also establishes a procedure by which Local 401's general fund is reimbursed for a portion of the wages paid to Local 401 employees who perform administrative and maintenance work for the training program. (Ex. D-7, at 6).
The employers' association and Local 401 are directly represented in the make-up of the Joint Apprentice Committee, however, neither the employers' association nor Local 401 has direct control over the Fund, its hiring of employees, its requirements for training, nor its general administration. Dougherty recommends individuals to be hired by the Fund as apprentice instructors, but Local 401 does not hire instructors for the Fund; the Trustees are empowered to and do perform that function. (Dougherty Dep. at 53-62; Ex. D-7, at 9).
The actions of a Joint Apprenticeship Training Committee and the liability of employers who mandatorily funded the committee and trade associations who appointed half of the members of the committee were at issue in General Building Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 73 L. Ed. 2d 835, 102 S. Ct. 3141 (1982). The Supreme Court discussed application of agency principles to a suit brought under 42 U.S.C. § 1981 and determined that neither the funding nor the authority to appoint half of the members sufficed to create an agency or employer-servant relationship between the committee and the entities which funded it and appointed its members. 458 U.S. 375 at 394, 73 L. Ed. 2d 835, 102 S. Ct. 3141.
The Fund at issue here is a distinct entity from Local 401, it has a separate tax payer identification number, (Dougherty Dep. at 34; Ex. D-3 & D-8), and is not controlled by Local 401. Contrary to plaintiff's contentions, the utilization of Local 401's employees for performance of administrative work for the Fund, pursuant to the Trust Agreement implemented by the committee half comprised of employer's association appointees, does not establish that Fund employees are employees of Local 401 for jurisdictional purposes either under an agency or a single entity theory.
Local 401's only direct control with respect to the Fund is in its authority to appoint three of the six trustees, and its authority concerning removal of those three appointees in accordance with the trust instrument. Although Local 401 employees perform some administrative duties for the Fund, in accordance with Fund procedures, the Fund is not the agent of Local 401 nor does it constitute a single entity with Local 401. The agency principles articulated in General Building Contractors Ass'n, Inc. and applied in the context of 42 U.S.C. § 1981 apply here as well.
Paul Jaroma, Rondal Couser, Tom Casey, Terry Moran, Larry Stewart, Frank Nebel, Craig Unger, and Bill Kassab, the Fund employees specifically listed by Ms. Shepherdson as Local 401 employees and Mr. Douglas, the coordinator, do not constitute Local 401 employees by virtue of their employment by the Fund. For jurisdictional purposes, those Fund employees cannot be counted as Local 401 employees in order to meet the statutorily required minimum. Unless the International's employees can be counted with employees of Local 401 for jurisdictional purposes, plaintiff cannot maintain her suit in federal court.
C. Relationship Between Local 401 and the International
No individuals are specifically identified as employees of the International as the parties assume that if the International's employees could be counted, the statutory minimum would be met. The actual relationship between Local 401 and the International is central to whether the International's employees can be counted. Plaintiff predicates her assertions that either the International and Local 401 comprise a single entity or Local 401 has an agency relationship with the International primarily on the language in the International's constitution. The International's constitution is the initial document establishing a relationship between the International and its affiliated local unions, and testimony by affidavit and deposition provides evidence of the actual relationship as well.
1. The Union Constitution
Dougherty stated in his affidavit that "Local 401, although chartered by the International, is an autonomous organization." (Dougherty Aff. at 3, filed Doc. No. 3, Ex. A); however, plaintiff rebuts this statement with her own affidavit and with citation to the International's constitution. Plaintiff argues that certain provisions in the constitution establish that Local 401 had an agency relationship with or constituted a single entity with the International.
In support of her contention, plaintiff cites the following portions of the constitution, which regulate the local unions as summarized:
Art. II, Sec. I, the International consists of an unlimited number of local unions; Art. IX, Sec. 10, the International President (President) has the power to suspend a local's membership for violation of the constitution; Art IX, Sec. 12, the President may for examination take possession of books, papers, and financial accounts of a local; Art. IX, Sec. 13, the President may suspend any officer of a local for delinquency or dereliction of duty, or for failure to comply with the President's orders; Art. XII, Sec. 7, on unanimous vote, the International's General Executive Board (Board) may place a local under direct supervision or revoke its charter to correct corruption or financial malpractice, to assure compliance with collective bargaining agreements, or to restore democratic procedures; Art. XII, Sec. 10, the Board may establish the system of accounting and auditing, and may promulgate regulations for custody of local funds and property; Art. XXI, Sec. 4, locals must enact governing bylaws, and those bylaws may not contravene the constitution and must be approved by the Board; Art. XXI, Sec. 6, on a local vote to withdraw from the International, the minority retains the funds, property, and charter, and if there is no minority vote, the funds, property, and charter revert to the International; Art. XXI, Sec. 13, on suspension, dissolution, or revocation of a local, the property, books, charters, or funds of the local shall be forfeited and forwarded to the International; Art. XXI, Sec. 20, International procures bonding for local, which runs in favor of International in trust; Art. XXI, Sec. 24, local books, records, and accounts are open for International auditing; Art. XXI, Sec. 29 & 29(a), International involvement in negotiating, drafting, and approving working rules and in negotiating agreements; Art. XXIII, Sec. 1-10, mandatory local establishment of apprenticeship training; Art. XXIV, Sec. 1, requiring financial reporting by local financial secretaries to International Financial Secretary; Art. XXVI, Sec. 1-Sec. 20, union offices, duties of those offices, and qualifications and procedures for obtaining those offices; and Art. XXVII, International Pension plan for local employees and officers.
(Pl.'s Brief in Opposition to Mot. to Dismiss, filed Doc. No. 4, at 5-7; Constitution, filed Doc. No. 3, Ex. 2).
Although defendants rely on Childs v. Local 18, International Brotherhood of Electrical Workers, 719 F.2d 1379 (9th Cir. 1983), to support their contention that the employees of the International cannot be counted with Local 401 employees, plaintiff considers that case distinguishable, submitting that the International "controls every aspect of the Defendant Local 401's business, with the exception of the actual hiring of each and every employee." (filed Doc. No. 4, at 8). Plaintiff attempts to support this absolute control theory by pointing out that Local 401 employees participate in the International's pension plan and that the International arranges for required bonding of Local 401 members and employees. (filed Doc. No. 4, at 8).
In light of these provisions in the constitution, plaintiff considers this case distinguishable from Childs v. Local 18, International Brotherhood of Electrical Workers, 719 F.2d 1379 (9th Cir. 1983), and argues that the "International controls every aspect of the Defendant Local 401's business, with the exception of the actual hiring of each and every employee." (Pl.'s Brief in Opposition to Mot. to Dismiss, filed Doc. No. 4, at 8). Even in consideration of the mandated structure governing the locals as promulgated by the International in its constitution, plaintiff has not established that Local 401 is either the agent of or a single entity with the International.
Proper analysis focuses more on the reality of the control, not necessarily the number and structure of the International's "regulations" that govern maintenance of a local charter. The constitution is better viewed as providing a structural framework for charters of the International, it does not, however, establish that for purposes of Title VII, the International exerts control over Local 401. The admittedly substantial list of regulations does not provide for day-to-day control of operations, nor does it provide, even theoretically, for the International's input into decisions to employ or terminate employees such as Ms. Shepherdson, central to the present case.
Under certain scenarios, the International may exert substantial if not complete control over Local 401. Those scenarios, as enumerated in the International constitution, require egregious circumstances which call for the International's revocation or suspension of Local 401's charter, or the International's supervision of the local. As acknowledged by defendant Dougherty, as a result of charter revocation or financial misconduct, the International could temporarily take control of Local 401. (Dougherty Dep. at 74-76, filed Doc. No. 10, Ex.). Mere contingencies, however, do not establish the International's actual control over Local 401, particularly with respect to employment and personnel decisions. The constitution does not address anywhere the International's potential input into Local 401's employment decisions. Moreover, Ms. Shepherdson does not contest that the International utterly lacked involvement in the employment and personnel decisions of Local 401.
Although Local 401 is clearly affiliated with the International and considered by the International to be a "subordinate body," Local 401 is an autonomous organization. Liability for the alleged conduct of Local 401 and Mr. Dougherty clearly cannot be imparted to the International by virtue of the language in the International Constitution, nor can Local 401 be considered a single entity with or agent of the International.
2. Shepherdson's Affidavit
Ms. Shepherdson stated in her affidavit that:
at the close of each business day, Local 401 had to close its financial books with Defendant International Association of Bridge, Structural and Ornamental Iron Workers ("International") via communicating by computer an accounting of Local 401's receipts of monies into its general fund for each day. . . . As an employee of the Local 401, I was a member of a pension fund maintained by the International for subordinate local union employees. . . . Based upon my actual knowledge through telephoning or otherwise corresponding with the International, . . . the International employed at least 15 persons for each working day of at least twenty calendar weeks in 1991.
(Shepherdson Aff. PP 13-15, filed Doc. No. 4, Ex. A).
Plaintiff's statements fail in furthering her argument that the International controls Local 401. As financial secretary treasurer, business representative, Dougherty's job responsibilities included the day-to-day management of Local 401. (Dep. at 6-7). This day-to-day management, as supported by plaintiff's own statements, shows that Local 401 acts independently from the International in hiring, supervising, and firing its own employees.
The International fails to exhibit any indicia of a controlling entity as provided in the case law and the NLRB test as adopted by several appellate courts. The International did not take part in the decision to hire or fire Ms. Shepherdson, or to hire the other employees of Local 401, and played no role in Dougherty's alleged misconduct which forms the basis of Ms. Shepherdson's suit. Therefore, this court lacks subject matter jurisdiction over plaintiff's asserted claim against the International due to the total lack of International involvement in the alleged discrimination and the lack of an employer-employee relationship between the International and Ms. Shepherdson.
The absence of the International's influence or control over Local 401 decisions prevents a finding that the International is a single entity with Local 401 or that the International and Local 401 have an agency relationship. (Mem. in Support of International's Mot. for Judgment, filed Doc. No. 9, at 11). Plaintiff did not establish that the International employees or the Fund employees should be counted as Local 401 employees in order to satisfy the jurisdictional threshold. The term "employer" as used in the statute and case law does not here encompass the International or the Fund, directly, or by way of agency or single entity theory, and Local 401, the actual employing entity, on its own did not employ directly the requisite fifteen employees. Therefore, plaintiff's Title VII claim against Local 401, Dougherty, and the International must be dismissed for lack of subject matter jurisdiction.
VII. INTERNATIONAL'S MOTION FOR SUMMARY JUDGMENT
The International's motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) and in the alternative for summary judgment pursuant to Federal Rule of Civil Procedure 56, (filed Doc. No. 9), is governed by a standard different from that governing a 12(b)(1) motion. Although I have determined, sua sponte, that plaintiff's claim against the International will be dismissed for lack of subject matter jurisdiction, I will take this opportunity to separately address the specific motion filed by the International and the additional material filed in support of that motion.
The International maintains that because it never employed plaintiff in any sense, it cannot be held liable for the alleged conduct of Local 401 and Dougherty. Further, the International argues that "the passive involvement of an unnamed International Association Vice President alleged in the complaint cannot as a matter of law support any claim against the International." (International's Mem. in Support of Mot. for Judgment, filed Doc. No. 9, at 2). Although afforded ample opportunity, plaintiff has filed no pleading, brief or other response to the International's motion for judgment. (filed Doc. 9). The order of December 23, 1992, (filed Doc. 6), permitted discovery on all jurisdictional motions to continue until March 30, 1993, and provided that any additional submission could be filed by April 15, 1993. Plaintiff has filed nothing of record since December 15, 1992, when she filed the brief in opposition to Local 401's motion. (filed Doc. 4). On May 10, 1993, the International filed a motion entitled, "Motion of Defendant International Association for a Ruling Granting Uncontested Motion for Judgment on the Pleadings or, in the Alternative, for Summary Judgment," (filed Doc. No. 11), in which the International asserts that pursuant to Local Rule 20(c) I should grant its motion for judgment as uncontested.
Federal Rule of Civil Procedure 12(c) provides:
If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Fed. R. Civ. P. 12(c). Affidavits, deposition testimony, and exhibits appended thereto, being matters outside of the complaint, have been presented and considered in reaching a decision on the International's motion, and plaintiff has been given reasonable opportunity to respond to the International's motion for judgment on the pleadings and in the alternative for summary judgment. Therefore, I will rule on the International's alternative motion for summary judgment.
A motion for summary judgment is appropriate only when there is no genuine issue of material fact, and one party is entitled to judgment as a matter of law. Williams v. Borough of West Chester, 891 F.2d 458, 463-64 (3d Cir. 1989). In a motion for summary judgment, the court may examine evidence beyond the pleadings. The court must always consider the evidence, and the inferences from it, in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987); Baker v. Lukens Steel Co., 793 F.2d 509, 511 (3d Cir. 1986). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). For a dispute to be "genuine," a reasonable jury must be able to return a verdict for the non-moving party. Anderson, 477 U.S. at 248.
Affidavit of Leroy E. Worley
In support of its motion, the International submitted the affidavit of Mr. Worley, General Secretary of the International since February, 1989. (Worley Aff. P 1, filed Doc. No. 9, Ex.). Mr. Worley acknowledged that the International constitution governed the operations of the International and its relationship with affiliated local unions. (Worley Aff. P 4).
He further described the relationship between the International and Local 401, stating that the affiliated local unions
are autonomous bodies that largely conduct their own affairs without contact with or need for approval by the International Association. For example, each local union is entirely responsible for electing its own officers; hiring, supervising and firing its own employees; handling its own finances and property; and conducting its day-to-day operations. The International Association plays no role in these decisions by local union officers and members.
(Worley Aff. P 5). Moreover, Mr. Worley maintained that the International had no role in hiring or discharging Ms. Shepherdson. (Worley Aff. P 6). This assertion is nowhere disputed by plaintiff, and in fact plaintiff states that she was hired by Local 401. (Shepherdson Aff. P 2, filed Doc. No. 4, Ex. A).
Ms. Shepherdson's Complaint & Affidavit
Although Ms. Shepherdson did not file any response to the International's motion for summary judgment, she did file an affidavit in response to Local 401 and Dougherty's motion to dismiss, and asserted argument in her response to defendants' 12(b)(1) motion applicable to the International's motion for judgment. Plaintiff also filed a copy of the International's Constitution, as did the International. (filed Doc. No. 4, Ex. B; International's Mot. for Judgment, filed Doc. No. 9, Ex. A to Worley Aff.). Even considering plaintiff's arguments and previously filed affidavit in ruling on the International's motion for summary judgment, the International is entitled to judgment as a matter of law.
Ms. Shepherdson's affidavit provided little information concerning the International. Her complaint alleges that Local 401 hired her, with no mention of the International taking part in her employment. (Complaint, P 9). Other than bald assertions that the International controlled Local 401 based on the International constitution and on the fact that she reported financial information to the International, her only allegation against the International is that she informed an unnamed official of the International about Dougherty's harassment of her.
The lone allegation with respect to International's involvement concerning the alleged sexual harassment was that "plaintiff advised a Vice President of Defendant International . . . of the nature of the sexual harassment by Defendant Dougherty and of her objection to it." (Complaint, P 13). Any inaction on the part of an unnamed International vice president does not render the International liable for the allegedly discriminatory acts of Local 401 or Mr. Dougherty. Cf. Brenner v. Local 514, United Brotherhood of Carpenters, 927 F.2d 1283 (3d Cir. 1991).
As previously discussed with respect to subject matter jurisdiction, plaintiff's bare allegation that the International controls Local 401 cannot be supported by the evidence. Although plaintiff did not respond to the International's motion for summary judgment, plaintiff's response to Local 401 and Dougherty's motion to dismiss asserts that the International's Constitution establishes the International's control over Local 401. This position based solely on the language in the International's constitution is insufficient to prevent summary judgment in favor of the International. There is no credible evidence suggesting the International controlled Local 401 or suggesting that the International had anything to do with the hiring, firing, or alleged harassment of Ms. Shepherdson. Likewise there is no genuine dispute as to Local 401's actual control over its affairs and as to Local 401's actual employment of Ms. Shepherdson. Moreover, defendant-International's motion for summary judgment is uncontested. Therefore, even if I did not dismiss the action against defendant International for lack of subject matter jurisdiction, the International would be entitled to summary judgment.
Plaintiff has failed to show that Local 401 had the requisite number of employees to establish jurisdiction over this action, and the motion by defendants, Local 401 and Dougherty, to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) will be granted. The International did not employ Ms. Shepherdson nor did it control Local 401 in such a manner as to render it liable under Title VII and therefore, the action against it will be dismissed. As there is no independent basis for jurisdiction over plaintiff's asserted state claims, this action will be dismissed in its entirety.
For the reasons stated in the accompanying memorandum, it is hereby ORDERED that the motion of defendants, Mr. Joseph J. Dougherty and Local Union No. 401 of International Association of Bridge Structural and Ornamental Ironworkers, to dismiss plaintiff's claim for lack of subject matter jurisdiction is GRANTED; plaintiff's claim against defendant, the International Association of Bridge Structural and Ornamental Ironworkers, is likewise dismissed for lack of subject matter jurisdiction. This case is dismissed in its entirety.
BY THE COURT:
Donald W. VanArtsdalen, S.J.
May 27, 1993