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decided: January 2, 1973.


Smith, Kaufman and Mulligan, Circuit Judges.

Author: Smith


Defendant-appellants Wood, Wire and Metal Lathers International Union, Local Union No. 46 and Joint Apprenticeship Committee of the Employing Metallic Furring and Lathing Association (JAC), appeal from an order and an amended order of the United States District Court for the Southern District of New York, Marvin E. Frankel, Judge, 341 F. Supp. 694, requiring Local 46 to take certain affirmative actions to remedy the effects of past discriminatory practices and to provide equal opportunity to non-white workers. We find no error and affirm the orders.

The United States filed suit against the union and JAC in 1968 under Title VII of the Civil Rights Act of 1964 to enjoin a pattern and practice of discrimination by Local 46 and JAC. Local 46 is a labor organization having exclusive jurisdiction over two types of construction work in New York City and its suburbs: metallic lathing and furring ("inside work"), which is performed by apprentices and members of Local 46; and concrete reinforcing ("outside work"), which requires none of the skills taught in the apprenticeship program and is, therefore, performed by permit holders as well as union members. Permit holders are workers who pay dues to Local 46 for the privilege of using the union's hiring hall to obtain work referrals. They are not union members, have not been apprenticed, and perform only outside work. Discrimination was charged in work referrals. Just prior to trial, after eighteen months of discovery, defendants entered into a settlement agreement which became the basis of a consent decree entered by the district court.

". . . Intended to ensure the full enjoyment by Negroes of the rights to equal employment opportunities . . . secured by Title VII," the agreement provided for an administrator, empowered to take all actions necessary for its implementation and to remedy any breach. The administrator was also charged with making an objective study of the work permit system and recommending any changes deemed necessary to attain the goal of equal employment opportunity. Such changes were to be effected either by consent of the parties or court approval and order of enforcement. It is from the court's approval and order of enforcement of the administrator's study and recommendations, and his order to reissue 100 work permits, that the union appeals.

Local 46 contends that under § 2000(e) (2) (j) of Title 42 neither the administrator nor the court could require that the union grant permits on a given racial quota or issue 100 permits immediately to minority applicants. The union further contends that the administrator's order to issue 100 permits and his use of national and state statistics in his study were not within the scope of his authority under the agreement. Finally it is argued that the failure to hold an evidentiary hearing on the permit system, and the lack of a written evidentiary record, denied the union due process of law. For the reasons below, we find no merit in appellants' contentions.

Despite Title VII's directive that cases of this type be expedited in every way, 42 U.S.C. § 2000(e) (6) (b), this case has been before the courts for four and one-half years. No small part of this delay has been due to the union's "course of passive resistance and inaction" the result of which has been a continuing discrimination against non-white workers at least two years after its agreement to afford equal treatment to blacks. United States v. Wood, Wire and Metal Lathers, 328 F. Supp. 429 (S.D.N.Y. 1971).

Under the settlement agreement, the union agreed to develop objective rules and procedures to implement fair and equal hiring hall procedures. These rules were to be drawn up within six months of the effective date of the agreement. Precisely six months after the agreement, Local 46 presented the government and the court with a "trivial and superficial" plan which was totally useless. During the time the plan was being developed the union, for the first time in its history, ceased issuing work permits.*fn1

Upon receipt of the union's proposed hiring hall procedures, the government moved to hold the union in contempt for breach of the agreement.*fn2 Finding that the objective rules and procedures remained to be formulated, that the union had operated its hiring hall subsequent to the agreement so as to discriminate against blacks,*fn3 and that "above all the pattern and practice of discrimination has continued," the court held the union in contempt for violation of its obligation respecting referral of permit holders for outside work.*fn4 Local 46 was ordered to restore "back pay to black permit holders deprived of outside work because of unlawful and contumacious practices." Development of fair and neutral hiring hall procedures was turned over to the administrator.*fn5

Proposed hiring hall procedures were submitted to the court by June 28, 1971 and approved in August. Local 46 filed its first monitoring report, required by the new rules, in September. The master eligibility list showed a decrease in the number of non-white permit holders, from 170 (prior to the closing of the permit window) to 72. Charging that the drastic decrease was due in large part to the effect of the discriminatory referral practices on the ability of non-whites to obtain jobs through the hiring hall, and the freeze on permits, the government immediately requested the administrator to order the union to issue 100 permits to non-whites and to allow renewal of permits by previous holders without having to pay back dues.

The administrator so ordered. Refusing to read the agreement to foreclose remedial action designed to overcome existing or continued evils when discovered, he provided for the issuance of the permits "to restore the number of non-white permit holders back to the level reached prior to the Union's act of 'closing the permit window.'" Local 46 appealed his order to the district court claiming the administrator had exceeded his authority.

Ten days later, the administrator submitted his study of the job referral system and his recommended changes. Premising his study on three goals (1) to redress the effects of past exclusionary practices, (2) to provide equal opportunity of employment to all present and future applicants for work in the industry within the jurisdiction of the union, (3) to achieve these goals without adversely affecting the present work force, the administrator recommended that the union issue at least 250 permits annually through 1975 on a one-to-one ratio, black to white.*fn6 The number of permits issued according to the proposal would have to achieve within certain percentage ranges an increasing representation of minority workers in the permit holder group. Thus by 1975, non-whites holding permits would equal the percentage of blacks who would have been issued permits but for the past discrimination.*fn7

Local 46 and JAC refused to consent to the implementation of the study's recommendations claiming that work requirements of the industry were severely depressed and 250 new workers could not be absorbed annually. After reviewing the study and comments, the union's objections and other affidavits submitted by the parties, Judge Frankel approved the study's recommendation and the order to issue a hundred permits immediately to non-white workers. His findings were published after a refusal to grant a stay pending appeal of his order.

Appellants set up 42 U.S.C. § 2000(e) (2) (j) as a bar to implementation of the study.*fn8 Under the provisions of the settlement agreement, the administrator was required to make a study of the issues relating to the issuance of work permits based upon the needs of the industry, and to recommend those changes deemed advisable in the system for issuance of permits. The factors to be considered included "total number of work permits to be issued, the number of permits to be issued from time to time, and the manner of issuance. . . ." Consistent with this responsibility, the administrator, after study of the industry, found that to remedy past effects of the union's discrimination and to effect equal opportunity, permits to be issued from time to time should number at least 250 annually, and that the manner of issuance ought at least, until 1975, to be on a one-to-one basis -- black to white. Clearly, the ...

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