The opinion of the court was delivered by: GURFEIN
This is an action brought by the Attorney General of the United States in a complaint signed on July 29, 1971 under the Civil Rights Act of 1964 pursuant to authority granted to the Attorney General in that Act (Act of 1964, 42 U.S.C. § 2000e-6(a)). The defendants were four local unions in the building trades servicing metropolitan New York and their counterpart Joint Apprenticeship Committees and employee associations. By order of this Court, separate trials were ordered for each local union and its counterparts.
A separate trial has now been had to the Court in the case against Local 40, International Association of Bridge, Structural and Ornamental Iron Workers ("Local 40"), the Joint Apprenticeship Committee, Iron Workers Local 40 and 361 ("JAC") and an employer's association, the Allied Building Metal Industries ("Allied Metal").
Decision was reserved.
The complaint alleges that Local 40 is engaged in a pattern and practice of discrimination in violation of Title VII of the Civil Rights Act of 1964. It charges that Local 40 which has approximately 878 members
has only fifty non-white members (para. 12). All individuals employed by members of Allied Metal as structural iron workers must be members of Local 40 or hold valid work permits issued by Local 40. The JAC trustees are representatives of employers and union and they control the apprenticeship program for Locals 40 and 361 and determine which persons shall be admitted to the apprenticeship program (para. 14).
The pattern and practice of resistance to the full enjoyment by non-whites of rights secured to them by 42 U.S.C. § 2000e-2(c) and § 2000e-2(d)
are alleged to consist, inter alia, of the following: (a) failing to admit non-white workmen into the union as journeymen members on the same basis as white; (b) failing to refer non-white workmen for employment on the same basis as white by applying standards of referral which have the purpose and effect of insuring referral priority to their members; (c) failing to recruit "blacks" for membership in and employment through the union on the same basis as whites are recruited; (d) failing to permit contractors to fulfill the affirmative action obligations imposed by Executive Order 11246 by refusing to refer blacks whom such contractors wish to employ; and (e) failing to take reasonable steps to make known to non-white workmen the opportunities for employment, or otherwise to take affirmative action to overcome the effects of past racially discriminatory policies and practices.
Local 40 is a hard-hat union of structural steel workers whose members were braving the heights of rising skyscrapers long before the hard-hat was used. Created in 1904, its members shared the prejudices of their time, stuck largely to their ethnic stock and surely discriminated against black persons, among others. Like most prejudice, it was probably made to appear justified on economic grounds of self-survival by otherwise decent hard-working folk. The union fostered nepotism and was, on the whole, a family oriented group. In this respect, Local 40 was probably not different from the other construction unions across the land.
It is unprofitable to assay in retrospect the relative strength of each of the coalescing factors that spelled discrimination. The net effect, suffice it to say, was an ugly discrimination against black workmen. It is this effect that the Congress sought to eliminate, or at least ameliorate, through the Civil Rights Act. The evils were well known and labor unions were singled out as special targets in the legislative desire to end discrimination in employment.
When the Civil Rights Act became effective in 1965, Local 40 had one black member, and he had been admitted toward the end of 1963, and one person of Spanish ancestry, admitted in 1948. That this was tokenism is apparent. But the union cannot legally be charged with discrimination practiced before the Civil Rights Law was enacted. It can only be charged with what it has done or failed to do since then. One must bear in mind, however, that we do not start with a clean slate, but with a chronic condition which it will obviously take some strong affirmative action to improve.
The union, in simple terms, contends that it has set itself to the task with a will and that it deserves no censure for its efforts. The Government, to some extent at least, must grudgingly concede that there has indeed been some progress, but it maintains that the pace is too slow, that foot-dragging continues, and that the proof of the pudding is in the statistics. The union appears reluctantly to accept the use of statistical measurements, although it rightly argues that statistics alone should, in no event, be wholly determinative of its conduct. The Government stresses the results viewed objectively, while the union stoutly maintains that the asserted purity of its motives and its recent conduct must weigh heavily in the scale in favor of exculpation. With this background, let us try to see what has happened since 1965 when the Civil Rights Act came into being.
1. Local 40 is a labor organization within the meaning of 42 U.S.C. § 2000e(d). It has more than 100 members and maintains a hiring hall, and is in an industry affecting commerce. (Stipulated)
2. JAC is a joint labor management committee within the meaning of 42 U.S.C. § 2000e-2(d). (Stipulated)
3. Local 361 is a sister union of the same International whose jurisdiction covers Kings, Queens, Nassau and Suffolk Counties, while Local 40's jurisdiction covers Bronx, New York, Westchester and Richmond Counties. The craft jurisdiction is the same for both locals. (Stipulated)
4. In 1965, Local 40 had one black member, admitted in 1963 and one Puerto Rican member, admitted in 1948. (Stipulated).
Union Membership -- "Bookmen v. Permitmen."
5. There are two classes of workmen who may be employed under the industry-wide collective agreement. These are full fledged members of Local 40 in good standing -- the "bookmen"; and journeymen from other locals as well as workmen some of whom are equivalent in capacity to "bookmen" or possess skills necessary for a particular job assignment, but who have no union affiliation -- the "permitmen." (Tr. 297-298: Ct. Ex. 1)
6. These men, if they get a job in the industry on their own or through the hiring hall, are permitted to work, after they get the job, under a permit granted by the union upon payment of a fee of $2.50 per week to the union. (Tr. 27).
7. They receive the same pay scale as the bookmen, and receive certain fringe benefits like vacation pay. The permitmen generally get their jobs through the union hiring hall. (Tr. 221-22).
8. Under the charter of the International Union permitmen must be qualified journeymen (Ex. FF50).
9. A welder certified by the City of New York may get a permit to work even though he is not qualified as a journeyman (Tr. 320-21), and there is a separate column on the daily hiring hall sheet where a workman can signify that he is a welder (Id.).
10. To be admitted to membership in any local union of the International, one must be a practical workman versed in the duties of some branch of the trade, of good moral character and competent to demand standard wages (Ex. 3, Constitution, Art. II, 2).
11. There is no record kept of the number of permitmen nor of the ratio of permitmen to bookmen.
12. By extrapolating the weekly cash receipts from the $2.50 permit fee, one may, however, reasonably deduce the number of permitmen in a given period. The Government has attempted to do this and has arrived at an average of 580 permitmen, a figure I can accept as a fair approximation (Ex. 48A, Tr. 361, 298-301).
13. There were 1229 members of Local 40 at the end of April 1972, of whom 86 are apprentices. The active bookmen number about 903, the rest being honorary and pensioners (224 men) (Ex. 60). This means that the actual working population in this craft within the four counties included in the Local 40 jurisdiction is about 1480 persons, all of whom have the apparent capacity to do the work required, plus apprentices.
14. Not all of the 580 permitmen are seeking membership in Local 40, for many of them are members of other locals in the International. Of the non-members of Local 40 who applied for referral in the months of May and December 1971, out of a total of 1114 persons listed, 708 or 63% were not members of other locals (Ex. 34). The figure may be of little significance because the same name is repeated many times on the successive daily sheets when the person continues to be out of work. It tends to show, however, that, in aggregate, there are a considerable number of permitmen, apparently qualified to work, who are not members of the International union.
15. At the end of April 1972, the total non-white membership of Local 40 consisted of 40 "black" persons, 16 "with Spanish surnames," 6 "Orientals" and 66 "American Indians." There were 86 apprentices of whom about 14 (estimated) are black and Puerto Rican (Ex. 9, EEO-2 form for 1971, Part E; Ex. 11, Local 40 Membership Certificate for September 1971; Tr. 297 and Ct. Ex. 1).
16. That adds up to 128 non-whites out of 989 (including apprentices), or about 12.9%. Excluding the 66 Indians, however, the black and Puerto Rican group constituted 6.3% against the total population figure derived below of 23.9%.
17. The related population figures for the eight counties which are included within the jurisdiction of Local 40 and its sister union Local 361 (which have a joint apprenticeship and joint job rights program) are the following:
Total male population 5,368,436
Negro male population 854,933
Puerto Rican males (1/2 of total
Puerto Rican population) 429,978
Combined Negro and Puerto Rican
male population 1,284,911
(U.S. Bureau of the Census, Census of Population: 1970, General Population Characteristics Final Report PC(1)-B34, Table 35, New York; Puerto Rican male population estimated from Pltf. Ex. 58A).
This indicates that Negro and Puerto Rican males are 23.9% of the total male population of the eight counties.
18. On the other hand, there has been a positive increase in "membership" in Local 40 (excluding Indians) for blacks and Spanish speaking persons from 2 to 56, or 2800% in seven years.
19. We do not know the racial composition of the permitmen for they are a shifting group and records are not kept by race.
20. The method for electing journeymen to union membership as bookmen is, on its face, suspect. The applicant fills out a form which is readily given to all. He then is interviewed by the Executive Board of the union, all white, which determines whether his experience qualifies him to take the examination for membership. Only if he passes muster, can he take an examination given by an examination committee of the union, all white. The emphasis is on a practical test with no set form. There is also a written examination. No independent agency reviews the results (Corbett Dep. Ex. 47, pp. 104-09). Nor is there any written rule for processing the applications (Place Dep. Ex. 44, p. 70).
21. The written test is prepared by the coordinator of the JAC from books prescribed for apprentice training. The practical test consists of rigging up a block and tackle, pointing out the parts of a guy derrick from a blueprint; and tieing up a number of knots and hitches using a piece of line and a two-by-four piece of wood (Place Dep. Ex. 44, p. 74).
22. The examinations are job-related.
23. In July 1966 there were 1048 members plus 62 apprentices for a total of 1110. Of these, 833 were journeymen and 215 "retired." In July 1971 there were 1137 members and 87 apprentices, a total of 1224, of which there were 903 journeymen and 234 "honorary and pensioners." In 5 years, then, the membership rose from 1110 to 1224, an increase of 114, and 155 vacancies were filled, making a total of new members of 269, except that there were 25 more apprentices at the end of the period, making the true figure 244. By extrapolation I find that 42 of the new members were black or Puerto Rican, or about 17.2% of the members admitted (see Ex. 60).
24. There were 100 black iron workers on the World Trade Center (Tr. 370) and 17 of them, who were City certified welders, were given welder's books in Local 40 (Tr. 369). There is no evidence whether any of the other black men on that job were already members of Local 40 though there may have been some. The union claims credit for this showing. Mr. Corbett testified that he felt that black welders who had not had enough experience to pass the journeyman's examination ought, nonetheless, to be allowed into Local 40. Under the union Constitution, if a man failed the journeyman's examination he was no longer permitted to work. To forestall such a peril, Mr. Corbett arranged for such men after two years of work as welders to be given welder's book membership in Local 40 without examination (Corbett Dep. pp. 319, 321-22).
It would not be fair, in any event, to resolve the issue of "bookmen" membership without considering the steps the union has taken to fulfill the mandate to act affirmatively. This requires us to explore another ground for the Government's complaint -- recruitment practices.
25. Contemporaneously with the effectiveness of the 1964 Civil Rights Act, the industry and the unions bestirred themselves to form a Joint Apprenticeship Committee (JAC), the avowed purpose of which was to recruit and train apprentices for this skilled and hazardous trade. The Ironworkers' JAC is a common apprentice program shared by both Local 40 and Local 361 (Tr. 222).
26. Apprentices are indentured to the JAC for a period of years.
27. The creation of the JAC was a part of the collective bargaining machinery and the trustee representation was joint. A trust fund was created on July 1, 1966 whose purpose was "to provide training for apprentices pursuant to the Standards of Apprenticeship and Training adopted by the trustees and to provide training and skill advancement for journeymen" (Ex. 2 § 2). The trustees are empowered "to determine the number of apprentices to be initiated into the apprenticeship program, taking into consideration the need for apprentices in the locality, the available job facilities for acquiring the necessary experience, and other relevant factors" (Id. Art. V, 1(b)). But the upper limit is fixed by the ratio of apprentices to journeymen as provided in the regulations of the International Constitution.
It is incumbent on the trustees to establish minimum ...