Rios v. Enterprise Ass'n Steamfitters Local 638 of U.A.

501 F.2d 622, 1974 U.S. App. LEXIS 7971, 8 Empl. Prac. Dec. (CCH) 9488, 8 Fair Empl. Prac. Cas. (BNA) 293
CourtCourt of Appeals for the Second Circuit
DecidedJune 24, 1974
DocketNos. 647, 834, Docket 73-2110, 73-2266
StatusPublished
Cited by28 cases

This text of 501 F.2d 622 (Rios v. Enterprise Ass'n Steamfitters Local 638 of U.A.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rios v. Enterprise Ass'n Steamfitters Local 638 of U.A., 501 F.2d 622, 1974 U.S. App. LEXIS 7971, 8 Empl. Prac. Dec. (CCH) 9488, 8 Fair Empl. Prac. Cas. (BNA) 293 (2d Cir. 1974).

Opinions

MANSFIELD, Circuit Judge:

Once again we are confronted with questions arising out of the imposition of a specific racial membership goal upon a union as a means of dissipating the effects of its past discrimination against minority applicants for membership. See, e. g., United States v. Wood, Wire & Metal Lathers International Union, Local Union No. 46, 471 F.2d 408 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973). The present appeal is by Local 638, Enterprise Association of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Compressed Air, Ice Machine, Air Conditioning and General Pipefitters (the “Union”) from certain provisions of an Order and Judgment entered on June 21, 1973, after the consolidated trial of two actions in the Southern District of New York before Judge Dudley B. Bonsai, sitting without a jury. The portions of the Order appealed from relate to the admission of “non-whites” into Union [625]*625membership and into a joint employer-union apprenticeship program. The term “non-white” as so used is defined to mean black and Spanish sur-named workers. We remand the case for the purpose of reestablishing the percentage goals upon the basis of relevant statistical data. Subject to such modification the Order and Judgment are affirmed.

Two actions were consolidated for trial purposes by the district court. One is a suit filed by the government in 1971 under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against the Union and others to enjoin a pattern and practice of discrimination against non-whites in the construction industry. Joined as defendants were (1) several local construction unions, including Local 638, each of which represents a different branch of workers in the industry, (2) joint apprenticeship committees for the different branches, and (3) various associations of employers in the industry. Separate trials were ordered of the claims against each Union. On January 3, 1972, after a three-day hearing on the government’s application for preliminary injunctive relief, Judge Bonsai found that the Union had unlawfully discriminated in the past against non-whites, failing among other things to admit some 169 qualified non-white workers to membership. 337 F.Supp. 217 (S.D.N.Y.1972). He ordered the Union to admit them and temporarily enjoined a strike protesting an employer’s non-discriminatory action in laying off white and non-white workers when the work force was reduced upon the completion of a construction job. No appeal was taken from his findings, conclusions or order.

The government’s suit against the Union was consolidated for trial purposes with a class action against the Union and others by four non-white workers (known as the “Rios” action) claiming that the Union, the Mechanical Contractors Association of New York, Inc. (“MCA”) and the Joint Steamfitters Apprenticeship Committee of the Steamfitters Industry (“JAC”) had failed to admit non-whites to membership, had refused non-whites access to the steamfitters’ apprenticeship program on the same basis as whites, and had failed to provide non-whites with equal job opportunities, all in violation not only of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., but also of 42 U. S.C. §§ 1981 and 1983, and of the Fifth and Fourteenth Amendments. Prior to the consolidation of the Rios and government suits Judge Frankel, after hearing the application of the Rios plaintiffs for preliminary injunctive relief in their action, found, in an opinion filed on March 24, 1971, 326 F.Supp. 198, that the Union “ha[d] followed a course of racial discrimination over the years,” which had had the effect, among others, of wrongfully excluding three of the plaintiffs from membership in the Union. By way of preliminary relief the Union was ordered to admit the three to membership. No appeal was taken by the Union from this preliminary injunction.

Following the consolidated trial Judge Bonsai, in detailed findings and conclusions issued on June 21, 1973, 360 F.Supp. 979, found that, although the Union had taken some affirmative action since the entry of the preliminary injunction to increase non-white participation in the construction industry (principally by joining in a joint industry program called the “New York Plan,” which sought to recruit and find jobs for minority employees), it had continued its pattern and practice of discrimination against non-whites by failing to admit them to full journeyman status, by discriminating against them in work referral, and by participating in an apprenticeship program which discriminated against them.

In an Order and Judgment filed with his opinion the district judge enjoined the defendants from discriminating against individuals on the basis of race, color or national origin and directed the Union to receive and process applications for membership and references for employment and to administer its af[626]*626fairs in a nondiscriminatory manner. The Order appointed an Administrator, Vincent McDonnell, Esq., to implement its provisions and to supervise performance by the parties. The defendants were directed, within three months of the date of the Order, to submit to the Administrator an “affirmative action program” designed to secure the admission of a sufficient number of nonwhites to membership as journeymen in the Union’s A Branch “to achieve a minimum goal of 30% non-white membership by July 1, 1977.” (Members of the Union’s “A Branch” perform construction steamfitting work and generally receive higher hourly earnings than do members of the “B Branch,” who perform shop or repair work.) With a view to achieving the prescribed 30% goal, guidelines were established for direct admission to the A Branch membership and for the administration of the apprenticeship program, subject to such changes as might later be approved by the Administrator and the court.

The Order further directed that, during the three-month period following its issuance, certain “Transitory Provisions” were to be observed by the Union. Dur-ing this period the Union was directed to admit only (1) graduates of the Apprenticeship Program and (2) non-whites who had met certain experience or certification requirements or who had successfully completed a practical examination to be administered by a Board of Examiners. The Board, which was authorized to act by majority rule, consisted of the Administrator or his representative, a representative of the Union, and one chosen by the Administrator from a “minority referral” source. The Order required the defendants, within five days after its effective date, to submit a form of such practical examination for approval by the court and to administer the examination once a month, after such approval, giving advance notice to each applicant.

The Order further established temporary procedures for an apprenticeship training program during the period prior to adoption by the court of the “affirmative action program.” It specified that during 1973 there should be a minimum of 400 apprentices, of whom 175 should be non-white, indentured into a program not to exceed four years.

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Bluebook (online)
501 F.2d 622, 1974 U.S. App. LEXIS 7971, 8 Empl. Prac. Dec. (CCH) 9488, 8 Fair Empl. Prac. Cas. (BNA) 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rios-v-enterprise-assn-steamfitters-local-638-of-ua-ca2-1974.