The opinion of the court was delivered by: BONSAL
This is an action brought by the Attorney General of the United States under Title VII of the Civil Rights Act of 1964 ("Title VII") (42 U.S.C. § 2000e et seq.) pursuant to authority granted to the Attorney General in that Act (42 U.S.C. § 2000e-6(a)). The defendants are four local unions in the building trades industry servicing metropolitan New York, and their counterpart Joint Apprenticeship Committees and employee associations. Separate trials were ordered for each local union and its counterparts. See, e.g., the case involving Local 40, United States v. Local 638, Enterprise Association, etc., et al., 347 F. Supp. 169 (S.D.N.Y. 1972) (Gurfein, J.).
In the case of Local 638, Enterprise Association of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Compressed Air, Ice Machine, Air Conditioning and General Pipefitters (hereinafter "Local 638"), the government's action (United States v. Local 638, et al., 71 Civ. 2877) was consolidated for purposes of trial with a private action (Rios v. Enterprise Association, etc. Local Union #638, et al., 71 Civ. 847) which had been instituted by four "nonwhites"
-- allegedly the victims of unlawful employment discrimination -- against Local 638, the Mechanical Contractors' Association (MCA), and the Steamfitting Industry's Joint Apprenticeship Committee (JAC). By order of Judge Tenney, the private action has proceeded as a class action on behalf of two distinct classes: (a) all Negro and Spanish-surnamed Americans residing in New York City and the Counties of Suffolk and Nassau in the State of New York who now or at any time in the future have the skills necessary to work as journeymen steamfitters; and (b) all Negro and Spanish-surnamed Americans residing in New York City and the Counties of Suffolk and Nassau in the State of New York who now or at any time in the future are capable of learning such skills and who wish to obtain access to steamfitting work in New York City and said Counties.
A trial of the consolidated action commenced on January 15, 1973 and concluded on January 26, 1973. Decision was reserved, and the parties have submitted Proposed Findings of Fact, Conclusions of Law, and supporting Post Trial Memoranda.
A. The Government Action (United States v. Local 638, etc., et al., 71 Civ. 2877).
Named as defendants in the government action are Local 638, MCA, and JAC. MCA is named as a defendant "for purposes of relief only pursuant to Rule 19(a) (1) of the Federal Rules of Civil Procedure." The complaint alleges that Local 638 is engaged in a pattern and practice of resistance to the full enjoyment by nonwhites of rights secured to them by Title VII of the Civil Rights Act
"(a) [failing] and refusing to admit nonwhite workmen into . . . 638 as journeymen members on the same basis as whites are admitted;
"(b) [failing] and refusing to refer nonwhite workmen for employment within its jurisdiction on the same basis as whites are referred by applying standards for referral which have the purpose and effect of ensuring referral priority to . . . A Branch members, nearly all of whom are white thereby perpetuating the effects of its past discrimination;
"(c) [failing] and refusing to recruit blacks for membership in and employment through . . . on the same basis as whites are recruited;
"(d) [failing] and refusing to permit contractors with whom . . . 638 has collective bargaining agreements to fulfill the affirmative action obligations imposed upon those contractors by Executive Order 11246 by refusing to refer out blacks whom such contractors wish to employ;
"(e) [failing] and refusing to take reasonable steps to make known to non-white workmen the opportunities for employment in the . . . steamfitting trade . . . or otherwise to take affirmative action to overcome the effects of past racially discriminatory policies and practices."
The complaint alleges that JAC also is engaged in a pattern and practice of resistance to the full enjoyment by non-whites of rights secured to them by Title VII by:
"(a) [failing] and refusing to make information concerning apprenticeship opportunities available to non-whites on the same basis as it is made available to whites;
"(b) [failing] and refusing to make apprenticeship opportunities available to non-whites on the same basis as they are made available to whites by giving a preference in the selection of apprentices to friends and relatives of union members, nearly all of whom are white;
"(c) [adopting] standards for the selection of apprentices which are not job related and which operate to disqualify a disproportionate number of non-white applicants for apprenticeship."
B. The Rios Action (Rios, et al. v. Enterprise Association Steamfitters Local Union #638, etc. 71 Civ. 847).
This class action was brought by four nonwhites
on behalf of nonwhites who have, or are capable of learning, the skills necessary to work as journeymen steamfitters within the jurisdiction of Local 638.
The complaint names as defendants Local 638, MCA, and JAC, and alleges that the three defendants in concert have failed to admit plaintiffs to membership in the A Branch of Local 638 (journeymen) and to participation in the JAC apprenticeship program on the same basis as whites, and that the defendants have failed to provide nonwhite A Branch members with equal access to job opportunities as journeymen steamfitters. Plaintiffs sue under the Fifth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. §§ 1981 and 1983, and Title VII.
Defendant MCA has moved to dismiss the Rios complaint against it on the grounds that it is neither an "employer" within the meaning of 42 U.S.C. § 2000e-2(a) nor an "employment agency" within the meaning of § 2000e-2(b), and that the complaint fails to state a cause of action against it. Plaintiffs oppose MCA's motion.
1. Local 638 is a labor union whose territorial jurisdiction consists of the five boroughs of the City of New York and Nassau and Suffolk counties.
2. Local 638 is a member of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry ("United Association").
3. Local 638 represents its members in collective bargaining with defendant MCA and other steamfitter contractors.
4. Local 638 has two branches: a construction or A Branch, whose members have the status of journeymen and do mainly construction work; and a metal trades or B Branch, whose members work in shops and do repair work.
5. Since 1960, the journeymen membership of the A Branch has been as follows:
Year Members Blacks surname
1960 3644 0 0
1961 3587 0 0
1962 3541 0 0
1963 3528 0 0
1964 3598 0 0
1965 3541 0 0
1966 3549 0 0
1967 3646 5 2
1968 3822 5 2
1969 3866 14 7
1970 3827 14 7
1971 3850 21 10
1972* 129 62
6. Since 1960, the number of members of the B Branch has been as follows:
Year Members Blacks surnamed
1971 3862*a*a 200
7. As of September, 1971, at least 399 (11%) of the A Branch members were related by blood or marriage to other members of the union; it is common for relatives to be working on the same job site.
8. Members of the A Branch have a higher hourly rate of pay than members of the B Branch. Being a member of the A Branch is a substantial aid in obtaining a job as a construction steamfitter in the territorial jurisdiction of Local 638 and is a prerequisite to obtaining job security and preventing early layoffs. Another advantage of A Branch membership is the greater opportunity for advancement and for earning overtime pay.
9. Workers in the construction steamfitting industry are engaged in the installation of refrigeration, air conditioning, heating, ventilating, pneumatic tube, and sprinkler systems in office buildings, apartment houses, power plants, and other large structures. It is the job of steamfitters on these construction sites to connect the various pipes, pumps, ducts, fixtures, and valves that these systems require. It is necessary for a steamfitter to know how to measure, cut, thread, and connect pipe. In addition, it is necessary that at least some of the steamfitters on a job site know how to weld pipe "in position." Since incompetent work may necessitate redoing the job or may endanger fellow workers or future occupants of the structure, steamfitters must know and follow recognized safety procedures.
10. MCA is a trade association of approximately 60 heating, ventilating, and air conditioning contractors in the New York area. While the total number of contractors employing steamfitters exceeds 300, the 60 MCA members employ the major share of the steamfitter labor force. MCA represents its members in collective bargaining negotiations and other labor relations matters with Local 638.
11. Pursuant to a 1960 Declaration of Trust, the Steamfitters Industry Educational Fund was created, with a Board of Trustees, four of whom are chosen by Local 638 and four by MCA. The trustees appoint JAC, a joint labor-management committee of eight members.
12. All of the present and past officers and business agents of Local 638 are white. All of the present and past officers of MCA are white. Since its formation, all members and employees of JAC have been white.
13. In 1973, the nonwhite membership of the A Branch (191 members) constituted 4.5% of the total membership of the A Branch. According to 1970 census figures, the related population statistics for the seven counties within the jurisdiction of Local 638
are as follows: Black and Puerto Rican persons constitute 25.09% of the total population of the seven counties; black persons and persons reporting the Spanish language as their mother tongue constitute 30.06% of the total population of the seven counties.
14. Each applicant for membership in the A Branch must have at least five years of practical working experience in the plumbing and pipefitting industry and must be of good moral character. In some instances, these requirements have not been strictly adhered to.
15. Procedurally, applicants to the A Branch send letters to the union stating their qualifications, which letters are reviewed by a committee composed of three of the union's officers. These applications are kept on file and when additional members are needed -- a determination which is based upon the demand for labor -- applicants are called down, interviewed, and if they have the necessary qualifications, accepted.
16. The steamfitting industry is subject to fluctuations and cyclical unemployment. During the years from 1960 to 1969, the total dollar value of all steamfitting contracts awarded to members of MCA to be performed within New York City and Nassau and Suffolk counties was as follows:
1963 99,095,0 20
17. In the post-war era, there has been a shortage of construction steamfitters in the New York area as well as a shortage of welders. Employers have been required to expend substantial monies for overtime. A computer study of overtime hours from 1967 to 1971 indicates the following:
Total overtime Average
Year hours*b perweek
1967 481,967 2.47
1968 432,206 2.97
1969 453,807 2.96
1970 541,1 95 3.55
1971 724,172 3.67
18. By reason of the shortage of manpower, Local 638 has referred B Branch men to work as construction steamfitters.
19. Local 638's application procedures are designed to keep the A Branch from being flooded, by admission of only a small number of new A Branch members, which tends to continue the shortage of A men and tends to give them job security and overtime.
20. Local 638 does not maintain a hiring hall, nor does it keep formal records of available jobs or of unemployed steamfitters who are seeking work within its territorial jurisdiction. The general practice is for steamfitting contractors to maintain steady crews, which are moved from job to job as work on new contracts begins and old contracts are completed. Hiring of men in addition to the steady crews is done directly by some contractors; other contractors hire men through their superintendents and in fewer instances through their foremen.
21. There is no formal method of referring workers for employment in the steamfitting industry in the New York area. Information concerning available employment is circulated informally by word of mouth and other means. Steamfitters seek work primarily by contacting A Branch members of Local 638, employers' foremen and superintendents, and occasionally officers and agents of Local 638. Employers seek steamfitters by contacting members of Local 638 through their superintendents and foremen, and by contacting Local 638 and MCA.
22. JAC conducts a 5-year apprenticeship training program consisting of a total of 720 hours of classroom work at the Delehanty Institute and Voorhees Technical Institute and 9100 hours of employment with steamfitter employers at construction sites. Upon successful completion of the program, an apprentice becomes a journeyman member of the A Branch. The apprenticeship program was designed and developed by the United Association and the Mechanical Contractors Association of America in consultation with the United States Department of Labor, Bureau of Apprenticeship and Training. The national program has been registered with the United States Department of Labor, and the local program has been registered with the New York State Department of Labor.
23. Apprentices are paid a percentage of a journeyman's wages according to the following schedule:
1st year 40% of journeyman wages
2nd year 50% of journeyman wages
3rd year 60% of journeyman wages
4th year 70% of journeyman wages
5th year 85% of journeyman wages
In addition, apprentices receive fringe benefits. The collective bargaining agreement also requires contractors to pay apprentices for five of the seven hours of class which apprentices attend once every other week, with some members of MCA voluntarily paying apprentices for the full 7-hour work day.
24. The first apprenticeship class was formed by JAC on December 15, 1947. As of July 19, 1971 (after the most recent class was indentured) 973 of the journeymen members of the A Branch had at some time been enrolled in the apprenticeship program. This number constitutes less than 25% of the total membership of the A Branch at present, though the percentage of members of the A Branch who are graduates of the apprenticeship program is increasing.
25. Prior to 1964, apprenticeship applicants were selected on the basis of a personal interview conducted by members of JAC and there was no formal method of announcing the formation of new apprenticeship classes. No nonwhites became apprentices prior to 1964.
26. JAC instituted a written aptitude examination as part of the apprenticeship program selection procedure in 1964. In that year, JAC, with the advice of New York University, was responsible for the selection of the tests and the determination of the passing score. There were no classes indentured in 1965 and 1966. In 1967, 1968, 1969, 1970, and 1971, JAC, with the advice of the Stevens Institute of Technology, was responsible for the selection of the tests and determination of the passing score. The written aptitude examination was in four parts: (1) Verbal Meaning (the ability to understand ideas in words); (2) Numerical ability (the ability to work with numbers and handle simple quantitative problems); (3) Mechanical reasoning (the ability to understand and apply basic mechanical principles); and (4) Spatial relations (the ability to visualize objects in 3-dimensional space).
27. In 1964, no applicant was refused admission to the program on the basis of his test scores. Since 1967, the test results have been as follows: Of the 1177 white applicants who have taken a written examination, 487 (41.37%) passed; of the 106 black applicants, 11 (10.37%) passed; and of the 18 Spanish-surnamed applicants, 2 (11.11%) passed.
28. Since 1966, applicants have been required to furnish: (1) a high school or equivalency diploma; (2) evidence that they are between 18 and 24 years of age, with an allowance for military service up to the age of 28; (3) a listing of arrests and the outcome of each, except for minor traffic violations; (4) evidence of residency in the New York metropolitan area for three years (reduced to one year in 1968); (5) sponsorship by a member of the A Branch; and are required to undergo a physical examination by a doctor selected by JAC. Applicants were also given an oral interview by members of the JAC to orient them to the apprenticeship program, but there is no evidence that admission to the apprenticeship program has been denied solely on the basis of the oral interview.
29. Since the filing of the Rios action in 1971, JAC has modified its standards for admission to the apprenticeship program.
30. With respect to the class to be indentured in 1973, JAC proposes the following requirements: (1) that the applicant take and pass one of the tests (S-61R) of the General Aptitude Test Battery (GATB) of the United States Training and Employment Service; (2) that the applicant be between the ages of 18 and 24 (with credit for military service up to the age of 28); (3) that the applicant have a high school or equivalency diploma; and (4) that the applicant demonstrate physical capacity to do the work. In addition, JAC proposes to conduct an interview of applicants and at such time to inquire about each applicant's motivation, education, work history, health, and family background, though at the time of the trial, no format for the interview had been determined.
31. As of July 9, 1971, there were 408 participants in the apprenticeship program of whom 12 (2.94%) were black and 4 (0.98%) were Spanish-surnamed. In June 1972, 32 apprentices (all of them white) graduated from the program; currently there are 376 participants in the apprenticeship program of whom 12 (3.19%) are black and 4 (1.06%) are Spanish-surnamed.
32. Since 1964, 492 apprentices have been indentured of whom 464 (94.3%) were white, 23 (4.67%) were black, and 5 (1.01%) were Spanish-surnamed, as follows:
White Black surnamed Total
1964 47 7 1 55
1965 0 0 0 0
1966 0 0 0 0
1967 43 2 0 45
1968 86 5 2 93
1969 94 5 2 101
1970 94 2 0 96
1971 100 2 0 102
1972 0 0 0 0
Totals 464 23 5 492
33. Of the 492 apprentices who have been indentured since 1964, 31 whites (6.7%) and 7 nonwhites (25%) had dropped out of the program by the end of 1971.
34. MCA, in its collective bargaining negotiations in 1966 and 1969, proposed to amend the previous agreements to require the indenturing into the industry of a minimum of 150 new apprentices annually, which proposals were not incorporated in the resulting collective bargaining agreements. The union's stated reason for rejection of such proposals was to ensure reasonably continuous employment opportunities for apprentices as required by the New York State Department of Labor, Bureau of Apprenticeship Training.
35. The principal affirmative action taken by Local 638 and JAC to increase nonwhite participation in the steamfitting industry has been its participation in the New York Plan since its inception in 1971. The New York Plan is a joint effort of the construction industry, New York City, and New York State to increase the participation of minority employees in the construction industry. The Plan's goal has been to recruit and place in jobs 800 minority trainees who are above the age of enrollment in the various apprenticeship programs in the construction industry.
36. Of the 800 trainee positions, 90 "slots" were allocated to Local 638, which placed 81 trainees. Currently, 66 trainees are actively employed. The qualifications of those trainees are assessed by representatives of Local 638, MCA, and a minority group representative of the Plan. Some of the Local 638 trainees have received advanced placement and, consequently, receive the wages of more advanced apprentices.
37. The New York Plan has not been an unqualified success. Trainees are not told that they will automatically become members of the A Branch when they complete the program, and only one nonwhite has become an A Branch member. In January, 1973, New York City withdrew from the Plan on the grounds that the small number of trainees placed was unacceptable.
38. In the past, Local 638 has discriminated against minority workmen in admitting members to the A Branch. There were no nonwhite journeyman members of the A Branch until 1967. Since 1967, only five nonwhites have become ...