies that the information provided "may be obtained by visual survey, from records made after employment, from personal knowledge or by self-identification." (Id.) In response to the EEOC's inquiry, Local 79 filed an EEO-3 Report in 2006. (Def.'s R. 56.1 Stmt. ¶ 28.) Prior to 2006, Local 79 had not filed any reports with the EEOC. (Id. ¶ 26.)

The Court addressed this issue, at least in part, by reopening discovery to permit plaintiffs to gather statistical evidence to support their claims. See Attenborough I, 238 FRD at 100; see also Tr. of Oral Arg. dated March 28, 2006 at 18, 20 (recognizing that denial of plaintiffs' motion to compel production of non-existent EEO-3 Reports is "not to say that the same information or relevant information can't be sought in another manner. . . . clearly it can be"; "the reality . . . is that [plaintiffs] should attempt to get statistics or race-related data from the defendants"). Plaintiffs declined the Court's invitation to seek further ...

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