A LOOK AHEAD * Disabled dockworkers have fought their union and maritime association for 10 years over alleged failure to help find them jobs. Now their case moves from . . . : On the Waterfront to Key Showdown in U.S. Courtroom

“An injury to one is an injury to all.”

For years that classic expression of worker solidarity was well-known to the rank and file at Local 13 of the International Longshore and Warehouse Union. It was emblazoned on the hats and jackets members wore to work in the ports of Los Angeles and Long Beach. It topped the letterhead of their union bulletins and was inscribed on a plaque at Local 13’s business hall in Wilmington.

When Chuck Fairchild of San Pedro joined the union, he accepted the motto as an article of faith. That was before a 40-pound box of bananas plummeted into the hold of a ship, hitting him in the head and leaving him with crippling spinal injuries. Now he regards the slogan as a symbol of hypocrisy.

For more than a decade, Fairchild and a group of similarly disabled dockworkers have doggedly pursued a series of legal actions against the U.S. Department of Labor and two of the waterfront’s most powerful institutions--the longshore workers union and the Pacific Maritime Assn., which represents 100 shipping companies operating on the West Coast and terminal operators at the ports of Los Angeles and Long Beach.

In that role, the association oversees the hiring of dockworkers, sets employment standards and handles payrolls, employee benefits and pension plans.

Now the injured workers are headed for trial in federal court, where they will press their claim that the association and the union have refused to comply with laws designed to help disabled workers and military veterans find and maintain employment.

Instead of accommodating the handicapped, the group contends that the union and employers force disabled dockworkers out of well-paying jobs and virtually bar the handicapped from applying for waterfront positions in the nation’s largest combined port.

The ongoing court fight already has convinced at least one federal judge that the Department of Labor has allowed tens of millions of dollars in government contracts to be awarded to shipping companies in apparent violation of federal laws requiring affirmative action plans that make provisions for the handicapped.

In December 1994, District Judge David V. Kenyon in Los Angeles evaluated the Labor Department’s investigation of complaints filed against the Pacific Maritime Assn. by more than 30 handicapped dockworkers, including Fairchild. Kenyon concluded that the agency’s probe, which found no wrongdoing, was “a sham.”

Kenyon said the association was subject to the nation’s affirmative action laws and ordered the Labor Department to do a thorough investigation. More than three years later, the agency has neither concluded the inquiry nor obtained an affirmative action plan from the association.

“The Pacific Maritime Assn., the union and the Department of Labor feel they are above the law. They believe they are unreachable,” said Fairchild, 56, who was kicked out of the union during the litigation. “They are quietly hoping we will go away, but we aren’t.”

Labor Department officials declined to comment on Kenyon’s ruling or on their continuing investigation into the dockworkers’ charges. Attorneys for the association and the union also refused to comment, as did top ranking officials of the union.

However, Terry N. Lane, a senior vice president of labor relations for the Pacific Maritime Assn., defended the association, saying it is not subject to federal affirmative action laws because it is neither an employer of dockworkers nor a federal contractor.

The longshore workers’ see-saw battle with the PMA and ILWU began in 1987. That year, a joint committee of the union and the maritime association officially changed the definition of two jobs--signal worker and marine clerk.

Signal workers direct the safe handling of cargo by communicating with heavy equipment operators by radio or arm movements. Marine clerks track and record the movement of goods on the docks.

The joint labor relations committee decided that signal work was no more demanding on the human body than clerk work. Before the change, clerk jobs were considered far less strenuous than signal jobs, making the position attractive for dockworkers, like Fairchild, who were restricted to light duty by on-the-job injuries.

The new rules meant that if a signal job was offered to a handicapped dockworker at the hiring hall, he or she had to accept it or be banned from working for the day.

The change, Fairchild said, forced him as well as other injured workers out of clerk jobs they had held for years because they were unable to perform signal jobs.

In Fairchild’s case, the new definition effectively ended his 24-year career as a longshoreman. He has been unemployed ever since, surviving on savings and a worker’s compensation award.

After his accident, Fairchild said, he worked as a signalman against his doctor’s orders. To endure the pain from standing and waving his arms all day on the job, he relied on powerful and addicting prescription drugs.

“I had no choice,” Fairchild recalled. “It was either take ‘em or not work. Sometimes I was in so much back pain, people had to tie my shoes for me.”

Shortly after the rule change, Fairchild and four other disabled dockworkers filed a lawsuit in federal court, alleging that the new policy discriminated against the handicapped. The five longshoremen alleged that their injuries made it very difficult if not impossible for them to perform signal work. They further charged that the PMA and ILWU had failed to appoint affirmative action officers, as required by federal law.

After hearing both sides, District Court Judge Robert M. Takasugi ruled in favor of the association and the union in May 1989 and concluded that clerk work was just as demanding as signal work.

Two months later, the disabled longshoremen filed complaints with the Office of Federal Contract Compliance Programs within the Department of Labor--the first of more than 30 complaints dockworkers would lodge with the agency by 1990.

They alleged that the PMA and 15 shipping companies had violated the Rehabilitation Act of 1973 and the Vietnam-era Veterans Readjustment Act. Those laws require employers to take steps to hire handicapped workers and disabled military veterans and to make reasonable accommodations for them on the job.

The complaints charged that tens of millions of dollars in federal contracts to move government cargo had been granted to the shipping companies. Yet, they alleged, no affirmative action plans were in place for disabled dockworkers or military veterans.

In April 1991, the Department of Labor opened an investigation. Two and a half years after the first complaints were filed, the agency concluded that the allegations had no merit.

The disabled dockworkers then sued the Department of Labor, alleging that the investigation was inadequate and depended on self-serving information supplied by the association and union.

Department of Labor attorneys argued that the association did not have to have affirmative action plans under federal law because, formally, it has only 30 employees.

Kenyon called the Labor Department’s position “wholly unreasonable” and the investigation “so cursory” as to be “a sham.”

In his written decision, the judge stated that the association was in effect the employer of 9,000 dockworkers because it administered labor contracts and was the hiring agent for shipping companies.

As such, Kenyon said, the association was subject to federal affirmative action laws and ordered the Labor Department to undertake a thorough investigation and to enforce the law.

“To say PMA is not the agent of the companies, then thousands of jobs would escape regulation under the statutes,” Kenyon wrote.

The judge told the Labor Department to make progress reports to his court every 60 days. Despite Kenyon’s order, the reports show that the department is still analyzing whether it has jurisdiction over the association.

One report dated June 20, 1996, mentioned that the association had submitted an affirmative action plan to the Labor Department at one point, but officials stated that it was “deficient and nonresponsive.” Subsequent progress reports indicate that the association has never resubmitted the plan.

Under federal law, entities required to adopt affirmative action plans generally have 120 days to do so. It has been three years since Kenyon’s ruling.

“What is painful is that the Department of Labor has taken so long,” said Richard Bauer, the attorney for the injured longshore workers. “The Labor Department must implement the court order. If they don’t enforce the law, they are stripping it of any purpose.”

Bauer is preparing a motion to protest the long delay and what he considers to be inadequate progress reports filed with the court. “The reports are identical to the ones before,” he said. “It gives the appearance that the whole investigation has been shelved.”

The Pacific Maritime Assn. steadfastly maintains that it is not responsible for implementing any affirmative action programs for dockworkers. But executives at major shipping companies, such as K-Line, Maersk, Matson and Stevedoring Services of America, said the association is responsible for the plans in question.

“Someone is going to have to address this gap,” Bauer said.

As the Labor Department ponders what to do, Fairchild and 19 other disabled dockworkers are pursuing a third federal lawsuit against the association and the union. The case is scheduled for trial in January.

This time, they contend that both organizations violated the Americans With Disabilities Act of 1990 by failing to take steps to hire the handicapped and make reasonable accommodations for them in the workplace.

The act requires employers to evaluate jobs to see if positions can be changed to permit the disabled to work as long as no undue hardship is created for the business.

“This task has not been undertaken by the PMA and ILWU,” Bauer said. “To the contrary, they have redefined job positions to exclude the disabled.”

Four days before the Americans With Disabilities Act went into effect in July 1992, association and union representatives changed the rules to require marine clerks to meet the same physical fitness requirements as longshore workers.

According to the minutes of their meeting, the representatives said longshore workers and marine clerks are required to do heavy physical labor aboard ships and on the docks.

“The unique factors of dock work make accommodations of the disabled often impossible and certainly difficult,” the minutes stated. “No tasks can be carved out, reserved, isolated or guaranteed a person. The PMA and ILWU should not be required to create new jobs.”

But the injured longshore workers are prepared to show that most marine clerk posts do not require the same physical fitness level as those who unload cargo. Their evidence indicates that marine clerks rarely exert themselves and often sit at computers or in pickup trucks recording the movement of cargo.

They contend that until the Pacific Maritime Assn. and the longshore workers union began redefining jobs, injured and handicapped longshore workers were regularly placed into marine clerk jobs and other light duty assignments without any impact on the shipping industry.

“The PMA and the union like to say that accommodating the handicapped will bring the system to a screeching halt,” Fairchild said. “There is absolutely no truth to this. For years they dispatched the handicapped to jobs without a problem.”