STATEMENT OF:
STEPHEN W. GARD  PDF Image of File
Professor of Law
Cleveland-Marshall College of Law
Cleveland, Ohio 44115

I

Initially, I would like to emphasize that I am a law pro­fessor and have, for the last nine years, devoted myself to teach­ing and writing in the areas of constitutional law and torts. Although I am admitted to practice in the state of Ohio and Indiana, I have by choice not engaged in private practice since I began teaching in 1975. Nevertheless, I am here today be­cause I am counsel representing plaintiffs in two lawsuits presently pending in the United States District Court for the Northern District of Ohio, Oberle v. Erwin, Civil No. C80-1652 and Gradel v. Erwin, Civil No. C80-1974. Both are actions against Local 18, International Union of Operating Engineers and its officers alleging massive employment referral discrim­ination against union members seeking employment through the union's exclusive hiring hall. In both cases it is alleged that this discrimination has continued for approximately a decade.

When I was first approached in 1980 by my colleague Pro­fessor Alan Miles Ruben to participate in these cases I was very reluctant to do so. It would be contrary to principles which I hold dear to take a position which would even appear to be anti-union. As a strong advocate of civil liberties I believe the tenets of the labor movement, brotherhood, equality. and social and economic justice, deserve unfailing loyalty. But when I reviewed the materials relevant to the Oberle and Gradel cases, and read the decision of the federal district court in Murphy v. Local 18, International Union of Operating Engineers, 99 LRRM 2074 (N.D. Ohio 1978), I became convinced that Local 18 had departed so far from the principles that have given labor unions their greatness that I had to become involved. Today I am here to share with you the information which brought me to this decision. In addition, I would like

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to bring more recent relevant information to your attention and suggest the need for further investigation and legisla­tive reform.

II.

It is important for this Committee to be aware that Local 18 has a long and unfortunate history. Significantly, the McClellan Committee made the following findings:

Within the ranks of United States labor the men who handle heavy equip­ment form a distinct elite. On their skill and efforts depend our giant con­struction projects: our highways, bridges, subways, great buildings, mili­tary bases, atomic plants -- all the many massive engineering feats essential to our national growth.

It would seem a foregone conclu­sion that any union made up of men so intimately a part of the mainstream of American progress would itself embody every advance achieved by the labor move­ment to date. This expectation is, how­ever, at painful variance with the facts. Of all the unions subject to committee inquiry over the past year, none has proved more backward, more indifferent to the changing times, more incredibly feudal, than the International Union of Operating Engineers.

Under a constitution, unworthy of the name and, even so, seldom observed except in the breach, IUOE members have dwelt in a state of servitude scarcely imaginable in the midst of a democratic society....

The hearings of this Committee con­cerning the activities of the Operating Engineers Union clearly demonstrated the lack of democratic procedures within the union and exposed to public view the ruth­less ends to which the union's leadership

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will go to stifle any semblance of demo­cratic action. Interim Report, Select Committee on Improper Activities in the Labor or Management Field, United States Senate, 85th Congress, 2d. Sess., Report No: 1417, March 24, 1958 at 371, 437 (emphasis added).

Apparently, neither the censure of the McClellan Committee and the accompanying unfavorable publicity nor the passage of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. E 401, et. seq., in 1959 has had any deterrent effect upon Local 18 of the International Union of Operating Engineers. Thus, in 1971 the Sixth Circuit Court of Appeals affirmed a decision of the United States District Court for the Northern District of Ohio setting aside a Local 18 election of union officers as void and ordering a new election. The Sixth Cir­cuit held that Local 18's restrictive eligibility rule for candidates for union office precluded the candidacy of over 60% of the union's membership. The Sixth Circuit noted suc­cinctly, "To sell the right to run for union office ... is patently undemocratic." Hodgson v. Local Unions 18, 18A, 18B and 18C, International Union of Operating Engineers, 440 F. 2d 485, 488 (6th Cir. 1971).

In NLRB v. International Union of Operating Engineers, Local 18, Soo F. 2d 48 (6th Cir. 1974), aff'g 205 NLRB 146 (1973) the Sixth Circuit Court of Appeals affirmed a finding that Local 18 had engaged in the unlawful practice of threat­ening dissident members with loss of employment opportunities and other reprisals because they opposed incumbent union lead­ership.

In Shimman v. Grothaus, Civil No. C73-364 (N.D. Ohio 1975), aff'd. sub. nom., Shimman v. Frank, 625 F. 2d 80 (6th Cir. 1980), Judge Young found that "Local 18...had determined that it would be necessary to use physical violence to beat the members of District 2 [of Local 18] into submission." Id. at 10. Judge Young further found:

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The conclusion is inescapable that when all other means of silencing dis­sent had failed, blood was made to flow in the union hall. After that... plaintiff and Mr. Oberle have not returned to the union meetings. The dissenters were finally cowed into silence. The freedom and democracy which § 411 was enacted to protect has been effectively destroyed in District 2 of Local 18]. Id. at 6.

In Murphy v. Local 18, International Union of Operating Engineers, 99 LRRM 2074 (N.D. Ohio 1978), Judge Thomas Lambros, in an insightful and perceptive opinion which deserves to be read in its entirety, surveyed the illegal policies and prac­tices of Local 18 and its officers and business agents, several of whom remain officers and business agents of Local 18. The following findings of fact are of particular relevance here:

43. In a drastic effort to com­pel dissidents of Local 18 to submit to hall group practices, rebel members have been threatend and subjected to as­sault and physical violence.

Id. at 1086.

58. Since 1971 operating engineers have not been permitted to distribute any literature, political or otherwise, on union property. Id. at 2089-90 (footnotes omitted).

72. The inherent subjectivity of the [job] referral system has enabled the members of the incumbent administration to manip­ulate employment referrals in such a fashion as to benefit supporters and punish dissi­dents. This manipulation has been evidenced by the operation of the referral itself, and by the statements of various members of Local 18's Administration. Id. at 2098.

97. The evidence establishes the ex­istence of a conspiracy between certain de­fendants to surpress [sic] the actions of... the dissident movement. The existence of such conspiracy has been manifested in various acts and statements of the defendants which include,

but are not limited to:

a. The organized attempt to prevent the dissidents of District Two

    from addressing the membership at district meetings.

b. The coordinated violence directed at plaintiff and other dissidents.

c. Union financing of the defense of civil actions arising out of the above violence.

f. The manipulation of the referral system as to favor hall group members and punish dissidents.

g. The derogatory and often scatalogical comments directed toward dissidents by defendants. Id. at 2106.

Judge Thomas Lanbros, in addition to awarding William F. Murphy compensatory and punitive damages, also granted the following injunctive relief on July 18, 1978:

4. In order to ensure against future misuse of the referral system, it is ordered that in every district of Local 18:

c. Each district office shall compile a list of the work orders received each day and shall post said list for at least seven (7) consecutive days in a conspicuous manner in the district office, not less frequently than every one hundred twenty days....

d. Immediately prior to, and immediately following each district meeting, the referral deck shall be available to members for inspection and copying for a reasonable period of time. Mem­bers shall be entitled to inspect and copy the cards of those engineers before and after their own referral card, but shall not be entitled to handle the deck themselves. Id. at 2135-36.

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Local 18 made no effort to comply with this Order until after the plaintiff, William F. Murphy, filed a motion for contempt sanctions and the federal district court entered a Post-Judgment Memorandum Opinion and Order four years later on October 14, 1982.

It would be difficult to credit any claim that this pattern of misconduct and illegal activities extending over a decade is too dated to be of interest to this Committee. This is especially true because Local 18's present officers held positions of responsibility during this period. Thus, for example, Frank J. Miller, Business Manager of Local 18, has been an officer of Local 18 since 1968 and prior to becoming Business Manager was Vice-President of Local 18 since 1977. Prior to becoming Vice-President of Local 18, Steve J. Mayor served as Recording-Corresponding Secretary since 1976. He has been an officer of Local 18 since 1965. Paul Knott is the Financial Secretary of Local 18 and has held this office since 1976. He has been an officer of Local 18 since 1972. Jessee Buckle, the Treasurer, has held this position since 1978 and has been an officer of Local 18 since 1965. This history could be continued, but I believe the point has been made. Before this Committee credits any claim that "new union leadership" has corrected past abuses it should inquire as to what specific steps Local 18's officers took during the past decade to protest the illegal activities which have been documented here.

Moreover, contrary to Local 18's protestations it is clear that abuses continue to this very day. William F. Murphy was a duly nominated and qualified candidate to be a delegate from Local 18 to the 1984 International Convention. This election, held during the past month, was characterized by violations of Judge Lambros' Order in Murphy v. Local 18, supra. These violations and election abuses are detailed in Mr. Murphy's February 21, 1984 letter of protest to Frank J. Miller, Business Manager of Local 18, and Max M. Kendrick, Chairman of Election Committee of Local 18 (see attached).

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They include the denial of the right to speak to Local 18 members, denial of the right to inspect union membership lists, and the frustration of the candidate's right to have an observer present to witness the mailing of ballots.

In addition, we believe that as recently as 1982 the officers and members of the Executive Board have repeatedly violated their fiduciary duties to Local 18 under § 501 of the Labor-Management Reporting and Disclosure Act. Although we have no right to discovery inasmuch as no lawsuit has been filed and Local 18 has volunteered little information, we nevertheless have significant evidence of improper and unlaw­ful activities. These suspected financial abuses are outlined in the letter from Ervin A. Shimman to Frank J. Miller, Local 18 Business Manager, and Mr. Miller's response to that letter. (See attached). While the number of individuals and the exact amount involved may be unclear, it is undisputed that Local 18, contrary to its By-Laws and Article XXIV, Subdivision 7, continued to carry on its books and records numerous individuals who should have been suspended for non-payment of dues and thus obligated itself to the International for the per capita tax for these individuals. Furthermore, unless these individuals seek reinstatement Local 18 has no lawful means to recapture these funds. We believe that the improper carrying of these members has caused a loss to Local 18 in the neighborhood of $300,000. Frank J. Miller does not even claim membership approval for this action.

In addition, Local 18 made a political campaign contri­bution of $15,000 to Richard Celeste, Governor of the State of Ohio. This contribution is documented on page 138 of Richard Celeste's "pre-general election report," dated September 2, 1982, on file in the Ohio Secretary of State's office. While not violative of federal or state criminal law, we believe that this contribution was unlawful because it was not specifically authorized by the union membership. Although Mr. Shimman has requested copies of the minutes of union membership meetings, this request has not been honored. Other

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suspected instances of financial abuses are outlined in Mr. Shimman's letter to Frank J. Miller. Absent the right of dis­covery we have been unable to further document these matters at the present time.

Overall, the evidence presently available indicates a pattern and practice of improper and unlawful activities by Local 18 and its officers and agents of mammoth proportions.

III

The most outrageous abuse of Local 18 and its officers and agents has thus far only been mentioned in passing. This abuse is the discriminatory manipulation of the union's em­ployment referral system at the union's exclusive hiring hall in order to benefit in an unlawful manner favored union members and to injure disfavored union members and opponents of the incumbent administration. There can be no doubt that Local 18 has systematically practiced such referral discrimination for over a decade. Judge Thomas Lambros made such a finding of fact in Murphy v. Local 18, 99 LRRM 2074 (N.D. Ohio 1978):

72. The inherent subjectivity of the referral system has enabled the members of the incumbent administra­tion to manipulate employment referrals in such a fashion as to benefit supporters and punish dissenters. This manipula­tion has been evidenced by the operation of the referral itself, and by the state­ments of various members of Local 18's Administration. Id. at 2098.

79. Business Representatives of District One [of Local 18] have manipu­lated the referral system in order to refer relatives to employment ahead of more experienced, better qualified engi­neers. Id. at 2099.

87a. From 1969 to date, Kenneth Delaney, a member of the District Two hall group, frequently witnessed District Two Business Agents manipulate the refer­ral system in order to refer favored

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engineers to employment.

b. Business Agent Harley Salis­bury would pass over the cards of those engineers at the top of the referral deck until he came upon the card of a favored engineer. Salisbury would then dispatch the engineer of his choice and write "called and not at home" on the cards of the by-passed engineers.

c. In a similar fashion Business Agent Robert Bowes would telephone the engineer at the top of the referral deck, let the phone ring once, hang up, write "called not at home" on the respective engineer's registration card, and then continue on in succession in the same fashion until coming upon the card of a favored engineer. Bowes would then dispatch such engineer.

d. Business Agents would "back date" the registration cards of favored engineers in order to raise such engineers' refer­ral priority.

………

f. Business Representatives of District Two have manipulated the refer­ral system in order to refer relatives to employment ahead of more experienced, better qualified engineers. Id. at 2103.

97. The evidence establishes the existence of a conspiracy between certain defendants to suppress the actions of plaintiff [Murphy] and the dissident movement. The existence of such conspiracy has been manifested in various acts and statements of the defendants which include but are not limited to:

• •

f. The manipulation of the refer­ral system as to favor hall group members and punish dissidents. Id. at 2106.

The case of William Murphy is especially compelling. Al‑

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though the average member of Local 18 works 1,200 - 1,400 hours per year, once Murphy became an opponent of the incumbent officers of Local 18 his referrals quickly dwindled. In 1971 he worked only 207.5 hours and he was not referred to a single job in 1972; in 1973 he worked only 85.5 hours. In 1974, 1975, 1976 and 1977 he was not referred at all. He worked only 4 hours in 1978 and not at all in 1979. Although it may be possible to argue about specific isolated events during this nine-year period it is clear that the chances of Mr. Murphy's work record (see attached) being the result of a fair operation of the referral system are no greater than the chances of being struck by Haley's Comet.

Glenn Oberle became a member of Local 18 in 1946 and at all times relevant here was fully qualified for the presti­gious classification of master mechanic. Judge Thomas Lambros, in Murphy v. Local 18, International Union of Operating Engineers, 99 LRRM 2074 (N.D. Ohio 1978), made the following findings of fact concerning Mr. Oberle:

82a. In the 1971 state-wide election Oberle ran for Vice-President on the dissident slate against [John] Frank [then District Representative of District Two of Local 1].... Id. at 2101.

4O. From 1971 until as recently as 1975 the meetings of District Two have been accented by the planned vilification of rebels by members of, the hall group....It is clear that this verbal harassment was intended to be, and functioned as an instrument of control. Specific instances of the tactic are discussed below:

......

b. District Two meetings, June-August, 1971. Frank called Glenn Oberle,..., a "commie," and declared to the membership that any engineer supporting Oberle

_________

¹.The trial in Murphy began on February 26, 1976. Thus no implied finding that such tactics are no longer being perpetrated can be fairly drawn from Murphy.

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would be thrown out of or starved out of the union.

........

c. Election tally, District One offices, August, 1971. Frank denounced Oberle, and stated he would starve Oberle and the Shimman brothers out of the union.


........

e. District Two meeting, October, 1971. Frank villified Oberle in scatalogical language because Oberle had been selected as master mechanic by the Braun Construction Company...

.....

f. District Two meeting, Decem­ber, 1971.

1. Frank called Oberle a "fool" and stated "these small minds must be destroyed."

2. James Grothaus, an Executive Board member, accused Oberle of incest; Frank, presiding officer, concurred in these comments.

 

........

5.  Apprentices were told by Ray Frankhouse how to vote on certain issues. Those voting contrary to instructions were told by Frankhouse, State Apprentice Coordinator, not to ask for help from thehall. Shortly after this meeting, Frank commented that apprentices were tantamount to slaves and should not oppose the union or they could be hurt. Id. at 2085.

Judge Lambros' Order documents Local 18's refusal to honor the Braun Company request for Oberle as master mechanic and a second request for a cherry picker job. D^esp^ite repeated efforts by Oberle to contact union officials he received no satisfaction. Thereafter Oberle filed charges with the NLRB which resolved the issue in his favor. "Despite the decision of the NLRB, Frank again refused to dispatch Oberle to the Braun

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job. Eventually, upon the advice of an NLRB attorney, Oberle reported to the Braun job without being dispatched by the District Two hiring hall." Id. at... . As the two letters (attached) to NLRB officials from Cary^-Cooper, Oberle's attorney, attest, this matter was never wholly resolved in a satisfactory manner due to the defiance of Local 18 and the neglect of the NLRB.

For the next decade Oberle was the victim of retaliatory employment referral discrimination by Local 18 and its officers and agents (see attached complaint). During the first four months of 1973 Oberle earned $8,024.22 working on the Braun Company as a result of NLRB intervention. Thereafter for the last eight months of 1973 Oberle earned only 2,049.02 through Local 18's employment referral system. Remembering that Oberle's skills were much greater than the average Local 18 member and that the average Local 18 member worked approxi­mately 30-35 weeks per year, Oberle's work record stands in marked contrast (see attached letter from Glenn Oberle):

Any attempt by Local 18 to relegate this data to the past should be given little credence in light of the fact that a substantial portion of the present leadership of Local 18 held union office during this entire period, supra at.........

Furthermore, the case of James Nevitz illustrates that employment referral discrimination is a way of life at Local 18. Mr. Nevitz became romantically involved with the daughter of Steve J. Mayor, Vice-President of Local 18, during the summer of 1978. Prior to that time he had no prior work experience as an operating engineer. At the urging of Mr. Mayor James Nevitz promptly registered with the Local 18 hiring hall. Nevitz and Mayor's daughter were married on November 18, 1978 (see

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attached marriage record). Mr. Nevitz apparently received very favorable treatment under Local 18's employment referral system, working steadily beginning in June 1978. Unfortunately, Mr. Nevitz and his wife had marital difficulties and were separated in January 1981 and ultimately divoreed (see attached divorce decree). Perhaps not coincidentally Mr. Nevitz was never referred for employment by Local 18 after March 1981. Overall, Mr. Nevitz's work and earnings records (see attached) show the following:

DATES

HOURS

Prior to 6/78

-0‑

6/78 - 6/79

1,523.50

6/79 - 6/8o

2.091.50

6/80 - 3/81

1,337.50

3/81 - Present

-0‑

The economic effect on Mr. Nevitz is graphically revealed by his earnings record (see attached Social Security Earning Information):

CALENDAR YEAR

EARNINGS

1977

$3,003.21

1978

$13,924.63

1979

$20,775.88

1980

$24,649.05

1981

$5,527.34

It is also profitable to compare the work record of Mr. Nevitz, whose work card was registered in the "B" deck with the work records of Mr. Murphy and Mr. Oberle, whose work cards were registered in the priority "A" deck. In 1980 Mr. Nevitz worked 2,091.50 hours. Even though no one in the "B" deck is to be referred until the "A" deck is exhausted Mr. Murphy worked only 80 hours by referral and Mr. Oberle worked only 13½ weeks, or approximately 550 hours.²

___________

^2. The comparison to Oberle may be somewhat inaccurate due to variance between service and calendar years. In any event, Oberle worked only 1,000 hours for all calendar year 1979

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Curiously, since Judge Thomas Lambrose entered his Order on October 14, 1982 requiring record-keeping of referral calls and posting of referral lists the normal operation of Local 18's hiring hall has changed dramatically. Prior to this Order most operating engineers were employed through Local 18's employment referral. In contrast, now virtually all employ­ment of operating engineers is the result of specific requests by contractors, thereby bypassing the referral process. The attached letter from Ervin Shimman to my colleague Alan Miles Ruben dated December 26, 1983 that Ray Frankhouse, an officer of Local 18, told a retired operating engineer that "the only way a man can go to work now is by being requested." This is confirmed by the job referral list postings. The attached lists for June 1983 and January 1984 are illustrative. Although we have no specific evidence at this time_, the danger inherent in the request method of employment is that "steering" by Local 18 officers of favored operating engineers is easily accomplished, very difficult to detect and almost impossible to remedy. Indeed, this is precisely the reason why Judge Lambros' Order (attached) specified:

2. No officer, business agent, employee, or other representative of [Local 18] shall, directly or indirectly, whether personally or through intermediaries, sug­gest, recommend, or otherwise designate to any employer or representative of an employer, that any individual or individuals be employed in any job subject to being filled through the aforesaid referral system. This provision shall in no way prohibit any representative of [Local 183 from, upon unsolicited request, giving his opinion of the abilities of any registrant based solely upon personal knowledge of registrant's work experience.

3. No officer, business agent, employee, or other representative of [Local 18] shall directly or indirectly, through others, recommend, suggest, or otherwise indicate to any employer, or representative of that em­ployer, that any registrant not be requested or employed, or, if such registrant has been dispatched to work, that his employment be terminated.

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IV.

Exclusive union employment referral systems serve an important societal function, especially in those trades where employment is normally seasonal or otherwise of limited duration. The union hiring hall facilitates employment for unemployed workers and provides a ready source of skilled labor for employers. Historically, the union hiring hall was a socially beneficial replacement for a system which was disorganized, inefficient and frequently corrupt. Union employment referral systems, however, also have an inherent potential for abuse, favortism and corruption. In Local 18, International Union of Operating Engineers, this potential for abuse and favortism has become a reality. There is evidence that these abuses are not limited to Local 18. See, e.^g., Vandeventer v. Local Union No. 513, Internation Union of Operating Engineers, 579 F.2d 1373 (8th Cir.), cert. denied, 439 U.S. 984 (1978); Keene v. International Union of Operating Engineers, 569 F.2d 1375 (5th Cir. 1978). Moreover, such employment referral discrimination, when it occurs, predictably often disadvantages blacks, women and other minorities dis­proportionately. See UNITED STATES CIVIL RIGHTS COMMISSION REPORT ON DISCRIMINATORY PRACTICES BY REFERRAL UNIONS (1976), quoted in A. SMITH, C. CRAVER & L. CLARK, EMPLOYMENT DISCRIMINA­TION LAW 743-46 (2d ed. 1982).

It is intolerable that no federal statute explicitly addresses itself to this problem of discriminatory administra­tion of union employment referral systems. Neither the courts nor the relevant federal agencies have enunciated any con­sistent or coherent solution to this problem. Where abuses exist it is the union and its officers which perpetrate them. Employers accept such abuses silently because of ignorance, apathy or the fear of retaliatory union action. Simply stated, the union member has been abandoned and is friendless pre­cisely when assistance is needed the most. Indeed, we cannot even rely on the union member who has been victimized by a discriminatory union referral system to speak on his own behalf.

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Often the union member is unaware of the existence of such discrimination because it is practiced so subtly. More fre­quently, the union member is aware only that the discrimina­tion exists and favors other members but is unable to identify who suffers. Even the union member who knows that it is he who is suffering faces a difficult and lengthy battle to prove the discrimination. It will be a rare and courageous individ­ual who actually challenges the union leadership knowing that he is dependent upon their good will for future employment referrals, and may face years of unemployment while his case is pending in administrative agencies or the courts.

I would respectfully submit that federal legislation is necessary to correct the intolerable abuses which now exist. The right to fair and equitable employment referral opportunities is one of the most fundamental rights of working Americans. No longer can this basic human right remain at the mercy of the unregulated caprice of those who would subvert union employment referral systems for personal gain or to perpetuate themselves in power. In addition to concern for the dignity and well­being of the union members wholly dependent upon the employment referral systems, legislation on this issue is necessary in order to make the promise of union democracy contained in the LMRDA a reality. No right of free speech or electoral participation within a union ^truly can exist where union officials wield the weapon of unfettered control over job referral opportunities. Legislative reform is essential for the pro­tection of union democracy and working Americans.

Presently no effective federal legislation requires that union employment referral systems be operated openly and subject to the scrutiny of the union members who rely on such systems for their livelihoods. It is true that the United States Department of Labor, in § 110.320 of the LMRDA Inter­pretative Manual, has declared:

All supplements which are incorporated by reference into a collective bargaining agreement become a part of it. Thus, where an agreement makes reference to a work referral system which the union is to administer, and further sets up terms, conditions and classifications of employees

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which the union is obliged to follow in referring applicants for jobs, the referral list is incorporated by refer­ence into the basic agreement. There­fore, being a part of the basic work­ing agreement, the referral list should be made available pursuant to section 104.

Unfortunately, this policy is inadequate to safeguard the rights of union members. Moreover, the only remedy presently available for breach of this limited right of inspection of referral lists is injunctive in nature. What is needed is a criminal statute, or perhaps privately enforce­able civil penalty statute, which mandates the following:

1. The list of union members presently available for employment ("referral list") must be available for inspec­tion by all union members at all times during normal business hours;

2. The public posting of all job orders, the date and time received by the union, the name of the individual referred to the job, the date the individual registered with the union, and the date and time of the referral;

3. The maintenance at the union hiring hall of a sufficient number of tele­phones specifically designated for referral use equipped with telephone recording devices in order to create a permanent record of job orders and referrals.

4. Record-keeping requirements to insure the maintenance of referral records for a reasonable period of time.

It is axiomatic that "sunshine is the best disinfectant." It is doubtful that employment referral discrimination could long survive if the process were to be made subject to con­tinuous and ongoing scrutiny by those most directly affected by its operation.

The requirement that union employment referral systems be operated openly and subject to the scrutiny of union mem­bers will only be effective if it is coupled with an effective

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legislative prohibition on referral discrimination. Presently, no federal statute explicitly prohibits the discriminatory operation of union hiring, halls. The Labor-Management Reporting and Disclosure Act, 29 USC § 411, et. seq., has been used to remedy referral discrimination in a few cases, but it is only applicable when the discrimination has been perpetrated with the wrongful intent to "discipline" a union member for exercising rights guaranteed under the LMRDA. See, e.g., Vandeventer v. Local Union No. 513, International Union of Operating En^gineers, 579 F. 2d 1373 (8th Cir.), cert. denied, 439 U.S. 984 (1978); Keene v. International Union of Operating Engineers, Local 624, 569 F.2d 1375 (5th Cir. 1978); Cooke v. Orange Belt District Council of Painters No. 48, 529 F.2d 815 (9th Cir. 1976); Mur^phy v. Local Union 18, International Union of Operating Engineers, 99 LRRM 2074 (N.D. Ohio 1978). In other words, the LMRDA itself was .not intended to prohibit employment referral discrimination but to guarantee certain rights to union members, such as free speech and electoral participation. Many victims of employment referral discrimi­nation have no remedy under the LMRDA either because the union member is unable to prove the wrongful motivation of union officials or the causal connection to the exercise of LMRDA-protected rights. Neither does an adequate remedy exist under the duty of fair representation imposed upon unions by the National Labor Relations Act, 29 U.S.C. § 185, et. seq. See generally, Bastress, Application of a Constitutionally-Based Duty of Fair Re^presentation to Union Hiring Halls, 82 W. Va. L. Rev. 31, wherein the author concluded that "[t]he [NLRB] 's efforts to deal with the abuses have not been adequate." Id. at 83. Moreover, the Act itself does not provide adequate remedies for union employment referral discrimination. Thus, as a general matter, it is unclear whether mere negligence is sufficient to constitute a NLRA violation or whether proof of bad faith is required. See, e.g., Note, Determining Standards for a Union's Duty of Fair Representation: The Case for Ord­inary Negligence, 65 Cornell L. Rev 634 (1980). Moreover, the NLRA makes no provision for personal liability for wrongdoing

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union officials, no provision for punitive damages and no provision for the award of attorney fees to prevailing parties.

A federal statute which explicitly prohibits all employ­ment referral discrimination-by unions is urgently needed. To be effective such a statute must provide for the award of reasonable attorney fees to prevailing plaintiffs. Absent such a provision it is only conscientious law professors like Alan Miles Ruben and myself who will be financially able to undertake representation of union members who have been victimized by employment referral discrimination. It is Significant. that Alan Ruben has received no payment for services rendered since 1973 in the Murphy case and neither of us has received any payment for services rendered in the Oberle and Gradel cases since 1980. Under present federal statutes no attorney fees will ever be received unless a violation of the LMRDA or the federal civil rights act, 42 U.S.C. § 1985(3) is also established. The award of attorney fees under such a statute is justified by the same principles of justice and equity which have led to the award of such fees under the LMRDA. See Hall v. Cole, 412 U.S. 1 (1973).

In those cases where the union officials responsible for the operation of the employment referral system have acted with malice or reckless indifference to the right of the union member personal liability should be imposed on the officials and punitive damages should be awardable. Employment referral discrimination cases are particularly appropriate for punitive damages because such discrimination is often so subtle and easily. concealed that many violations will inevitably escape detection. Given union members' dependency on the referral system and their natural hesitancy to sue their union many other violations will remain unremedied. Under these circumstances true deterrence of employment referral discrimination can only be achieved by the allowance of punitive damages. Again the analogy to the LMRDA is instructive. It is now generally agreed that punitive damages are awardable for violations of the LMRDA. See, e.g., Cooke v. Orange Belt District Council of Painters No. 48, 529 F. 2d 815 (9th Cir. 1976); Int'l. Brotherhood of Boilermakers v.

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Braswell, 388 F.2d 193 (5th Cir.), cert. denied, 391 U.S. 935 (1968).

Finally, a statute prohibiting union employment referral discrimination should not require the exhaustion of intra-union procedures but instead merely timely and sufficient notice of claim to the union. Thereafter, unless the union favorably responds within a reasonable short period of time by awarding backpay compensation to the member access to the court should be immediately available. In an employment referral discrim­ination case time is of the essence to all parties. Unless the union member is able to secure swift relief long-term unemployment may follow. This is especially true, as is often the case, when the union removes the member's referral card from the deck pending resolution of the claim. For the union swift resolution is necessary to prevent the accumulation of a sizable backpay obligation. Simple justice requires that any limitation period on claims not begin to run until after discovery of the facts supporting the member's claim. On the other hand, fifteen days (but certainly not more than thirty days) would be an adequate time for a union response.

Recent events in Poland have reminded us in a vivid fashion that free and democratic unions are the backbone of a free and democratic nation. I hope that in America fair and equitable union employment referral systems, an essential element of free and democratic unions, can be achieved.

Thank you.

Laborers for JUSTICE© 1997-2006 All Rights reserved. Not for republication on the internet without permission. 
Jim McGough, Director
2615 West Peterson Avenue
Chicago, Il 60659
773-878-1002 (tel)
773-409-1503 (eFax number)
laborers@comcast.net

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