The opinion of the court was delivered by: TENNEY
This is an action presently brought by the Equal Employment Opportunity Commission ("EEOC") in a complaint signed by the Attorney General of the United States in May 1972 under the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., pursuant to authority granted to the Attorney General in that Act, Act of 1964, 42 U.S.C. § 2000e-6(a),
and filed herein on June 13, 1972. This Court has jurisdiction pursuant to 28 U.S.C. § 1345 and 42 U.S.C. § 2000e-6(b).
The defendants are local unions or divisions of such unions engaged principally in the operation and maintenance of construction equipment, and contractors' associations with whom such unions or divisions thereof have collective bargaining agreements all, with minor exceptions, within the Southern District of New York. The action was tried to the Court solely as to liability. Accordingly, with the exception of a brief appearance by defendant General Contractors Association of New York, no defendant contractors' association was represented at the trial of the limited issue of liability.
The complaint alleges that Locals 14 and 15 of the International Union of Operating Engineers (hereinafter Locals 14 and 15) including the former's affiliate Local 14B and the latter's subdivisions 15A, B, C and D (hereinafter Locals 14B, 15A, 15B, 15C and 15D) are engaged in a pattern and practice of resistance to full enjoyment of nonwhite and Spanish surnamed workers of rights secured to them by 42 U.S.C. § 2000e-2(c) and § 2000e-2(d). This pattern or practice of resistance is alleged to include, but is not limited to, the following specific acts and practices:
"(a) Failing and refusing to admit non-white and Spanish surnamed workers into the defendant unions as journeymen members on the same basis as whites are admitted;
(b) Failing and refusing to refer non-white and Spanish surnamed workers for employment within their respective jurisdictions on the same basis as whites are referred by applying standards for referral which have the purpose and effect of insuring referral priority to their members, a substantial number of whom are white;
(c) Failing and refusing to permit contractors, with whom the defendant unions have collective bargaining agreements, to recruit black and Spanish surnamed workers on the same basis as whites are recruited;
(d) Failing and refusing to permit contractors with whom the defendant unions have collective bargaining agreements to fulfill the affirmative action obligations imposed upon these contractors by Executive Order 11246 by refusing to refer for employment non-white and Spanish surnamed workers whom such contractors wish to employ;
(e) Failing and refusing to take reasonable steps to make known to non-white and Spanish surnamed workers the opporunities for employment in the trades under their jurisdictions, or otherwise to take affirmative action to overcome the effects of past racially discriminatory policies and practices; and
(f) Failing and refusing to file accurate reports with the Equal Employment Opportunity Commission;
(g) Failing and refusing to take reasonable steps to overcome the effects of past racially discriminatory policies and practices." (Complaint para. 13).
It is charged that Local 14 has approximately 1,600 members and that "there are few non-white and Spanish surnamed persons in [that membership]." (Complaint para. 3). It is further charged that Local 15 and its subdivisions have approximately 5,650 members, the composition of which is as follows: Local 15 has 2,002 members of whom 267 are nonwhite or Spanish surnamed; Local 15A has 670 members, of whom 87 are nonwhite or Spanish surnamed; Local 15B has 363 members, of whom 47 are nonwhite or Spanish surnamed; Local 15C has 1,340 members, of whom 212 are nonwhite or Spanish surnamed; and Local 15D has 1,275 members, of whom 155 are nonwhite or Spanish surnamed. (Complaint para. 5).
It is charged that Local 14 has collective bargaining agreements with defendants Building Contractors' and Mason Builders' Association, the Cement League, the Stone Setting Contractors' Association, the Allied Building Metal Industries, the Rigging Contractors Association, and the Contracting Plasterers' Association; that Local 15 has collective bargaining agreements with defendants The Iron League of New York City, Inc., the Construction Equipment Rental Association, the General Contractors Association of New York City,
the Building Contractors' and Mason Builders' Association, the Cement League, the Stone Setting Contractors' Association, the Allied Building Metal Industries, the Rigging Contractors' Association, the Contracting Plasterers' Association, and the Equipment Shop Employers, and that under the provisions of these collective bargaining agreements and the practices developed thereunder, Locals 14 and 15 control employment opportunities in the operating engineers' trade within the City of New York and in the surveyors' trade within the City of New York and the counties of Westchester, Putnam, Dutchess, Nassau and Suffolk within the State of New York. (Complaint paras. 4, 9 and 11). The defendants with whom Locals 14 and 15 have collective bargaining agreements are hereinafter referred to as the "contractors' associations".
The complaint seeks injunctive relief against the alleged discriminatory practices.
Background of Locals 14 and 15
(1) Locals 14 and 15 are chartered locals of the International Union of Operating Engineers ("IUOE") and are governed by the same International Constitution. (Pre-Trial Order at 7, para. 6(a); at 9, para. (a) (hereinafter "PTO"); Tr. 27, 48). The trade jurisdiction of Local 14 includes both building work and heavy construction work. Heavy construction work includes digging foundations for buildings, driving piles on those foundations, and building docks, bridges, sewers, tunnels and roads. The building work includes most hoisting equipment although hoisting work occurs in other areas, e.g., tunnel and bridge work.
(2) Local 14B is not, strictly speaking, a "branch" or "division" of Local 14 since it was issued its own charter from the IUOE as an organizing local on December 31, 1938 (PTO at 7, para. 6(a)). The trade jurisdiction of Local 14B includes the operation of hoisting equipment in private scrapyards and brickyards, some well-digging work, and stevedoring operations on the waterfront of New York. (Tr. 388, 484-85).
(3) Local 15's trade or work jurisdiction primarily consists of the operation and maintenance of equipment for building and heavy construction sites, and related work, including welding and surveying. (Tr. 20-22). It is one Union with five branches which operate under the direction and control of the parent Local Union, and are governed by a single set of by-laws and officers. The membership of Locals 15 and 15A includes operating engineers, maintenance engineers, and welders on heavy construction and building sites, as well as relatively unskilled oilers, helpers, general maintenance personnel or skilled mechanics who do not operate heavy equipment machinery. Local 15B covers persons doing maintenance work at the Port Authority of New York and various racetracks in New York State. Local 15C covers maintenance engineers for construction equipment who work in indoor repair shops run either by equipment dealers or construction contractors, and who range from unskilled helpers to grade A and B engineers. Local 15D covers field engineers engaged in surveying work on heavy construction or building sites. The surveyor categories include the relatively unskilled rod man, the transit man and the chief of party. (Tr. 22-24, 345-46, 356-57; Pl. Ex. 7 (hereinafter "PX")).
(4) The geographic jurisdiction of Locals 14 and 15 is New York City,
and they are the only operating engineer locals in the country which are chartered with the same geographic jurisdiction.
(5) Despite the contentions of the EEOC, Local 14 has never recognized Local 15 as its apprentice Local or had apprentice jurisdiction of the latter,
although the latter has apprentice jurisdiction and furnishes a substantial number of new members for Local 14, i.e., 50% (Tr. 425, 516-17; PX 13A, at 153, 738; PTO Attachment B, para. 29). There is no provision for the "automatic" transfer of Local 15 members into Local 14, and a member of Local 15 seeking to transfer from Local 15 to Local 14 must go through the same admission procedures as any applicant seeking admission.
(6) Local 15 is an amalgamation of Locals 130A, 125A and 184A which covered apprentices, junior engineers (helpers and oilers) and some operating engineers on all building and heavy construction equipment in New York City, while Local 14 is an amalgamation of the parent locals 130, 125, 184 and 403 which covered most of the operators of such equipment. (Tr. 43-47, 51-53, 382, 508-10, and 516). To become an operator in one of Local 14's predecessors, one had to serve first as an apprentice in one of Local 15's predecessors. However, when the amalgamation took place in 1937, Local 15 did not want to be primarily an apprentice union, and therefore it was given jurisdiction over some equipment operators also. As a result of these amalgamations, the IUOE, in issuing the charters in 1937, assigned Local 14 responsibility for large hoisting equipment, certain small hoisting and construction equipment operated above the ground level, and certain large construction equipment used at the ground level or underground. Local 15 was assigned responsibility for most heavy construction equipment, including the smaller versions of some Local 14 machinery and smaller hoisting equipment.
(7) The type of equipment utilized by Local 14 men includes hoisting equipment such as cranes and derricks, as well as pile drivers, drag lines, power shovels, backhoes, graders, rollers, mixers, compressors, well drilling inclines and welding machines. (PX 40-E, at 15-18).
(8) The type of equipment utilized by Local 15 men includes cherrypickers, loaders, scrapers, graders, bulldozers, tractors, power shovels, fork lifts, and mixers. (PX 40-E, at 18-22).
(9) Although some of the equipment utilized by Local 15 is comparable to equipment utilized by Local 14, the equipment utilized by Local 14 is generally larger, or utilized in a different area.
Local 15 does not have jurisdiction to operate cranes. Its members do operate "cherrypickers", which require a New York City license, but not for the same operations as the cranes under Local 14's jurisdiction.
(10) The City of New York requires the operators of certain Local 14 and Local 15 equipment to be licensed by the City. Most of the welders for Local 15 must be certified (Tr. 20-21, 330) and members of Local 15 who operate cherrypickers must hold Class "C" New York City licenses. Operators of large hoist machinery must have a New York City Type "A" or "B" hoist machine operators' license. The actual requirements are specified in Local Law No. 73. (PX 112, at 2).
The first requirement for admission to Local 14 is, and has been, that all applicants be licensed engineers in accord with the laws of the City of New York. (PX 6A, at 5; PX 6B, at 7; PX 6C, at 9; PX 6D, at 9; PX 63; PX 112; Tr. 427, 437, 512, 623, 1775, 1812, 1841, 1889 and 3840).
Although certain equipment operated by Local 14 is specifically exempt from the licensing requirement, i.e., front-end loaders, scrapers, backhoes, power shovels, gradalls, tunnel mucking machines, back-filling machines, compressors, wellpoint pumps, concrete mixing machines, welding machines, spreaders, locomotives, rollers and drag lines (Tr. 3832-33), on any particular project 75 to 95 percent of the equipment under Local 14's designated craft jurisdiction must, when operated within the City of New York, be under the control of an operator licensed by the City. (Tr. 500, 585-86, 1825-26 and 3838).
Moreover, although Local 14 operates equipment not requiring a license, its collective bargaining agreements give the employer the right to shift a man from one piece of equipment to another irrespective of whether such piece of equipment requires a license to operate.
(11) Examinations for the "Hoisting Machine Operator" are administered semi-annually by the Department of Personnel of the City of New York. (Tr. 431, 1941, 1954). The examination consists of two parts, a written examination of seventy questions and a practical operational examination on a crane, compressor, bulldozer or front-end loader. (Tr. 1941, 1953-55). To be eligible to file an application to take the examination, an applicant must be at least 21 years of age, able to read and write the English language, and have at least two years experience as an oiler or as an assistant to an operator on cranes, derricks or cableways. (Defs. Ex. B (hereinafter "DX")).
(12) In addition to the license requirement for admission to membership in Local 14, an applicant ordinarily will not be granted admission unless he has 200 days of work experience on heavy equipment and satisfactory performance on two or more pieces of such heavy equipment, e.g., power shovels, draglines, backhoes, clamshells, piledrivers, cranes and double drum derricks (PX 6D), although he may be referred out to work as a "permit" man. (Tr. 449-52, 459, 557). Also, in order to become a member of Local 14 an applicant who has no prior affiliation with any operating engineers' local must have two members of Local 14 sponsor his admission. (Tr. 457, 498; PX 6D).
(13) Local 15 expressly "reserves the right to prescribe its own rules with respect to acquisition and retention of membership within the framework of the governing constitution of the International Union" (PX 7, Art. IV, Sec. 1) and any candidate "must be a qualified and competent person and otherwise fulfill the requirements of the Constitution of the International Union of Operating Engineers." (Id., Art. IV, Sec. 2).
(14) Locals 14 and 15 are the exclusive bargaining agents for 95% of the persons operating and maintaining construction equipment and doing surveying work within their respective trade and geographic jurisdictions. The Locals have collective bargaining agreements with a large number of employers and employers' associations (PX 40-60) which require the employers to recognize the Union as a source of qualified employees (e.g., PX 50C, at 3; PX 46, at 3). Although there are instances where employers may initially hire nonunion help directly, both unions effectively control the work opportunities within their jurisdiction. Until the forties, Locals 14 and 15 had closed shop contracts with employers which required these employers to hire only union members. (Tr. 59).
(15) Locals 14 and 15 have the following officers elected by the membership, which officers are primarily responsible for the affairs of the Union including the negotiation of collective bargain agreements: President, Business Manager, Vice President, Secretary and Treasurer. (PX 6, at 2; PX 7, at 5).
(16) The Business Manager is the principal officer of the Unions (PX 6C, at 4; PX 7, at 6-11; Tr. 18). The Local 15 Business Manager appoints the business agents or representatives for each of Local 15's branches.(PX 7, at 7). Local 14's Business Manager also appoints Local 14's business agents (PX 5D, Art. XXIII, Subdiv. 1, at 82). Local 14 and some branches of Local 15 have dividede responsibilities among their business agents on a geographic basis.These business agents in the course of their duties are primarily responsible for conducting the day-to-day affairs of their branches.
(17) Local 14 has never had a Black or Spanish surnamed (hereinafter "minority") person serve as President, Business Manager, Vice President, Treasurer, business agent, or a member of any executive board, or committee to examine the qualifications of applicants for membership. (PX 39, at 3-13). Local 15 never had a minority member serve as such an officer until 1972 when a minority member was made a trustee (PX 38, at 8) and, later in 1975, was appointed as a member of its Executive Board. Another minority member was appointed as an auditor in May 1973, apparently following the death of another minority member serving as auditor (PX 38, at 10), and shortly thereafter became a trustee (Tr. 3247).
(18) When first chartered in 1937, Local 15's membership was almost all white (Tr. 57-59). As of September 1, 1974, Local 15 had 6,362 members of whom 415 (6.5%) were minority persons. These were divided among the five branches as follows (PX 98 and 99):
Members Members % of Total
15 2,411 134 5.6%
15A 702 99 14.1% 7.5%
15B 326 47 14.4%
15C 1,491 59 4.0%
15D 1,332 76 5.7%
Of these 415 minority members, 124 (or 31.1% of the total) were admitted after this lawsuit was filed in July 1972 as follows (PX 99):
Of these 415 minority members, 318 (or 76.6% of the total) have been admitted since July 2, 1965, the effective date of the Civil Rights Act of 1964, as follows (PX 99):
Of the 318 minority members admitted since July 1, 1965, 124 were admitted since this suit was instituted in 1972 and 194 prior thereto.
The approximate membership and minority membership of Local 15 from January 1, 1960 to November 1974, has been as follows:
Total Minority %
1/1/60 3,094 30 1%
1/1/64 4,584 78 1.7%
1/1/65 4,680 93 2%
1/1/66 4,772 99 2.1%
1/1/67 4,740 112 2.4%
1/1/68 4,984 135 2.7%
1/1/69 5,153 171 3.3%
1/1/70 5,252 202 3.8%
1/1/71 5, 494 240 4.4%
1/1/72 5,661 273 5.7%
11/1/7 4 6,362 415 6.5%
(19) As of September 1, 1974, Local 14 had 1,555 members, of whom 44 (2.8%) are minorities; 1,398 are in Local 14, of whom 24 (1.7%) are minorities; and 157 are in Local 14B, of whom 20 (13.3%) are minorities. Two of these 44 minority members are Spanish surnamed.
(20) Members of Locals 14 and 15 generally have no more than a high school education and neither union requires applicants to have a high school education (PX 5D, at 29-30; PX 6C, at 8-10; PX 7, at 14-15). The available labor pool for operating engineers in the New York City area today, as well as in the past, consists primarily of males living in the union's jurisdiction who have a high school education or less.
(21) The Black percentage of the New York City male labor force is 18.18% and the Spanish surnamed percentage of that labor force is 12.67%. Therefore, for the purposes of this suit the minority percentage of the New York City male labor force is 30.85%.(PX 1A, Table A(2), at 3).
(22) The Black percentage of the New York City male labor force 16 years of age and over who have a high school education or less is 20.76%. The Spanish percentage of such labor force 16 years of age and over who have a high school education or less is 15.63%. Therefore, for the purposes of this suit, the minority percentage of such labor force 16 years of ...