The opinion of the court was delivered by: WERKER
This is an action filed in 1971 by the United States pursuant to § 707(a) of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-6(a). It was originally part of a larger action against four unions in the building trades industry and their joint apprenticeship committee for engaging in a past and continuing pattern and practice of discrimination in admission and employment of non-whites.
Soon after issue was joined in that case separate trials were ordered for each union and its related co-defendants.
After severance of the four groups for purposes of trial, the City of New York (the City) was granted leave to intervene in that portion of the action relating to Local Union No. 28 of the Sheet Metal Workers' International Association (Local 28). United States v. Local 638, Enterprise Ass'n, etc., 347 F. Supp. 164 (S.D.N.Y. 1972).
The defendants who were on trial before this court from January 13 to February 3, 1975 are Local 28, Local 28's Joint Apprenticeship Committee and Trust (JAC), and, for purposes of relief only, the New York City Chapter of the Sheet Metal and Air Conditioning Contractors' National Association (Contractors' Association). By virtue of third and fourth party complaints filed by Local 28 and JAC, the New York State Division of Human Rights (the Division) is a defendant in this action for purposes of relief. The third and fourth-party pleadings were predicated upon administrative and judicial proceedings instituted by the State Attorney General against Local 28 and JAC in which the defendants were directed to end racially discriminatory selection and admission practices under the supervision and direction of the Division.
See State Commission on Human Rights v. Farrell, 43 Misc.2d 958, 252 N.Y.S.2d 649 (Sup. Ct. N.Y. Cnty 1964). Although a nominal defendant in this case, the Division has in its papers and at trial consistently aligned itself with the plaintiffs' cause.
The complaint filed by the United States (the government) alleges that Local 28 is engaged in a pattern and practice of resistance to the full enjoyment by non-whites of rights secured to them by Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e-2(c) and 2000e-2(d). The pattern and practice alleged includes, but is not limited to, the following:
(a) Failing and refusing to admit nonwhite workmen . . . 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 . . . (its) . . . members . . .;
(c) Failing and refusing to recruit blacks for membership in and employment through . . . (Local 28) . . . on the same basis as whites are recruited;
(d) Failing and refusing to permit contractors with whom . . . (Local 28) . . . 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 nonwhite workmen the opportunities for employment in the . . . (sheetmetal trade) . . ., or otherwise to take affirmative action to overcome the effects of past racially discriminatory policies and practices.
The government's complaint does not allege specific acts of discrimination by defendant JAC. To the extent, however, that plaintiffs have succeeded in establishing such violations at trial, the government's complaint is deemed amended to conform to the proof. See Rule 15(b), Fed. R. Civ. P.
The City's complaint (para.10) alleges that Local 28 is engaged in a pattern and practice of resistance to the full enjoyment by non-whites of rights which are secured to them by § B 1-7.0 of the New York City Administrative Code as well as by Title VII of the 1964 Civil Rights Act. It sets forth the same allegations as to Local 28 quoted above, and adds as an additional example of discriminatory practice:
(f) Adopting standards for admission to union membership which are not job related and which operate to disqualify a disproportionate number of non-whites for membership.
The City's complaint, furthermore, alleges that defendant JAC is also engaged in a pattern and practice of discrimination, which includes, but is not limited to:
(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;
(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.
The allegations of both complaints have been largely substantiated by the evidence produced at trial.
1. Local 28 is an unincorporated labor union. It is the recognized bargaining agent for journeymen and apprentice sheet metal workers
hired by sheet metal contractors within its geographical jurisdiction.
2. The geographical jurisdiction of Local 28 includes the five boroughs of the City of New York.
3. A non-white has never been an officer of Local 28, or a member of the Executive Board of Local 28.
4. Since its inception in 1913 Local 28 has been governed by its own Constitution and By-Laws, and by the Constitution and Ritual of the Sheet Metal Workers' International Association. Prior to November 1946, the Constitution of the International Association contained a provision for the establishment of an "auxiliary" local union when there was a "sufficient number of eligible Negro applicants." As stated in this provision, the auxiliary was:
subordinate to the established and affiliated white local union and shall be represented by said white local union at all conferences and conventions, including International Conventions . . . . The same initiation, re-initiation and reinstatement fees shall apply to auxiliary members and the privilege of transfer shall be limited to transferring from one auxiliary to another auxiliary.
5. As of October 1, 1974 Local 28 had collective bargaining agreements with approximately 133 sheet metal contractors in New York City. Those contractors do not employ an individual to perform sheet metal work within the trade jurisdiction of Local 28
unless the individual is a member or apprentice of Local 28, or has been given an "identification slip" (ID Slip) by Local 28 permitting him to temporarily work in the sheet metal industry within the geographic jurisdiction of Local 28. The reason for this is that members of Local 28 will not work with sheet metal workers who do not fit within either of the two categories above. Thus, despite a contract provision which grants Local 28 contractors autonomy in hiring, Local 28 has substantial, if not complete, control of job opportunities which arise with them.
6. In preventing its contractors from hiring non-union non-white sheet metal workers Local 28 has precluded them from fulfilling the affirmative action obligations imposed on them by Presidential Executive Order 11246, 3 C.F.R. Chapter IV § 202, and Mayoral Executive Order 71, April 2, 1968, 96 The City Record 2842 (April 10, 1968). Those orders require recipients of federal construction funds and city construction contracts to take affirmative action to ensure that all applicants for employment enjoy equal access to work opportunities without regard to race, color or national origin.
7. Since 1960 there have been four methods by which individuals have been admitted to membership in Local 28:
a) successful completion of a four-year apprentice program administered by JAC;
b) successful performance on a written and practical examination administered by the Examining Board of Local 28 (journeyman's test);
c) transfer from a sister local union, affiliated with the Sheet Metal Workers' International Association;
d) employment with a newly organized sheet metal contractor who will certify as to its need for the applicant and the applicant's ability to work in accordance with journeyman standards of performance.
The availability of the first method is determined by the collective bargaining agreement between Local 28 and the employers. The availability of the other three methods is determined by the Executive Board of Local 28, with the approval of the Union membership.
8. As of July 1, 1974, 3.19% of the union's total membership (including pensioners) was non-white.
9. Between January 1965 and July 1974 Local 28 admitted 1103 new members, 79.78% from the apprentice program, 9.07% through the use of written and practical examinations, 5.98% via transfer from sister unions, and 2.81% from newly organized sheet metal shops. Of the 1103 new members, 111 or 10.06% were non-white.
10. Local 28 does not maintain a hiring hall. Referral and hiring are done informally, through word of mouth and contacts with other members, apprentices and contractors. Sometimes business agents call Local 28 members and advise them of job opportunities; sometimes members call the agents seeking information on work openings. In good times, each business agent makes a job referral approximately five to ten times a week.
11. Local 28 refused to participate in the New York Plan when it was in effect in New York City. The Plan was a joint industry, City and State effort to increase participation of minority employees in the construction trades.
B. The Contractors' Association
12. The Contractors' Association is an association of building contractors in New York City who are engaged in sheet metal construction work. It has a collective bargaining agreement with Local 28, and its members employ approximately 70-80% of the union's members and apprentices.
13. The manpower requirements of the Contractors' Association is a mandatory subject of collective bargaining by and between the Association and Local 28.
C. JAC and the Apprentice Program
14. JAC is a joint labor-management committee composed of representatives of Local 28 and of the Contractors' Association. It administers the Local 28 apprentice program.
15. A non-white individual has never been a member of JAC.
16. Since 1964 the operation and organization of the apprentice program has been governed by the Standard Form Union Agreement (the Collective Bargaining Agreement), the order and opinion in State Commission on Human Rights v. Farrell, supra, which includes the Corrected Fifth Draft of Standards for the Admission of Apprentices for the Sheetmetal Industry of New York City, New York (Corrected Fifth Draft), JAC's Agreement and Declaration of Trust, and JAC's Rules and Regulations.
17. In 1965 non-white enrollment in the apprentice program was.37%. It increased to a high of 21.80% in July 1967, fell to 9.77% in July 1973 and returned to 13.99% in July 1974.
18. The Local 28 apprentice program presently consists of eight terms of six months each. Apprentices attend ten all-day class sessions per term, receiving eight hours of pay for each such session.
The other days they work for employers who have collective bargaining agreements with Local 28.
19. Under the most recent (1972) Collective Bargaining Agreement apprentice classes are to be appointed every six months, and the size of the entire program is to be stabilized at 568 apprentices. Between January 1, 1972 and July 1, 1974 the total number of apprentices enrolled in the program has decreased:
January 1, 1972 -568
July 1, 1972 -482
November 11, 1972 -517
January 1, 1973 -498
July 1, 1973 -399
January 1, 1974 -323
July 1, 1974 -286
20. An apprentice must pass a physical exam and be between the ages 18 and 25 at the time of admission, although exceptions up to age 30 are made for time spent in military service.
21. Since 1969, as a result of the Corrected Fifth Draft contained in the New York Supreme Court decision in State Commission on Human Rights v. Farrell, supra, apprentices are required to have high school diplomas or equivalency certificates at the time of admission. For the years 1967-1968 only three years of high school education were required. For the years 1965-1966, only two years of high school education were required. Prior to 1965 apprentices were appointed from an applicants list, with high school diplomas, veteran's status and recommendations of relatives by members of Local 28 receiving some weight in the appointment process.
22. Application forms utilized for the apprentice program require the applicant to list his police record, if any, and his citizenship.
23. Applicants satisfying the age, education and physical requirements are admitted to the apprentice program in accordance with the ranking obtained on an apprentice entrance exam. There is no cut-off pass/fail score for the entrance exam, which is an aptitude exam consisting of tests in five areas (the JAC battery):
d) mathematical computations and ...