Appeal from an Order and Judgment of the United States District Court for the Southern District of New York, Dudley B. Bonsal, Judge, in consolidated actions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., directing appellants to achieve prescribed percentages of "non-white" membership in the Union and in a joint employer-union apprenticeship program. Remanded for recalculation of the percentage goal for non-white Union membership.Subject to such modification as may be made by the district court, the Order and Judgment are affirmed.
Hays and Mansfield, Circuit Judges, and Davis, Judge.*fn* Hays, Circuit Judge, dissenting.
MANSFIELD, Circuit Judge:
Once again we are confronted with questions arising out of the imposition of a specific racial membership goal upon a union as a means of dissipating the effects of its past discrimination against minority applicants for membership. See, e.g., United States v. Wood, Wire & Metal Lathers International Union, Local Union No. 46, 471 F.2d 408 (2d Cir.), cert. denied, 412 U.S. 939, 37 L. Ed. 2d 398, 93 S. Ct. 2773 (1973). The present appeal is by Local 638, Enterprise Association of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Compressed Air, Ice Machine, Air Conditioning and General Pipefitters (the "Union") from certain provisions of an Order and Judgment entered on June 21, 1973, after the consolidated trial of two actions in the Southern District of New York before Judge Dudley B. Bonsal, sitting without a jury. The portions of the Order appealed from relate to the admission of "non-whites" into Union membership and into a joint employer-union apprenticeship program. The term "non-white" as so used is defined to mean black and Spanish sur-named workers. We remand the case for the purpose of reestablishing the percentage goals upon the basis of relevant statistical data. Subject to such modification the Order and Judgment are affirmed.
Two actions were consolidated for trial purposes by the district court. One is a suit filed by the government in 1971 under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against the Union and others to enjoin a pattern and practice of discrimination against non-whites in the construction industry. Joined as defendants were (1) several local construction unions, including Local 638, each of which represents a different branch of workers in the industry, (2) joint apprenticeship committees for the different branches, and (3) various associations of employers in the industry. Separate trials were ordered of the claims against each Union. On January 3, 1972, after a three-day hearing on the government's application for preliminary injunctive relief, Judge Bonsal found that the Union had unlawfully discriminated in the past against non-whites, failing among other things to admit some 169 qualified non-white workers to membership. 337 F. Supp. 217 (S.D.N.Y. 1972). He ordered the Union to admit them and temporarily enjoined a strike protesting an employer's non-discriminatory action in laying off white and non-white workers when the work force was reduced upon the completion of a construction job. No appeal was taken from his findings, conclusions or order.
The government's suit against the Union was consolidated for trial purposes with a class action against the Union and others by four non-white workers (known as the " Rios " action) claiming that the Union, the Mechanical Contractors Association of New York, Inc. ("MCA") and the Joint Steamfitters Apprenticeship Committee of the Steamfitters Industry ("JAC") had failed to admit non-whites to membership, had refused non-whites access to the steamfitters' apprenticeship program on the same basis as whites, and had failed to provide non-whites with equal job opportunities, all in violation not only of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., but also of 42 U.S.C. §§ 1981 and 1983, and of the Fifth and Fourteenth Amendments. Prior to the consolidation of the Rios and government suits Judge Frankel, after hearing the application of the Rios plaintiffs for preliminary injunctive relief in their action, found, in an opinion filed on March 24, 1971, 326 F. Supp. 198, that the Union "ha[d] followed a course of racial discrimination over the years," which had had the effect, among others, of wrongfully excluding three of the plaintiffs from membership in the Union. By way of preliminary relief the Union was ordered to admit the three to membership. No appeal was taken by the Union from this preliminary injunction.
Following the consolidated trial Judge Bonsal, in detailed findings and conclusions issued on June 21, 1973, 360 F. Supp. 979, found that, although the Union had taken some affirmative action since the entry of the preliminary injunction to increase non-white participation in the construction industry (principally by joining in a joint industry program called the "New York Plan," which sought to recruit and find jobs for minority employees), it had continued its pattern and practice of discrimination against non-whites by failing to admit them to full journeyman status, by discriminating against them in work referral, and by participating in an apprenticeship program which discriminated against them.
In an Order and Judgment filed with his opinion the district judge enjoined the defendants from discriminating against individuals on the basis of race, color or national origin and directed the Union to receive and process applications for membership and references for employment and to administer its affairs in a nondiscriminatory manner. The Order appointed an Administrator, Vincent McDonnell, Esq., to implement its provisions and to supervise performance by the parties. The defendants were directed, within three months of the date of the Order, to submit to the Administrator an "affirmative action program" designed to secure the admission of a sufficient number of non-whites to membership as journeymen in the Union's A Branch "to achieve a minimum goal of 30% non-white membership by July 1, 1977." (Members of the Union's "A Branch" perform construction steamfitting work and generally receive higher hourly earnings than do members of the "B Branch," who perform shop or repair work.) With a view to achieving the prescribed 30% goal, guidelines were established for direct admission to the A Branch membership and for the administration of the apprenticeship program, subject to such changes as might later be approved by the Administrator and the court.
The Order further directed that, during the three-month period following its issuance, certain "Transitory Provisions" were to be observed by the Union. During this period the Union was directed to admit only (1) graduates of the Apprenticeship Program and (2) non-whites who had met certain experience or certification requirements or who had successfully completed a practical examination to be administered by a Board of Examiners. The Board, which was authorized to act by majority rule, consisted of the Administrator or his representative, a representative of the Union, and one chosen by the Administrator from a "minority referral" source. The Order required the defendants, within five days after its effective date, to submit a form of such practical examination for approval by the court and to administer the examination once a month, after such approval, giving advance notice to each applicant.
The Order further established temporary procedures for an apprenticeship training program during the period prior to adoption by the court of the "affirmative action program." It specified that during 1973 there should be a minimum of 400 apprentices, of whom 175 should be non-white, indentured into a program not to exceed four years. Any additional apprentices must be indentured on the basis of one non-white for every white.
The parties submitted to the Administrator their proposals for and comments with respect to an "affirmative action program" that would incorporate permanent relief with respect to admissions to membership and administration of the apprenticeship program. On March 29, 1974, the district court adopted an "Affirmative Action Plan" (the "Plan"), which generally implements the terms of the court's Order. The Plan continues Mr. McDonnell in office as Administrator until July 31, 1977, and directs that the minimum goal of 30% non-white membership in the A Branch shall be achieved in stages, 15% by July 15, 1974, 20% by July 15, 1975, 25% by July 15, 1976 and 30% by July 1, 1977. The categories of A Branch members to be used as the measure for determining these goals are defined, with the direction that the goals are to be met through (1) a four-year apprenticeship program, (2) direct admission to the A Branch, and (3) other trainee programs. Detailed standards and conditions are fixed for admission of non-whites to the first two of these categories, the Plan directing that a minimum of 100 non-whites shall be indentured into the apprenticeship program each year through 1977 and that a practical examination for admission to the A Branch shall be given weekly or at such other intervals as are approved by the Administrator, upon at least two weeks notice to applicants. The three-person Board of Examiners, which is authorized to act by majority vote and to determine the results of each examination, is to consist of the Administrator or his representative, a Union representative and a representative of the "non-white community" chosen by the Administrator. The Union and employers are also encouraged to develop and participate in non-white trainee programs. Aside from the foregoing, perhaps the most significant term of the Plan is its provision that if the Administrator determines that the minimum goals may not be met by the foregoing methods he may require direct admission to the A Branch on terms approved by himself and the court.
No appeal has been taken from the district court's findings and conclusions or from most of the provisions of the Order and Judgment, including the broad equitable relief granted, the appointment of the Administrator, the definition of his powers, and the general provisions with respect to work referral, back pay, attorneys' fees, costs and continuing jurisdiction. The Union, however, appeals from six specific provisions of the Order:
(1) its provision for an affirmative action program (since adopted) to achieve a minimum goal of at least 30% non-white membership by July 1, 1977 (Par. 8);
(2) its grant of authority to the Administrator to determine the size and frequency of apprenticeship classes and requirement that at least 30% of those indentured for each year for the year 1974 through 1977 shall be non-white, subject to a determination by the Administrator that a greater percentage of non-white apprentices may be necessary to achieve the minimum 30% goal (Par. 9(b) (ii));
(3) its provision that during the three-month transitory period following entry of the Order non-white applicants for membership might satisfy the four years experience requirement by including their experience in specified work of a related nature (Par. 11(a));
(4) its establishment of a board of three examiners who are authorized, by a majority vote, to administer the practical examination to be given to applicants;
(5) its provision that from the expiration of the three-month transitory period until the adoption of the affirmative action plan applicants for full journeyman membership in the A Branch must be accepted on a "one-for-one" basis, i.e., one non-white for each white (Par. 12);
(6) the requirement that the practical examination be administered "at least once every month" (Par. 13).
Since the facts are set forth in detail in Judge Bonsal's opinion, 360 F. Supp. 979, we limit ourselves to a summary of those aspects essential to consideration of the Union's challenge of the foregoing provisions.
The Union is a labor organization representing its members as their collective bargaining agent in arriving at terms and conditions of employment with steamfitting contractors and contractor-associations in the five boroughs of New York City and in Nassau and Suffolk Counties. It has two branches: (1) the A Branch, whose members are journeymen engaged in construction work on building sites, and (2) the B Branch, a metal trades division, whose members work in shops or perform repair work. Membership in the Union is of substantial aid to a worker in obtaining a job as a construction steamfitter and in gaining advancement and overtime pay. Although the Union does not operate a hiring hall, it does refer workers to jobs upon learning of openings. Contractors in the steamfitting industry maintain steady crews which are shifted from site to site as construction needs change. Workers and the Union learn of job openings through those employed on different sites or through employers' foremen or superintendents.
All past and present officers and business agents of the Union have been white. Prior to 1967 there were no non-white journeymen in the A Branch. By the end of 1971, there were 3,850 A Branch members, of whom only 31 were non-white, and by the end of 1972 approximately 4.5% of the membership, or 191 out of 4,198 A Branch members, were non-white. For the most part even this small non-white membership was achieved as a result of the preliminary relief granted by the court. Unitl that time the Union's use of irregular and informal admissions procedures had resulted in almost complete and systematic exclusion of non-white applicants for journeyman membership, while whites were admitted, with some preference apparently given to relatives of existing members. Approximately 25% of the A Branch have been admitted through a five-year apprenticeship program administered by the JAC, the members and employees of which are all white. As a result of the JAC's use of discriminatory requirements for admission into the program, no non-white applicants were admitted prior to 1964 and, since that time, of 492 apprentices indentured 94.3% have been white. At the time of trial only 16 of the 376 participants in the apprenticeship program were non-white.
The district court concluded that it was unnecessary to determine whether the Union had engaged in purposeful discrimination against admission of non-whites to the A Branch since the Union had a history of de facto discrimination, with the results of past discrimination being perpetuated. In short, non-white access to membership, either directly or through the apprenticeship route, has been almost completely blocked until the last two years when a very small percentage of non-white membership has been achieved, but otherwise the effects of past discrimination have continued. As against the miniscule percentage of non-white members in the Union, reliable statistical sources revealed that blacks and Puerto Ricans constituted (1) 25.09% of the total population in the seven counties in which the Union has jurisdiction,*fn1 and (2) 19.79% of the work force in that area.*fn2
In light of the foregoing background, described in detail in his opinion, Judge Bonsal concluded that affirmative relief was required to combat the continuing effects of past discriminatory practices, and entered the ...