Equal Employment Opportunity Commission v. Local 638

565 F.2d 31, 15 Fair Empl. Prac. Cas. (BNA) 1618, 1977 U.S. App. LEXIS 11136, 15 Empl. Prac. Dec. (CCH) 7894

• Court: Court of Appeals for the Second Circuit
• Decided: October 18, 1977
• Docket: No. 1302, Docket 76-6003
• Status: Published

Opinions

J. JOSEPH SMITH, Circuit Judge:

Local 28 of the Sheet Metal Workers’ International Association (“Local 28”) and the Local 28 Joint Apprenticeship Committee (“JAC”) appeal from an Affirmative Action Program and Order (“AAP&O”) entered in the United States District Court for the Southern District of New York, Henry F. Werker, Judge, following a finding that Local 28 and JAC had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by discriminating against non-whites in various membership practices.

Local 28 and JAC appealed the finding of liability and the remedies initially imposed by the district court.¹ We affirmed the finding of liability and approved the AAP&O subject to two modifications. 532 F.2d 821 (2d Cir. 1976). A revised plan and order, pursuant to our opinion, was entered by the district court on January 19, 1977.² The instant appeal challenges six provisions of this revised affirmative action plan. Our previous opinion covers the factual and legal background of the appeal, and we turn directly to the questions now before us.

For the reasons outlined below, we affirm the district court’s order.

The Examining Board

In accord with Judge Werker’s order, a court-appointed administrator was granted extensive supervisory power over Local 28 and the JAC. The administrator is responsible for developing and enforcing detailed plans for achieving the goals outlined in Judge Werker’s decree. As part of this responsibility the administrator drafted the revised affirmative action plan finally approved by the district court. The plan calls for replacing the established Local 28 Examining Board, responsible for administering a practical test designed to evaluate the ability of applicants to perform duties required of sheet metal journeymen (“the ‘hands-on’ journeymen’s test”) with a Board of Examiners, knowledgeable in sheet metal work, consisting of one union representative, one representative selected by the plaintiffs, and one member selected by the administrator. The former Examining Board had consisted of three white members of Local 28 and a chairman. Two of the three members named to the new three-member board are non-white. Appellants challenge the provisions for a three-person board as unnecessary and improper, as reverse discrimination, and as an abridgment of union self-government.

Between 1959 and 1975 entry of judgment below the established Local 28 Examining Board had conducted only two journeymen tests, one in 1968 and one in 1969, both under constraint of arbitration awards won by the employers’ Contractors’ Association to force the union to increase its manpower. Only 24 men, all white, were admitted from among 339 applicants of whom about 15% were non-white, following the 1968 test. The district court concluded that “the test served more as an obstacle to, than a vehicle for, the admission of new journeymen. . . . [T]he exam clearly had an adverse impact on nonwhites, and as such, without validation, was violative of Title VII.” 401 F.Supp. 484. There is ample support for the district court finding in the record. The scope of a district court’s remedial powers under Title VII is determined by the purposes of the Act. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Having found a violation of the Act, the district court was not only within its power but under an obligation to fashion a remedy for the violation. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). The substitution of the Board of Examiners for the former Examining Board was an appropriate measure designed to assure impartial administration of the journeyman test. The court order did not specify any particular racial makeup of the new board, and the charge of “reverse discrimination” raised by appellants is entirely unfounded.

Direct Admission Based on Experience

The revised affirmative action plan permits persons who have had four years’ experience in sheet metal work or reasonably related experience to apply for direct admission to the union. Applicants must satisfy the Board of Examiners that they have the requisite sheet metal experience. Direct admission was contemplated by this court in its earlier decision where we stated that

[A] heavy burden may be placed upon direct qualification and admission and transfer from allied unions as the means of reaching the 29 percent membership goal. This however seems most appropriate under the circumstances. The persons who are presently eligible for transfer into Local 28 are the persons who have felt the brunt of the union’s past discriminatory practices. They are largely older individuals who have been denied entry into Local 28 in the past or who have been forced into essentially segregated unions as a result of Local 28’s practices.

532 F.2d 832. Only one year’s experience is required to qualify for the journeyman test. There is no reason why persons with substantially more experience, those previously excluded from Local 28 for racial reasons, should be forced to take the journeyman test. Screening by the Board of Examiners provides adequate assurance that unqualified applicants will not be admitted to the union. We find other objections to direct admission raised by appellants to be wholly without merit.

Reduction and Deferment of Initiation Fees

Appellants object to provisions in the affirmative action plan which permit persons admitted to apprentice or journeyman status to apply for payment of reduced or deferred initiation fees. Application for reduction or deferment must be approved by the union Executive Board or the administrator. Where granted it is designed to permit new members to pay initiation fees which do not exceed the amount of the lowest initiation fee charged to any white individual who was admitted to membership at the time the non-white would have been eligible for membership absent discrimination. This provision was part of the AAP&O approved by us on the previous appeal and at that time was not challenged by appellants. Since we find the provision to be an appropriate remedy designed to eliminate the vestiges of past discrimination, Rios v. Enterprise Association Steamfitters, Local 638, 501 F.2d 622, 629 (2d Cir. 1974), we reaffirm our earlier approval of this provision.

Indenturing of Apprentices and Work Rotation by Apprentices

Under the plan approved by the district court, the JAC is required to indenture two classes of apprentices each year through July 1982, the number to be indentured to be determined by the JAC, subject to review and revision by the administrator in the light of the goals and objectives of the revised affirmative action plan.³ Appellants challenge this provision on the ground that it interferes with union self-government, and that it is improper because it denigrates the apprenticeship examination and will not further the affirmative action goal. We reject the union’s challenge on all grounds. The authority to require the regular indenture of a minimum number of apprentices is established. Rios, supra, 501 F.2d 626, 634. The administrator was justified in concluding that the long litigation history of Local 28, dating back to 1964, which resulted in a non-white population of only 3.19% in July 1974 and 5.77% in December 1976, required vigorous efforts to assure non-white union membership. Indenture of apprentices is a major route of entry to union membership and as such is appropriately subject to administrator oversight. The balancing of the need for training workers against existing economic conditions is appropriately left to his informed discretion. The number of employees ultimately hired is left to the collective bargaining process, and the indenture provision is designed to assure that non-white apprentices will be available for hire when openings occur.

To insure equal opportunity for employment of apprentices a formal referral system has been incorporated in the affirmative action plan. Apprentices are grouped according to classes with a record kept for each apprentice of the number of manhours worked. Apprentices are to be referred out in inverse order of the number of hours worked, and the JAC is directed to rotate the groupings as far as feasible to assure that no one grouping receives a disproportionate share of the work. It is essential that all apprentices have some opportunity to work in order to keep them from dropping out of the program. The rotation system does not abrogate an existing seniority system. Furthermore, counsel for the Contractor’s Association conceded that job seniority “has never been the practice in the industry.” (Appendix at 1493.) The forced rotation plan is a reasonable method for assuring that all apprentices get a fair allocation of work, especially in a depressed labor market where there are relatively few work opportunities.

The Residence Requirement

The revised AAP&O provides two routes for direct admission to the union, the “hands-on” journeyman test and admission based on four years’ experience. Both routes require candidates to be residents of New York City or of one of specified nearby counties.⁴ The union challenges this residence requirement on the ground that the jurisdiction of Local 28 is restricted to New York City and that it is therefore inappropriate to permit non-City residents to qualify for direct admission. Appellees counter by pointing out that Local 28 never had a residence requirement and that some of its officers and members reside outside of New York City.⁵ For this reason, appellees argue, it is reasonable to permit non-New York City residents to qualify for the direct admission programs. Since current union members are drawn from counties outside of the City, we see no valid reason for restricting the direct admission programs to City residents, and approve the residence requirements of the AAP&O.

The Non-White Membership Goal

The union attacks the use of a membership goal computed on the basis of the white/non-white ratio of the labor pool in New York City, while permitting the drawing of new members from a wider area which, if used as the labor pool, arguably could substantially alter the ratio. We think this attack not well founded under the circumstances of this case. On the showing made on the first appeal we approved the 29% ratio as a goal. The district court has now sanctioned drawing applicants from a wider area on a showing that some of the present membership in fact resides in the wider area. On this record we think the jurisdiction of the union is a permissible boundary of the labor pool for setting the goal initially, absent any indication that the jurisdictional boundary is set or manipulated for purposes of discrimination. Some flexibility in permitting nearby residence is in accord with present practice and unlikely greatly to change the ratios. We note that the City of New York does not object, indeed supports the plan as approved.

It is true that we have recently held that “where a significant number of union members come from outside the union’s geographic jurisdiction, the court must widen its sights; the appropriate reference area then should be that region from which the union draws its members.” EEOC v. Local 14, 553 F.2d 251, 254 (2d Cir. 1977). See also Hazelwood School District v. United States, — U.S. —, n. 17, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977). In Hazelwood and in Local 14, however, the court was concerned with a statistical basis for a finding of discrimination. Here we have no such problem, discrimination having been established by direct evidence of long-standing practices. See EEOC v. Local 638, 532 F.2d 821, 826.⁶

Judge Werker carefully analyzed the available statistics as to the make-up of the labor pool in the jurisdictional area in arriving at the 29% ratio. If an insignificant number of union members live in New Jersey and the outlying New York counties we see no inconsistency between using a membership goal based on a New York City labor pool and permitting individual applicants for union admission to live outside the City. EEOC v. Steamfitters, 542 F.2d 579, 591 (2d Cir.), cert. denied, 430 U.S. 911, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977). Had it been established that a “significant number” of Local 28 members resided outside of New York City, it might have been necessary to redefine the relevant labor pool for Local 28 accordingly.⁷ In the absence of a reliable basis for such findings we are satisfied that it was not error for Judge Werker to approve the application of the jurisdictional territory ratio to a membership drawn from a somewhat wider permissible residential area.⁸

Affirmed.

1 . While the initial appeal to this court was pending, the AAP&O was modified by the district court upon motion of the Equal Employment Opportunity Commission and the New York State Division of Human Rights in the light of changed working and employment conditions in the sheet metal industry in New York City.

2 . The district court’s findings and conclusions of law are reported at 401 F.Supp. 467 (S.D.N.Y.1975); the first AAP&O is reported at 421 F.Supp. 603 (S.D.N.Y.1975).

3 . The plan also called for indenturing no less than 36 apprentices by February 1977, and another class of apprentices by July 1977. f 19, Appendix 1846.

4 . For the “hands-on” journeyman test the counties listed are Nassau, Suffolk and West-chester in New York, and Essex and Passaic in New Jersey. Residence for the direct admission based on four years’ experience includes the above counties, plus Bergen, Hudson and Union counties, New Jersey, fl 7(c), Appendix 1839; Í1 12(a), Appendix 1842. No explanation is apparent for differing residence eligibilities for the two routes of entry.

5 . EEOC brief at 19; City of New York brief at 20; Appendix at 968; Appendix at 971-972.

6 . The argument that the union clearly had no control over the racial composition of transfers from sister locals or men in newly organized shops is refuted by the record in the earlier appeal, where there was evidence that Local 28 denied transfer to blacks while admitting whites from the same union with no greater qualifications.

7 . The labor pool figures would then be adjusted to include the entire area from which current members and applicants are drawn. If this were done, a new goal could be set based on the enlarged area but adjusted to reflect the relatively smaller number of union members drawn from the outlying areas rather than New York City as a result of the effect of distance, cost and time of travel, and other related factors.

8 . We fear that our dissenting brother has misconceived the basis for our earlier opinion in this case, 532 F.2d 821 (1976). It was based on direct and overwhelming evidence of purposeful racial discrimination over a period of many years. It did not rely on inferences from racial ratios of population and employment in the area to establish a prima facie case of discrimination.

We pointed out, 532 F.2d at 825-27, some examples of the direct methods employed to deny members of racial minorities entrance to the union, including discriminatory examinations for entrance to the apprenticeship program, cram courses paid for by union funds for sons and nephews of members, unavailable to minority applicants, refusal to accept the blowpipe workers for membership because of their predominantly minority make-up, consistent discrimination in favor of white applicants for transfer from sister construction unions while denying transfer to blacks with equivalent qualifications, issuance of temporary work permits to white members of allied construction unions, some from far away, while denying them to minority group sheet metal workers already residing in the New York City area.

We are not limited here, therefore, in determining proper relief by Local 14, 553 F.2d 251 (2d Cir. 1977), nor by Hazelwood School District v. United States, — U.S. —, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977), which were concerned with ratios as prima facie proof of discrimination. We see no need, therefore, to discuss the doctrine of the law of the case in relation to “self correction of judicial error.” Nor do we see the necessity for a retrial of the issue of racial discrimination, further prolonging this litigation after more than thirteen years of effort by state and federal tribunals to end the thoroughly proven discrimination.