The opinion of the court was delivered by: BONSAL
The plaintiffs in Rios v. Enterprise Association Steamfitters Local 638 of U.A., 400 F. Supp. 983, move for back pay for members of the plaintiff classes.
This motion arises from a protracted litigation under Title VII of the Civil Rights Act of 1964, as amended. See Rios v. Enterprise Association Steamfitters Local 638 of U.A., 400 F. Supp. 983 (S.D.N.Y. 1975); United States v. Local 638, Enterprise Association of Steam, etc., 360 F. Supp. 979 (S.D.N.Y. 1973), aff'd but remanded in part, 501 F.2d 622 (2d Cir. 1974); United States v. Local 638, etc., 337 F. Supp. 217 (S.D.N.Y. 1972); Rios v. Enterprise Association Steamfitters Local Union No. 638 of U.A., 326 F. Supp. 198 (S.D.N.Y. 1971); Rios v. Enterprise Association Steamfitters Local Union #638 of U.A., 54 F.R.D. 234 (S.D.N.Y. 1971).
Plaintiffs seek an award of back pay for the members of the class they represent.
Specifically, plaintiffs seek back pay for (1) non-white A Branch
members who, though qualified, were denied jobs as a result of the discriminatory work referral practices fostered by defendants; (2) non-white members of the B Branch who were not admitted to the A Branch; (3) other persons qualified to be A Branch members who were either denied membership in the A Branch or were discouraged from applying for membership or from seeking employment in the steamfitting industry; (4) persons who, with on-the-job training, were capable of learning the skills necessary to be a journeyman steamfitter; and (5) unskilled persons who were denied admission to the apprenticeship program, or who, once admitted, dropped out, or who were deterred from applying to the apprenticeship program because of defendants' discriminatory policies and tests.
Plaintiffs' motion is granted to the extent that back pay will be awarded to qualified members of the plaintiff class who applied in writing for membership in the A Branch and who were discriminatorily denied admission after October 15, 1968.
Back pay for others for whom it is sought will be denied since (1) damages, if any, arising from alleged discriminatory work referral practices are not ascertainable since Local 638 had no hiring hall and there are no accurate records of job openings for the period involved; (2) damages to persons who did not make formal written application to the A Branch are hypothetical; and (3) damages suffered as a result of the apprenticeship program are speculative, and equitable considerations weigh against making these back pay awards since the admission tests used by defendants were registered with the United States and New York State Departments of Labor and were adopted by defendants in good faith on the recommendation of experts.
Title VII provides in pertinent part:
"If the court finds that the respondent has intentionally engaged in . . . an unlawful employment practice . . ., the court may enjoin the respondent . . . and order such affirmative action as may be appropriate, which may include . . . reinstatement or hiring of employees, with or without back pay (payable by the [party] responsible for the unlawful employment practice) . . . ." 42 U.S.C. § 2000e-5(g).
Thus, the statute grants wide discretion to award back pay when warranted by the circumstances of the case and a court must make such determinations on a case-by-case basis. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280, 43 U.S.L.W. 4880, (1975); Kober v. Westinghouse Electric Corp., 480 F.2d 240 (3d Cir. 1973); Manning v. International Union, 466 F.2d 812 (6th Cir. 1972), cert. denied, 410 U.S. 946, 93 S. Ct. 1366, 35 L. Ed. 2d 613 (1973); Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002, 1006 (9th Cir. 1972); LeBlanc v. Southern Bell Telephone & Telegraph Co., 460 F.2d 1228 (5th Cir.), cert. denied, 409 U.S. 990, 93 S. Ct. 320, 34 L. Ed. 2d 257 (1972). Cases which hold that an award of back pay is required by Title VII "unless special circumstances would render such an award unjust" also require a case-by-case analysis. See Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 251-53 (5th Cir. 1974); Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1374-77 (5th Cir. 1974); Head v. Timken Roller Bearing Co., 486 F.2d 870 (6th Cir. 1973); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969).
In making awards for back pay, all the circumstances of the case, including ability to pay, must be taken into account. See Thornton v. East Texas Motor Freight, 497 F.2d 416, 421-22 (6th Cir. 1974); United States v. Georgia Power Co., 474 F.2d 906, 919-22 (5th Cir. 1973). See also Laffey v. Northwest Airlines, Inc., 374 F. Supp. 1382 (D.D.C. 1974).
Local 638. -- Local 638 was not an employer, nor was it conducting a business for profit. Local 638 is an association of workers united for their mutual protection, which is supported by dues and other assessments collected from its members to cover expenses and, from time to time, to support a strike fund. Financial data submitted by Local 638 indicates that it has limited financial resources.
Back pay is compensation for "tangible economic loss" to be paid by parties responsible for that loss (see, e.g., Johnson v. Goodyear Tire & Rubber Co., supra at 1381-82; Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971); 42 U.S.C. § 2000e-5(g)). Since it was found at the trial that Local 638 engaged in a pattern and practice of discrimination against members of the plaintiff class, it is liable to provide back pay in cases of such discrimination. 360 F. Supp. at 989.
MCA. -- Plaintiffs seek to have MCA share in the burden of providing back pay. MCA, a trade association of certain contractors in the New York area, acts only in collective bargaining negotiations between its members and Local 638. MCA does not employ steamfitters; rather, employment is done by its members. While MCA was found to have been properly made a party defendant in the Rios action (360 F. Supp. at 994-95), that finding did not imply that MCA was "responsible ipso facto for all the employment practices here found unlawfully discriminatory or . . . liable in damages to the plaintiffs in Rios. Plaintiffs have shown no specific instances of MCA discrimination. Rather, plaintiffs have ...