416 F.2d 123 (8th Cir. 1969), 19316, United States v. Sheet Metal Workers, Intern. Ass'n, Local Union36, AFL-CIO

Docket Nº:19316.
Citation:416 F.2d 123
Party Name:UNITED STATES of America, Appellant, v. the SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION NO. 36, AFL-CIO; and the Local No. 1 of the Internal Brotherhood of Electrical Workers, A.F.L.C.I.O., Appellees.
Case Date:September 16, 1969
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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416 F.2d 123 (8th Cir. 1969)

UNITED STATES of America, Appellant,

v.

the SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION NO. 36, AFL-CIO; and the Local No. 1 of the Internal Brotherhood of Electrical Workers, A.F.L.C.I.O., Appellees.

No. 19316.

United States Court of Appeals, Eighth Circuit.

Sept. 16, 1969

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Stephen J. Pollak, Asst. Atty. Gen., Dept. of Justice, Washington, D.C., for appellant; Nathan Lewin and Gerald W. Jones and Carol R. Aronoff, Attys., Dept. of Justice, Washington, D.C., on the brief.

Charles A. Werner, St. Louis, Mo., for appellee Sheet Metal Workers Int'l Assn. Local 36; Stanley R. Schuchat, St. Louis, Mo., on the brief.

James K. Cook, St. Louis, Mo., for appellee Local No. 1 of the International Brotherhood of Electrical Workers; Stanley R. Schuchat, St. Louis, Mo., on the brief.

Before BLACKMUN, MEHAFFY and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

The Attorney General brought an action on February 4, 1966, against Local 1 and Local 36 1 charging them with engaging

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in a 'pattern or practice' of discrimination against Negroes on account of their race in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e to 2000e-15. 2

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The trial court found: (1) that both Locals excluded Negroes prior to 1964; 3 (2) that the record was devoid of specific instances of discrimination by either Local after July 2, 1965, the effective date of the Act; (3) that both Locals made a post-Act effort to recruit Negroes and to advise them of their rights to membership and related benefits; 4 and (4) that no complaints of discrimination by either Local had been made to any governmental agency. 5 The court concluded:

'The Civil Rights Act of 1964 was not intended to penalize unions or others for their sins prior to the effective date of the Act. It is prospective only. Neither was it passed to destroy seniority rights in unions or in business. The Act specifically forbids a

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union or a business from giving preferential treatment to Negroes to correct an existing imbalance of whites. In order to be a violation of this Act, there must be an intentional pattern and practice of discrimination and not an isolated instance of discrimination. There is no pattern or practice of discrimination in this case since the effective date of the Act.'

United States v. Sheet Metal Wkrs. Int. Ass'n, L.U. No. 36,280 F.Supp. 719, 730 (E.D.Mo.1968).

The government asks this Court to reverse the trial court. It argues that it is not necessary to prove that a number of Negroes sought and were denied union membership or related benefits to establish a pattern or practice of discrimination. It asserts that the Act casts upon those subject to its provisions not merely the duty to follow racially neutral employment policies in the future but an obligation to correct or revise practices which would perpetuate racial discrimination. It specifically requests that we find: (1) that both locals are continuing to discriminate against Negroes in the operation of their employment referral systems, (2) that both Locals are continuing to discriminate against Negroes in their admission policies, and (3) that both Locals had failed to publicize their abandonment of racially discriminatory policies and that they have an affirmative obligation to do so.

It asks that the matter be remanded to the District Court for the entry of an appropriate remedial order.

We first consider the general question of whether it was necessary for the government to prove that the Locals have refused membership or work referral to Negroes since the effective date of the Act. We answer this question in the negative. Our reasons for doing so are outlined below and developed more fully in subsequent sections of the opinion.

(1) The Locals continued to exclude Negroes from membership, apprenticeship training, and work referral after the Act became effective in violation of § 703(c)(1) of the Act. 6

(a) The trial court correctly found that both Locals excluded Negroes prior to 1964. There is no evidence indicating that its exclusionary policies were changed in that year or that they were changed by July 2, 1965. Indeed, the inference to the contrary is so strong as to require that it be made. 7

(b) Local 1 did not admit its first Negro member until March, 1966. (As of the date of oral argument, it had accepted sixteen Negro members). It did not accept its first Negro apprentice until February, 1966. There is no record of a Negro being referred for employment prior to March, 1966. A qualified young Negro who sought membership in the union and employment in the industry received

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evasive responses from the Local as late as December, 1965. 8

(c) Local 36 had no Negro members as of the date of trial-- June, 1967. It had 1,275 white members. It accepted its second and third Negro apprentices in 1967. There is no record of any Negro having used its hiring hall prior to the date of trial.

(d) Both Locals pursued a pre- and post-Act policy of organizing white contractors with white employees. Neither attempted to organize Negro contractors with Negro employees until November, 1966. 9 The 1966 organizational efforts were limited to meeting with some of the members of the Midwest Contractors Association who employed Negroes and advised them that the Locals would be willing to sign contracts with them and accept their employees as members. See, Brown v. Post, 279 F.Supp. 60 (W.D.La.1968).

(e) Both Locals discouraged their members from working on construction jobs on which Negro craftsmen or Negro contractors were employed. As late as December, 1965, the Building and Construction Trades Council of St. Louis, AFL-CIO, issued a policy statement that its affiliates would not work on construction projects in St. Louis unless the

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project was manned entirely by AFL-CIO members. Pursuant to this policy, Local 1 and Local 36, among others, boycotted the 'Arch' project in St. Louis when Negro craftsmen belonging to an independent union were employed. The minutes of Local 36 reported:

'Bus. Manager E. Zimmerman then made his report. 'He gave a detailed account of the C.I.U.'s infiltration into the St. Louis Bldg. Trades area. 'The Rec. Secy read a referendum received from the St. Louis Bldg. Trades Council. Requesting that all organizations go on record to accept the pledge of not working on a construction job with anyone who does not belong to the St. Louis Bldg. Trades Council, AFL-CIO. The motion to adopt this Resolution * * * was passed unanimously.'

Work resumed only after an injunction ordering an end to the boycott was issued on February 7, 1966. See, United States v. Building & Const. Tr. Coun. of St. Louis, Mo., 271 F.Supp. 447 (E.D.Mo.1966); International Brotherhood of Electrical Workers, Local 1 AFL-CIO, et al., 164 N.L.R.B. No. 40, 65 L.R.R.M. 1113 (1967). This incident appears to have been a factor in precipitating this action.

(f) The Locals instituted a public relations program in January of 1966 to inform the community that their apprenticeship training programs were of a nondiscriminatory nature. It took no similar step with reference to the right to membership and the right to use the Locals' employment referral systems.

(2) The Local's employment referral systems are operated in a discriminatory manner in violation of § 703(c)(2) of the Act. 10

(a) The collective bargaining agreements of the Locals require persons working under them to become union members in less than a month, 11 a requirement which Negroes could not fulfill during the period that the Locals' policy of exclusion was in effect. Furthermore, since most of the construction work was performed by the members of the Locals, 12 qualified Negroes could not work as members and had difficulty obtaining jobs as nonmembers.

(b) Local 1 continued, through the date of oral argument before this Court, to refer persons for employment on the basis of pre-Act experience in the industry and pre-Act experience under its collective bargaining agreement-- experience which Negroes were unable to secure.

(c) Local 36 revised its employment referral system in 1966 to provide that persons would be referred for employment on the basis of pre-Act experience

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in the industry and pre-Act experience under the collective bargaining agreement-- experience which Negro employees were unable to obtain.

With this brief summary, we turn to a detailed discussion of the government's contention that the Locals' employment referral systems necessarily discriminate against Negroes.

Prior to the passage of the Act, both Locals negotiated collective bargaining agreements which established systems for referring persons for employment. Both systems were designed to provide maximum employment opportunities for members consistent with the provisions of the Taft-Hartley Act prohibiting the closed shop.

Local 1 negotiated an agreement establishing an exclusive hiring hall in November of 1958. The agreement is still in effect. It accords priority for work referral on the basis of four priority groups. To be eligible for Groups I or II, an applicant must be a resident of the area, have five or more years experience in the electrical construction industry, pass a written journeyman's examination administered by an IBEW Local-- an examination Negroes were not permitted to take until 1966-- and have been employed at least one of the last four years (Group I) or last three years (Group II) under a collective bargaining agreement between the union and NECA. 13 To be eligible for Group III, an applicant must have five or more years of experience in the electrical...

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