The opinion of the court was delivered by: FRANKEL
This is a contempt proceeding under a consent decree in an action brought by the United States pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In the complaint, filed on May 22, 1968, the Government charged that defendant Local Union No. 46 of the Wood, Wire and Metal Lathers International Union, "has engaged and is engaged in a pattern and practice of discrimination in employment against Negroes on account of their race." The alleged pattern and practice was said to have included (Complaint, par. 8):
"(a) Adopting and implementing a policy which prevents the transfer of Negro journeymen lathers into the union;
"(b) Affording job referral opportunities to union members and other white persons not afforded to Negro lathers with similar qualifications;
"(c) Engaging in acts and practices, the purpose and effect of which are to replace Negro lathers on the job with white union members and other white persons."
Defendant Joint Apprenticeship Committee, a group comprised of union and employer association representatives, was accused of discriminating on account of race in admissions to the apprenticeship program. Finally, both the Union and the Joint Apprenticeship Committee were charged with having "failed and refused to take reasonable steps to eliminate the effects of past discriminatory acts and practices."
After 18 months of pleadings and motions, and on the eve of the date set for commencement of trial, the parties entered into an interesting and potentially creative agreement as the basis for a consent decree. As is evident from the fact that the court is now considering charges of contempt, the agreement and decree have not yet achieved the solid resolution for which all affected may have hoped. It may be, moreover, that the hope for more or less voluntary collaboration will not be furthered by, or even capable of surviving, findings that defendant Local Union has violated obligations under its own agreement embodied in this court's decree. Nevertheless, the charges of violation are here. They must be resolved. As will appear, the court is compelled to sustain them in substantial measure. It seems appropriate at the same time to reaffirm that the goal of voluntary compliance is obviously preferable to the litigation model of breach and compensatory sanction. And the court will seek in the disposition here made to leave the voluntary course open to the extent possible.
Local 46 has exclusive jurisdiction over two types of construction work in New York City and Nassau, Suffolk and Westchester Counties. Metallic lathing and furring, "inside" work, is performed only by men who have completed an apprenticeship. "Outside" work, embracing various tasks involved in concrete reinforcing, includes no skills requiring an apprenticeship. The operations in this category range from the tying of steel or slab, learnable in a matter of minutes or a few hours, to more complex work at bending machines. All the several skills involved in such work are traditionally learned, and are accessible to men of ordinary intelligence and dexterity, by varying amounts of on-the-job training.
Three kinds of workmen come under the jurisdiction of Local 46: Local members, members of sister locals of the International, and permit holders. Local 46 members, whose apprenticeship program trains them for inside work, perform both inside and outside work. Members of other locals working under Local 46's jurisdiction are restricted to inside work. Permit holders are not union members, have not been apprenticed, and perform only outside work.
Until recently, there were few nonwhite union members or permit holders. Of the approximately 1450-1500 members in 1968, four were black. There are now 13 non-whites in a substantially unchanged total membership, and, pursuant to the agreement incorporated in the consent decree, there appear to be 25 nonwhite apprentices. No nonwhite received a permit until 1966; by the time the instant contempt proceeding was commenced there were 165 nonwhite permit men out of an approximate total of 2000.
As the settlement agreement recites, "the Union enjoys the exclusive right to refer men for employment within its work jurisdiction and territory and to require the employers with whom the Union has collective bargaining agreements to request the referral of men by the Union whenever the employers wish to employ men * * *." At all material times, before and since the consent decree, the Local has operated a hiring hall. Especially useful in an industry where jobs may be of relatively short duration, a hiring hall, fairly administered, serves as a useful means for coordinating the needs of employers and job-seekers. A business agent of Local 46 is in charge of referrals to each of four territorial subdivisions. As jobs become available and come to his attention, he distributes the work.
Before the consent decree various practices associated with the operation of the hiring hall led the Government to allege in its complaint that the Union was "affording job referral opportunities to union members and other white persons not afforded to Negro lathers with similar qualifications." For present purposes, it is only necessary to note certain procedures by which men got outside work under the Union's jurisdiction. Although there was supposedly a rule requiring any man seeking work in New York City to appear personally at the hall and put his name on "sign-in" lists, the rule was not enforced against Local 46 members, nearly all of whom were white. Local 46 men were permitted to ask by telephone for referral to jobs in New York City and elsewhere, and it was the practice to make such referrals. In addition, Local 46 members were permitted to call foremen or employers directly, or go to a job site, to arrange for a job. Nonmembers were not so privileged. For the men who did come to the hall, the business agents admittedly "didn't pay too much attention to" the list of men seeking outside work. Although a man's experience in the trade, when it was known to the business agent, was probably a factor in making referrals, the evidence is persuasive that (1) Local 46 men were preferred in referrals over all other categories of workers, and (2) among permit men, sons and brothers of Local 46 members were to be given preference in referrals. Telephone requests for specific permit men, sometimes inexperienced, were made by foremen and deputy foremen, and these were routinely granted by business agents. Employers were permitted to shift employees from one job site to another without going through the hiring hall, and a foreman would sometimes simply choose men he wanted from another site.
The settlement agreement embodied in this court's decree on consent was designed to change those referral practices in significant respects. In a paragraph numbered "6-7," which defendant Local correctly identifies as being at the heart of the present controversy, the agreement provides for " Equal employment opportunities: "
"With respect to registration on the open employment lists,
job referral from the open employment lists, job layoff, job transfer, job assignment, work conditions and overtime, the rules and procedures of the Union shall apply equally to all workmen, and shall afford to Negro workmen employment opportunities equal to those afforded to other workmen; all workmen shall be treated on a nondiscriminatory basis and without any preference on account of union membership or on account of time worked under a collective bargaining agreement, except that experience in the trade may be used as a basis for preference if it relates to the ability of the workmen to perform the work required. Within 6 months of the date upon which this Agreement becomes fully effective, as hereinafter provided, the Union will develop and present to the Administrator and the USA objective rules and procedures to implement the foregoing provision. Such rules and procedures shall be agreed upon by the Administrator and the parties hereto, or failing such agreement, shall be determined by the Court."
In subsequent paragraphs the agreement expands on the subject of equality in overtime assignments and in procedures governing "suspension and termination of any right to work," and then proceeds to provide for the maintenance and (if needed) change of a "system for the issuance of work permits" consistent with "the purpose of achieving equal employment opportunity." A work permit is, in the words of the agreement, "the registration card for outside work that is issued by the Union to persons who are neither members of the Union nor members of other local unions of the International."
The agreement requires the Union to file a monthly verified report containing detailed information, broken down by race, about such matters as number of union members and permit holders, hours worked by the various categories of workers, and distribution of overtime.
The somewhat novel and perhaps most interesting part of the agreement is its provision creating the office and function of an "Administrator." This official, it is provided, is to be "an impartial person" appointed by the court. The range of his powers and duties is broad:
"The Administrator shall be empowered to take all actions, including the establishment of record-keeping requirements, as he deems necessary to implement the provisions of this Agreement, to ensure the performance of this Agreement and to remedy any breach thereof. The Administrator shall decide any questions or disputes or complaints arising under this Agreement, including questions of interpretation of the Agreement and claims of violations of this Agreement acting either on his own ...