Jottings By An Employer's Lawyer

Friday, February 10, 2006

A Throwback to the Old Union Ways

Much has been said about the changing view of the labor movement on illegal aliens, from threat to hope for the future. Before that there was a similar view of unions as anti-women and anti-minority. Fortunately, I think that view, if it was ever accurate, is less true today.

Which gives Maalik v. International Union of Elevator Constructors, Local 2 (7th Cir. 2/9/06) an anachronistic feel. The district court found that Maalik had been prevented from obtaining certification as a mechanic (which would have entitled her to a substantial pay raise) because the master mechanics (and fellow union members) with whom she worked would not give her on the job training. The reason they would not train her -- she was a black woman. Notwithstanding its finding of discrimination, the district court feeling limited by an earlier decision of the 7th Circuit, found Title VII provided no remedy.

Not so, says Judge Easterbrook in an opinion that among other things:
  • provides an on line reference to the collective bargaining agreement under which Maalik worked, probably not a first but still a rarity in judicial opinions;
  • distinguishes the earlier opinion relied on by the district court noting that it involved terms and conditions of employment, for which an employer alone is liable, since it ultimately controls them;
  • distinguishes this because it involves a failure of the Union in its agency function (bargaining and implementing contracts) where it is liable for discrimination;
  • holds that although the Union was not vicariously liable for the discrimination of its members, it still was not permitted to turn a blind eye, and
  • like here, when it had failed to do all it could do to prevent discrimination, such as disciplining its members through the powers of fine or expulsion for their refusal to train, it could be liable.

Showing a real world understanding of what often controls union actions, Judge Easterbrook writes:

[The Union] appears to take the view that its members may do as they please, and that the local's leaders won't risk a threat to reelection by taking the side of any minority or stirring up intra-membership conflict.
His contrast with an employer's role is somewhat less insightful:
That is no more responsible -- and no more legally permissible -- than an employer's declaration that its staff may run the shop any way they like, and that blacks or women whose lives are made miserable must lump it. Both managers and union officials may prefer the quiet life, but Title VII requires action.
While I have no quarrel with the outcome as a legal matter or even as the "right" answer, I do think a union leader whose job, at least as a union official, is dependent on the vote of his constituents is in a different position than the manager whose position is generally not contingent on the views of those he supervises. That the union leader may be put in a harder spot because of the conduct of others is no excuse for discrimination, but it seems fair to at least note the difference.

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