United States v. Sheet Metal Wkrs. Int. Ass'n, LU No. 36, 66C 58(2).

• Decision Date: 07 March 1968
• Docket Number: No. 66C 58(2).,66C 58(2).
• Citation: 280 F. Supp. 719
• Parties: UNITED STATES of America, Plaintiff, v. The SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION NO. 36, AFL-CIO, and the Local No. 1 of the International Brotherhood of Electrical Workers, AFL-CIO, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

280 F. Supp. 719

UNITED STATES of America, Plaintiff, v. The SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION NO. 36, AFL-CIO, and the Local No. 1 of the International Brotherhood of Electrical Workers, AFL-CIO, Defendants.

No. 66C 58(2).

United States District Court E. D. Missouri, E. D.

March 7, 1968.

Richard D. FitzGibbon, Jr., U. S. Atty., by Robert H. Kubie, Asst. U. S. Atty., St. Louis, Mo., Gerald Jones and John Bleveans, Attys., U. S. Dept. of Justice, Southwestern Section, Civil Rights Division, Washington, D. C., for plaintiff.

Charles A. Werner, Schuchat, Cook & Werner, St. Louis, Mo., for defendant Sheet Metal Workers.

James K. Cook, Schuchat, Cook & Werner, St. Louis, Mo., for defendant International Brotherhood of Electrical Workers.

MEMORANDUM

MEREDITH, District Judge.

This case has been submitted for decision on the basis of briefs filed by the parties, exhibits, and testimony adduced at trial held June 15 through 20, 1967.

The United States Government filed suit against defendants on February 4, 1966, alleging that defendants had violated the Civil Rights Act of 1964 (42 U.S.C. § 2000e through § 2000e-15) and seeking injunctive relief to inhibit future violations. Defendant Sheet Metal Workers Union Local No. 36, AFL-CIO (hereinafter referred to as "Local 36") and defendant Local No. 1, International Brotherhood of Electrical Workers, AFL-CIO (hereinafter referred to as "Local 1") are the only two defendants against whom suit continued. Both are labor organizations as defined by 42 U.S.C. § 2000e, and both are within the scope of 42 U.S.C. § 2000e-2(c). The suit was filed by the Attorney General pursuant to 42 U.S.C. § 2000e-6, and this Court has jurisdiction thereunder.

When the original complaint was filed on February 4, 1966, it included two counts and several additional defendants. Count I of the complaint was dismissed by order of this Court, dated July 26, 1966. Thereafter, in response to a motion by the Government, all defendants remaining in Count II, except Local 36 and Local 1, were dismissed without prejudice, and on June 15 through 20, 1967, trial proceeded against Local 36 and Local 1 on Count II of the complaint. At the close of trial, plaintiff and defendants submitted proposed findings of fact and conclusions of law and supporting briefs.

The Civil Rights Act of 1964, 42 U.S.C. § 2000e-6, provides:

"Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States * * *."

The Civil Rights Act of 1964 went into effect on July 2, 1965, and, therefore, any violations of this Act by defendants must have occurred after that date and prior to February 4, 1966, the date on which this suit was filed. The Government alleges that by failing to admit Negroes into Local 1 and Local 36 on a non-discriminatory basis, by failing to admit Negroes into apprenticeship training programs on a non-discriminatory basis, and by failing to operate their respective hiring hall referral systems on a non-discriminatory basis, defendants have discriminated against Negroes in violation of the latter's civil rights.

The Government alleges specifically that nepotism is a policy and practice of both unions, that the unions have failed to inform Negroes of the opportunities to become members of the unions, and that they have failed to organize employers who employ Negroes.

It is the function of this Court to determine, on the basis of the evidence presented at trial, whether during the period July 2, 1965, to February 4, 1966, the defendants have, in fact, engaged in a "pattern or practice" which constitutes a violation of the Civil Rights Act of 1964.

Local 36 is a labor organization representing sheet metal workers in the construction industry in the City of St. Louis, Missouri, and forty-four counties in the eastern half of the State of Missouri, and has contracts with most of the sheet metal contractors in the geographical area which it covers. The parties stipulated that on February 4, 1966, the date on which this lawsuit was filed, Local 36 had approximately 1,250 journeymen members, all of whom were white, and 110 apprentices, one of whom was Negro, and that at the time of trial, Local 36 had approximately 1,275 journeymen members, all of whom were white, and 116 apprentices, three of whom were Negro.

Persons who wish to become journeymen members of Local 36 may do so in one of three ways: by making direct application to the local and taking a journeyman's examination; through participation in the apprenticeship program; and as a result of Local 36's organizational campaigns.

Persons making direct application for membership in Local 36 fill out an Application for Journeyman Sheet Metal Worker Examination and are given written tests, a layout problem, and a test in welding. Those who pass these examinations then fill out an Official Application Form and upon payment of the standard initiation fee, which is one hundred times the current hourly wage rate for journeymen sheet metal workers, are admitted into union membership. There is no vote of the membership on new members and the application blank's spaces for vouchers are automatically filled in by members of the Executive Board.

There was no evidence that a Negro has, at any time, either before or since the passage of the Civil Rights Act of 1964, applied to take a journeyman's examination and thereby achieve membership in Local 36. There was also no evidence indicating that most of the persons achieving journeyman membership in Local 36 during the period from July 2, 1965, to April 15, 1967, were related to journeyman members of Local 36. Plaintiff sent out questionnaires to all one hundred fifteen persons admitted to Local 36 as journeyman members during this period, and of the ninety replies received, eighty (eighty-eight percent) indicated that the new member was not related by blood or marriage to members or former members or apprentices of Local 36.

Local 36 has a policy of organizing unorganized shops in its jurisdictional area, and persons in the shop being organized are not required to take a journeyman's examination. Local 36 charges an initiation fee of from $50 to $150 during an organizational campaign (depending on the location of the shop), but once a shop is organized, new persons coming into Local 36 are required to pay the regular fee of one hundred times the journeyman's hourly wage rate. The rate was approximately $5.00 per hour on January 1, 1966. In addition, since July 1, 1966, shops have been required to post a $2,000 bond to assure that payments are made to welfare, pension, and vacation funds.

The evidence showed that Local 36 attempted to organize Kennedy & Sons Sheet Metal Shop, a Negro shop, in December 1966. This shop was under a Midwest Contractors Association collective bargaining agreement with Local 99 of the Congress of Independent Unions (CIU) for the period June 15, 1965, through March 1, 1967, and the month of December 1966, was the so-called "soft period" when organizational negotiations could take place without being in conflict with the contract bar rules of the National Labor Relations Board. Eugene Zimmerman, then business manager of Local 36, contacted Arthur Kennedy, owner of the shop, personally, and representatives of Local 36 contacted the sheet metal workers employed by Kennedy and left application forms for the men to sign. The negotiations between Local 36 and the Midwest Contractors Association, including Kennedy & Sons, were broken off by the Midwest Contractors Association and none of Kennedy's employees mailed or took completed application forms to Local 36.

Clarence Lee and Vernon Wells are Negro sheet metal workers, both with full-time jobs at McDonnell Aircraft Corporation, who have formed a partnership called Wells and Lee Heating Service. Lee testified that he spoke to Zimmerman in April 1967 about joining Local 36. Zimmerman told Lee that the initiation fee was $500 per man and that if Wells and Lee would come to the office, they could proceed to become members of Local 36. Zimmerman also told Lee that Local 36 would sign a contract with Wells and Lee Heating Service, and that the partnership would be required to post a $1,000 bond to insure payment of vacation moneys. Lee was to contact Zimmerman later, but never did, nor did Lee ever file a written or formal or informal application for membership in Local 36. Wells testified that he called Local 36 and spoke to some unidentified person who said it would cost $2,000 to join the union. Both Wells and Lee subsequently joined Local 99, CIU, and had no further interest in Local 36.

The sheet metal workers apprenticeship program is run by the Joint Apprenticeship Committee (hereinafter referred to as the JAC), which is composed of three sheet metal contractors and three sheet metal journeymen. In 1964, the JAC revised the qualifications and procedures of the program, and sent them to the Department of Labor for approval. On February 11, 1965, the Department of Labor notified the JAC that the program was in compliance with the Code of Federal Regulations, Title 29, Part 30, dealing with discrimination in apprenticeship and training. The revised procedures provide that all applicants must fill out an application, take qualifying tests administered by an independent testing agency, and be interviewed by the JAC. Applicants who receive eighty points out of a possible two hundred points on the tests and interview are placed on the "available for training" list according to point score, and the person on the list with the top point score is...