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Peterson v. Lehigh Valley District Council

decided as amended may 5 1982.: April 8, 1982.

ARCHIE PETERSON AND ROBERT DOSTER, INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED
v.
THE LEHIGH VALLEY DISTRICT COUNCIL, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS, AN UNINCORPORATED LABOR UNION AND GENERAL CONTRACTORS ASSOCIATION OF LEHIGH VALLEY, INC. AND LOCAL NO. 368 (CARPENTERS) AND WALTER D. FRIES, INDIVIDUALLY AND AS BUSINESS AGENT FOR LEHIGH VALLEY DISTRICT COUNCIL, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS AND FRED MILLER, INDIVIDUALLY AND AS SHOP STEWARD FOR LOCAL NO. 368, AND JOHN LARSEN, INDIVIDUALLY AND AS APPRENTICE CO-ORDINATOR FOR THE LEHIGH VALLEY DISTRICT COUNCIL, CARPENTERS AND JOINERS



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Before Gibbons, Weis and Garth, Circuit Judges.

Author: Weis

Opinion OF THE COURT

In this civil rights case, two men hired as carpenter apprentices charge that they lost their jobs because a union, motivated by racial discrimination, refused them membership or admittance into an apprenticeship training program. The district court granted summary judgment to the union and contractor defendants because no applications for the program were being accepted at the relevant times and plaintiffs had failed to file the prescribed written forms. We vacate the judgment because there are disputed issues of fact with respect to discriminatory standards for union membership, and possible joint control of the training program by defendant contractor association.

Plaintiffs filed complaints in the district court against a contractors association, district council, and local union alleging violations of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1976), the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the Labor Management Relations Act, 29 U.S.C. § 185 (1976). After discovery, the district court granted summary judgment.*fn1 Plaintiffs appeal.

In 1972, the G & Q Drywall Company, a Cleveland-based organization, was awarded a construction subcontract for a public housing project in Allentown, Pennsylvania. Kenneth Barbarino, the company supervisor, asked Carpenters Union Local 368 to supply some minority journeymen or apprentices so that G & Q could meet affirmative action hiring requirements under the federally funded contract. When he was informed by the Local that no minority craftsmen were available, Barbarino contacted the local Opportunities Industrialization Center and hired two of their trainees, Peterson and Doster, as carpenter apprentices.

G & Q had agreed to abide by the collective bargaining agreement negotiated by the General Contractors Association of Lehigh Valley, Inc. and the Lehigh Valley District Council of the United Brotherhood of Carpenters and Joiners. As its name implies, the General Contractors Association is an affiliation of construction companies in the area. The Association, which G & Q joined, acts as the collective bargaining agent for its member employers. The District Council is composed of a number of carpenter unions, including No. 368, the local which had jurisdiction over the G & Q project. The collective bargaining agreement, which governs employment conditions, did not include an exclusive hiring hall agreement.

The General Contractors Association and the District Council had also established an apprenticeship training program, through which individuals could learn the carpentry trade and become members of the union. A joint committee determined whenever there was a sufficient employment demand in the industry to warrant admitting individuals to the program. When there was not enough work in the area, the training program was suspended.

Admission into the union was virtually guaranteed once an applicant was accepted into the apprenticeship program. Individuals who already possessed carpentry experience to qualify as journeymen could also be admitted to the union in that status without further training.

In March 1972, when Peterson was hired, Council business agent Walter Fries threatened to close down the job because Peterson had not been hired through the union. When advised that he might be violating a local ordinance, Fries relented and Peterson began to work. He remained on the job for the next fifteen days, despite harassment and racial epithets from his fellow workmen, but was discharged on March 16, 1972-allegedly for tardiness. Doster was hired about the time of Peterson's discharge and stayed until April, when he was laid off by G & Q, with the stated reason being lack of work.

On the record before it, the district court concluded that the plaintiffs had failed to establish a prima facie showing of discrimination, because neither demonstrated that he qualified for admission to the apprenticeship program or the carpenter's union. That is, both men failed to request entry into the apprenticeship program in the prescribed manner-by written application. Moreover, there were no openings in 1972, so applications were not accepted from anyone. As the court viewed the facts, G & Q was solely responsible for the plaintiffs' discharge, and no claim was asserted against it in this litigation because of a previous settlement.

Plaintiffs' claim against the union for lack of fair representation under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, also was found lacking in proof. The court reasoned that the collective bargaining unit consisted of "foremen, journeymen and apprentices" and, since the plaintiffs did not fall in any of those categories, the union owed no duty of representation. Moreover, since the collective bargaining agreement was between the Contractors Association and the District Council, not Local 368, the court concluded there was no contract obligating the local union to represent plaintiffs.

On appeal, plaintiffs contend that there are sufficient inferences which may be drawn from the undisputed facts, as well as positive evidence in the record, to demonstrate that defendants discriminatorily denied Peterson and Doster admission to the union and apprenticeship program. Defendants' conduct, it is also charged, caused plaintiffs' discharge from employment with G & Q. Finally, plaintiffs assert the union refused to represent them in their grievance against the employer.

To be entitled to summary judgment, a party must demonstrate that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). Any reasonable inferences from the facts must be resolved in favor of the party against whom the judgment is entered. Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 404 (3d Cir. 1981).

Summary judgment is a useful procedure when there is no dispute about the critical facts and it serves to eliminate the expense and delay of unnecessary trials. However, when there is a disagreement about the facts or the proper inferences to be drawn from them, a trial is required to resolve the conflicting versions of the parties.

Our role, then, is to explore the record to determine whether plaintiffs have support for their position and could prevail if the fact finder resolves issues of credibility in their favor. In that task here, we must appraise the facts in a manner most favorable to Peterson and Doster.

Essentially, plaintiffs contend that Barbarino, G & Q's supervisor, was eager to give them employment and an opportunity to learn the carpentry trade, but the union and its members on the job set out to frustrate those aims. The union business agent repeatedly ignored requests to produce applications for membership in the union or even to give information about the apprenticeship program to the plaintiffs, although admittedly he would have done so for white employees. The carpenters at the construction site refused to work with Peterson and Doster and thus forced Barbarino to find assignments where they could work alone. Ultimately, union-orchestrated tension at the construction site made it necessary for Barbarino to discharge plaintiffs on pretext, a fact which he candidly confessed. The verbal abuse and mistreatment to which plaintiffs were subjected by their co-workers and union officials belie defendants' denial of racial discrimination as the union's motive.

There is ample record support for plaintiffs' claims. In his deposition, Peterson said:

"Mr. Fries, I understand, was introduced as the business agent for Local 368 and he attempted to deny me the right to work on the job and admittance as an apprentice in that carpentry trade and as a member of that local and he refused to give me assistance in the rate of pay that I should receive or information regarding the apprenticeship program and he also stated that he would not be responsible for me on the job in any manner whatsoever, which at that time I felt was an-and in the tone he said it was almost a physical threat.... Mr. Fred Miller (the union steward) refused to give me any information or help me to obtain information on being involved in the apprenticeship program and entrance into the local union and he overtly denied and made racist remarks to the fact that he would not be responsible for any assistance into the union and that the only card that I would receive would be a deck of cards and some dice."

Barbarino's testimony also details the hostile reception and uncooperative attitude exhibited by the union. Although he asked Fries on several occasions to prepare papers for Peterson, and later Doster, Fries was always evasive, saying only "we are looking into it." Barbarino also unsuccessfully requested help from the general contractor, the contractors association, the minority compliance officer for G & Q, and someone from OIC to combat the racial problem at the site.

Peterson was finally told by Barbarino that he could no longer stand the pressures from the union and would have to let plaintiff go. Barbarino conceded that it was tension at the job site, not tardiness, that caused him to discharge Peterson and that no sanctions were applied to a white carpenter apprentice who was also late on occasion.

Barbarino testified that he was very pleased with Doster's work and progress. But since none of the white journeymen would work with him, Barbarino had to assign Doster to jobs that he could do alone and when there was no more solo work, was forced to let him go. Although part of the refusal was apparently due to racial animosity, the fact that Doster was not a union member also contributed to the problem.

The lack of union membership for Doster and Peterson, however, must be attributed to the council and the local. Article XIX of the Collective Bargaining Agreement provided that an apprentice who was hired and was not a member of the union, "shall as a condition of continuing employment, prior to but not later than the eighth day of employment, file an application for membership with the council, and pay the council a monthly permit until the application is processed." Despite repeated requests by Barbarino to prepare application forms, the union business agent and steward did not do so, although both plaintiffs remained on the job for more than eight days.

Excerpts from the deposition of business agent Walter Fries explain the procedure for entry into the union by an individual who secures employment before becoming a union member.

"Q. How do you become a member of the Carpenters Union?

A. Well, by being hired on the job by a contractor. It is the policy that after seven days, if the man asks for an application, we give him an application.

Q. In 1972, if an individual was employed by a contractor and after seven days he was doing all right by the contractor and you had no complaints and he asked for an application, would he have to go through any ...


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