Appeal from a decision of the United States District Court for the Southern District of New York, Dudley B. Bonsal, Judge, denying appellants' application to intervene in the district court pursuant to Rule 24(a)(2), F.R.Civ.P., in an employment discrimination action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. Affirmed.
Moore and Mansfield, Circuit Judges, and Holden, District Judge.*fn*
MANSFIELD, Circuit Judge:
The single issue presented for review is whether the applicants to intervene below, John Gunther, et al. ("Applicants" herein) were improperly denied post-judgment intervention as of right under Rule 24(a)(2), F.R.Civ.P.*fn1 Judge Bonsal of the Southern District of New York denied intervention on the ground of untimeliness.
We affirm, but on different grounds.
The history of this action goes back at least four years. In 1971 the federal government and private plaintiffs brought suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., alleging a pattern and practice of illegal discrimination by the Enterprise Association Steamfitters, Local 638 ("Union" herein) against non-whites. Lengthy pretrial proceedings and a full non-jury trial on the merits before Judge Bonsal resulted in a finding of illegal discrimination and an order prohibiting certain racially discriminatory practices and mandating affirmative action to increase non-white membership in the Union. United States v. Enterprise Association Steamfitters, Local 638, 360 F. Supp. 979 (S.D.N.Y. 1973). The district court's findings of fact and conclusions of law were affirmed by us and the case remanded for recalculation of the percentage goal for non-white membership in the Union, which had been fixed at 30%. Rios v. Enterprise Association Steamfitters, Local 638, 501 F.2d 622 (2d Cir. 1974).
The application to intervene at issue here was filed in the district court on April 17, 1974, during the pendency of defendants' appeal from the district court's original order, which had issued in June 1973 on the basis of Judge Bonsal's findings and conclusions and which was amended in November 1973. The Applicants are seven white members of the Union. They sought to intervene to protect rights allegedly derived by them from the district court's order granting affirmative relief to the plaintiffs.
Applicants allege that they, like the non-white plaintiffs, are victims of discrimination by the Union. According to the papers submitted in support of their motion to intervene the Union is divided into two branches, the "A" Branch and the "B" Branch. The "A" Branch consists of construction steamfitters and the "B" Branch represents shop personnel, repairmen, and others who do steamfitting-related work. Although Applicants claim to do construction work full time and would thus be within the jurisdiction of the "A" Branch, they are members of the "B" Branch. However, under a Union permit system they and others in the same situation, while not members of the "A" Branch, are allowed to do "A" Branch work and receive "A" Branch pay and benefits. According to their allegations, certain similarly-situated persons, who are able to do "A" Branch work and for whom there are construction jobs, have been issued permits by the Union to enable them to do the work while remaining members of the "B" Branch, but have never been formally allowed to join the "A" Branch.
Applicants claim that under this system persons, including themselves, eligible for admission to the "A" Branch have been arbitrarily excluded from membership, not on the basis of their race, for the sole purpose of preserving the job security of the "A" Branch members. Apparently the Union's rules require that "A" Branch members be given first priority over such licensed "B" Branch permit holders for all "A" Branch construction work within the Union's jurisdiction. Thus "A" Branch members must be hired before "B" Branch permit holders and laid off after them even though both are qualified to do the work. Furthermore, Applicants contend that "A" Branch members can bump "B" Branch permit holders from construction jobs if the "A" Branch members can find no other construction work. In sum, the Union has allegedly relegated "B" Branch permit holders to the position of cushioning "A" Branch members from the adverse effects of a fluctuating job market, and has arbitrarily excluded "B" Branch permit holders from "A" Branch membership.
The affirmative action plan ordered by the district court, see 360 F. Supp. 979 (S.D.N.Y. 1973), and 501 F.2d 622 (2d Cir. 1974), provides minimum annual goals for non-white membership in the Union and an ultimate non-white goal, to be reached in 1977, approximately equal to the percentage of non-whites in the local labor force. The goals are to be met through a combination of apprentice training, direct admission, and other programs. An Administrator has been appointed under the plan to oversee the implementation of the various admission procedures and generally to insure that the affirmative action plan succeeds.
The only relevant portion of the plan for present purposes is the procedure for direct admission to the "A" Branch. Under this provision, an applicant for membership in the Union who meets the enumerated requirements and who passes a court-approved practical examination "shall be admitted" to the "A" Branch.*fn2 The Union is required to give applications for admission to all who request them and to administer the examination as often as necessary to test all applicants. Applicants to intervene claim that this provision of the plan gives all persons, whites and non-whites, the right to admission into the "A" Branch on a non-discriminatory basis once the qualifications are met. They further allege that they have been denied this right by the Union and seek to intervene to enforce and protect it from infringement by the Union and others.
This application is governed by Rule 24(a)(2), which authorizes intervention as a matter of right only if the applicants for intervention can demonstrate (1) "an interest relating to the property or transaction which is the subject of the action," (2) that they are situated so that "as a practical matter" the disposition of the action may "impair or impede" their ability to protect that interest, and (3) that their interest may not be "adequately represented by existing parties." The district court is entitled to the full range of reasonable discretion in determining whether these requirements have been met. See, e.g., Chance v. Board of Education of the City of New York, 496 F.2d 820, 826 (2d Cir. 1974).
The issue on this appeal centers principally around the first of the foregoing three criteria. Applicants claim no rights under Title VII, which forms the basis of the action instituted by the non-white plaintiffs. Nor do Applicants contend that they have been adversely affected or their job opportunities curtailed as a result of the district court's order establishing the affirmative action plan. See, e.g., Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 17 L. Ed. 2d 814, 87 S. Ct. 932 (1967), where petitioners might have been adversely affected by a merger. Indeed, Applicants concede "that they have been denied membership in the A Branch for many years prior to the institution of the Title VII actions" (Appellants' Brief 21), thus confirming that their exclusion from the "A" Branch is independent and unrelated to the present action which is based on racial discrimination. Cf. Horton v. Lawrence County Board of Education, 425 F.2d 735 (5th Cir. 1970). This case cannot, therefore, be compared to Patterson v. Newspaper and Mail Deliverers' Union, 514 F.2d 767 (2d Cir. 1975) Slip Op. at 2418. We are not here dealing, for instance, with a claim that Applicants are the victims of reverse discrimination caused by the court's order.*fn3 On the contrary, Applicants seek to intervene on the ground that the district court's decree created new substantive rights in their favor, which did not exist before. This contention is based ...