decided: March 8, 1976; As Amended May 11, 1976.
Appeal from judgment of the United States District Court for the Southern District of New York, Henry F. Werker, Judge, granting affirmative relief against union, employers organization and Joint Apprenticeship Committee under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, to remedy racially discriminatory employment practices.
Smith and Feinberg Circuit Judges, and Ward,*fn* District Judge. Feinberg, Circuit Judge.
This appeal requires this court to confront, again, one of the most important and difficult questions currently facing the federal judiciary: the nature and scope of permissible remedies under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.
Local 28 of the Sheet Metal Workers' International Association (hereinafter Local 28) is a union, based in New York City, with about 3,500 members. Of this number, approximately three percent are persons of minority descent.*fn1 The sheet metal workers who belong to Local 28 fabricate and install ducts and other equipment for ventilating, air-conditioning and heating systems. Local 28 maintains jurisdiction over all five of the City's boroughs and exercises complete control over entry into the sheet metal trade in New York City.
The Sheet Metal and Air-Conditioning Contractors' Association of New York City, Inc. (hereinafter the Contractors' Association) is a trade organization of builders who do sheet metal construction work. The Contractors' Association has a collective bargaining agreement with Local 28 and the firms which compose the Association normally employ 70-80 percent of the members of Local 28.
The Joint Apprenticeship Committee (hereinafter the JAC) is a body of three representatives from Local 28 and the Contractors' Association which oversees a training program for apprentice sheet metal workers. This program involves four years of classroom and on-the-job training at the end of which time the apprentices normally graduate to journeyman status and full membership in Local 28.
This appeal has its origins in a broad-reaching action initiated by the Justice Department*fn2 against several New York City construction unions under Title VII of the 1964 Civil Rights Act. That action charged the defendant unions and their respective apprenticeship programs with instituting and maintaining discriminatory membership policies in violation of federal law. However, the various unions were granted separate trials and, thus, the only defendants-appellants in this appeal are Local 28, the JAC, and the sheet metal Contractors' Association.*fn3
In the proceeding below in the United States District Court for the Southern District of New York, Local 28 and the JAC were found to have violated Title VII's ban on discriminatory employment and membership practices. The court, Henry F. Werker, Judge, thereupon ordered a variety of remedial actions, including, inter alia, the institution of a court-appointed administrator to oversee Local 28 and the JAC, the payment of back pay to certain victims of past discrimination, the imposition of a remedial racial membership goal upon Local 28 and the replacement of one of the present JAC representatives with a new representative of minority descent.
Local 28 and the JAC appeal from Judge Werker's factual findings as to past discriminatory practices. They also contest the nature of the remedy ordered below. The EEOC and the City of New York seek to uphold the factual findings and the remedial order of the district court except that they seek modification of Judge Werker's back-pay order so as to expand the class of persons eligible for a back-pay award.
For the reasons outlined below, we modify the district court's order and, as modified, affirm.
Local 28 and the JAC are no strangers to the courts. In 1964, the New York State Commission for Human Rights, after an administrative hearing, found that Local 28 and the JAC had maintained discriminatory hiring practices in violation of New York law. That finding was specifically affirmed, upon review, by the Supreme Court of New York. State Commission for Human Rights v. Farrell, 252 N.Y.S.2d 649, 652, 43 Misc.2d 958 (Sup. Ct., N.Y. County, 1964). As a result of that judgment, Local 28 and the JAC have been subject to a state judicial decree mandating certain procedures to insure nondiscriminatory recruitment and membership practices.
In April and July of 1974, Judge Murray I. Gurfein, sitting in the United States District Court for the Southern District of New York, issued interim orders against Local 28 and the JAC, requiring that certain minority applicants be accepted into the sheet metal apprenticeship program. Finally, Judge Henry F. Werker, after a three-week trial beginning in January of 1975, found that Local 28 and the JAC had violated Title VII. It is the findings and remedies of this last proceeding which are presently on appeal.
Local 28 and the JAC argue here that there was insufficient evidence to support Judge Werker's findings. We disagree.
The provisions of Title VII relevant here make it unlawful for a labor union, such as Local 28, "to discriminate against, any individual because of his race . . . or national origin," to refuse "applicants for membership . . . because of such individual's race . . . or national origin," and to "cause an employer," such as the members of the Contractors' Association, "to discriminate against an individual" on account of race or national origin. 42 U.S.C. § 2000e-2(c). In addition, Title VII forbids a labor union or apprenticeship committee, such as the JAC, from discriminating "against any individual because of his race . . . or national origin." 42 U.S.C. § 2000e-2(d).
In the record before Judge Werker, there was ample evidence to find that Local 28 and the JAC had violated these statutory provisions.
There are four means by which an individual can be admitted to membership in Local 28. The majority of Local 28 members are admitted upon graduation from the apprenticeship program administered by the JAC. In addition, persons in allied, "sister" unions in the construction industry may be allowed to transfer directly into Local 28, without prior training in the apprenticeship program. There is a third route onto the Local 28 membership rolls by which an individual may take a battery of journeyman-level tests, without formal apprentice training or membership in an allied union, and upon passage of these examinations, the individual is certified as a journeyman and admitted to Local 28. Finally, sheet metal workers in nonunion shops become members of Local 28 if Local 28 subsequently organizes their shop, and if their employer certifies that his workers perform at journeyman standards. Local 28 also issues temporary work permits to individuals who are not permanent members of the union of sheet metal workers.
There is ample evidence that all the routes into Local 28 have been blocked to minority group members as a result of discriminatory practices by Local 28 and the JAC. The trial record in this case is voluminous and the facts before the district court were more than adequate to sustain its findings. We describe some of these facts briefly to indicate the consideration behind our decision that, as Judge Werker found, Local 28 and the JAC have consistently and egregiously violated Title VII.
Entrance into the apprenticeship program is gained by passing certain written and manual tests and by possession of a high school diploma. The evidence is clear that these requirements disqualify blacks and Spanish-speaking applicants to a far greater extent than they disqualify nonminority applicants to the apprenticeship program.
Under Griggs v. Duke Power Co., 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971), job requirements which disqualify minority group members to a significantly greater extent than they disqualify whites violate Title VII unless it can be demonstrated that the requirements are "job-related."*fn4 See also 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); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Vulcan Society of the New York City Fire Department, Inc. v. Civil Service Commission, 490 F.2d 387 (2d Cir. 1973). This burden of proof Local 28 and the JAC have failed to meet.
To sustain their burden of proving job-relatedness, Local 28 and the JAC relied upon the expert testimony of an industrial psychologist, Dr. Judith Gottesman of the Stevens Institute of Technology. However, Dr. Gottesman's testimony was, at best, equivocal in its implications and was clearly insufficient to sustain the union's claim of job-relatedness.
Dr. Gottesman indicated that, for technical reasons primarily related to sample size, it was impossible to determine whether or not the entrance exams used for admission to the apprenticeship program bear any relation to on-the-job abilities at the end of the training program. Indeed, Dr. Gottesman, responding to the dearth of evidence as to the job-relatedness of these entrance examinations, had suggested that most of the tests in use be abandoned and others added in their place. This the JAC and Local 28 have declined to do.
Moreover, even if the tests used for entrance into the apprenticeship program were found to be job-related, other aspects of Local 28's behavior would sustain a finding of discrimination in the operation of the apprenticeship program. The 1964 New York state court decision, State Commission for Human Rights v. Farrell, supra, dwelt heavily upon admissions into the apprenticeship program and required the use of objective admissions tests rather than the nepotistic criteria for admissions to apprenticeship in use until then. Local 28 responded to this order by establishing, with union funds, "cram courses" for the sons and nephews of present union members in order to prepare them for the entrance tests. This was contrary to the spirit and letter of the New York court's order.
Of course, a cram course available to all applicants would be a different matter. But the decision to use union funds to help sons and nephews circumvent the objective tests required by the court evinces bad faith on the part of Local 28.
The evidence with respect to the other means of union admission reveals a pattern of more blatant discrimination.
Despite intense pressure from its International Association, Local 28 has historically refused to organize the blowpipe industry in the New York area. The blowpipe work force which Local 28 has refused to organize is predominantly of minority descent and, according to the testimony of one contractor, it is "common knowledge" in the industry that Local 28's attitude towards the blowpipe workers is a result of their racial make-up. Eventually, the International Association had to organize these workers separately since Local 28 refused to do so.
There is thus a separate union in New York City predominantly composed of minority group blowpipe workers. This group has been kept at arm's length by Local 28 ...