United States v. Ironworkers Local 86

• Citation: 443 F.2d 544
• Decision Date: 17 May 1971
• Docket Number: No. 26048.,26048.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. IRONWORKERS LOCAL 86 et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

443 F.2d 544 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. IRONWORKERS LOCAL 86 et al., Defendants-Appellants.

No. 26048.

United States Court of Appeals, Ninth Circuit.

May 17, 1971.

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Hugh Hafer (argued), John E. Rinehart, Jr., of Bassett, Donaldson & Hafer, Seattle, Wash., Harold Stern, Gen. Counsel, Ironworkers International Union, New York City, Donald Fisher, Gen. Counsel, Sheet Metal Workers International Union, Toledo, Ohio, Martin F. O'Donoghue, Gen. Counsel, Plumbers & Pipefitters International Union, Washington, D. C., for defendants-appellants.

Frank Petramalo, Jr. (argued), David L. Rose, Robert T. Moore, Attys., Dept. of Justice, Washington, D. C., Jerris Leonard, Asst. Atty. Gen., Stan Pitkin, U. S. Atty., Seattle, Wash., Herman Siqueland, Duane Vance, Don Davidson, Alec Brindle, Seattle, Wash., for plaintiff-appellee.

Before HAMLIN and MERRILL, Circuit Judges, and HILL, District Judge.^*

HAMLIN, Circuit Judge:

On October 31, 1969, the Attorney General of the United States¹ brought an action in the United States District Court for the Western District of Washington against five building construction unions² located in Seattle, Washington, and three joint apprenticeship and training committees associated with them.³ The complaint alleged that the named unions and joint apprenticeship and training committees had denied employment opportunities to blacks on account of their race and that certain policies, practices and conduct, described therein, constituted a "pattern or practice" of resistance to full employment of blacks in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. The district court, William J. Lindberg, Chief Judge, found that all the named unions and joint apprenticeship and training committees had pursued a pattern or practice of conduct which denied blacks, on account of their race, equal employment opportunities in the construction industry; two judgments and decrees followed.⁴ All but one of the defendants⁵ have joined in the instant appeal.⁶ We affirm.

Many of the basic facts were largely undisputed and were stipulated by the parties. Appellant building trades unions are labor organizations which represent a large number of workmen employed in the construction industry in and about Seattle, Washington.⁷ Through the union hiring halls, appellant unions effectively control a large percentage of the employment opportunities in the construction industry in that area. Under the bargaining agreements entered into between the contractor-employers and the unions, the unions must be given first opportunity to fill positions. Contractors may not employ non-union workers unless the positions are not filled by the unions within a period of time stipulated under the bargaining agreement.

The joint apprenticeship and training committees who join in this appeal are entities legally separate and distinct from the specific unions with which they are associated. The committees consist of members representing both the unions and the employers,⁸ and are formed to oversee and run the apprenticeship programs whose purpose is to train apprentices to become journeymen in the respective trades. Once an applicant is accepted into the program,⁹ he becomes indentured to the joint apprenticeship and training committee for a period of years¹⁰ and participates in a program which consists of both on-the-job training and classroom instruction. It is through this program that participants gain admission to the union as a journeyman, thereby obviating the necessity of taking the avenue of direct admission which demands that an applicant meet certain requirements such as possessing a specified number of years of experience, being within a given age range, having letters of recommendation, and passing a journeyman's examination.

The court found appellant unions and joint apprenticeship and training committees to have engaged in a pattern or practice of discrimination which denied blacks employment opportunities in the construction industry. It based its conclusions on specific findings of discrimination which included (1) the employment of tests and admission criteria which had little or no relation to on-the-job skills and which had a differential impact upon blacks, and which operated to exclude them from entrance into the unions or referrals to available jobs; (2) the active recruitment of whites while at the same time giving little or no publicity to information concerning procedures for gaining union membership, work referral opportunities, and the operation of the apprenticeship training programs in the black community; (3) the granting of preferential treatment to friends and relatives of existing members of the unions; and (4) the differential application of admission requirements, often by-passing such requirements in cases of white applicants. In addition, several instances were shown where black workers who sought referrals were turned away without reason or after being given a spurious reason in support of its action; and in some cases, unions refused to place blacks on the referral lists, thus assuring their inability to secure work.

The relief granted by the court took the form of two judgments and decrees: the first related to the unions and the second related to the joint apprenticeship and training committees. In the first, the court enjoined the unions from engaging in future discrimination with respect to referrals for employment and the acquisition or retention of union membership. It ordered that the unions keep detailed records of their operations and actively disseminate information in the black community describing the operation of the referral systems, membership requirements and available job opportunities. Specific relief was granted by the court to certain individuals or groups of persons, ordering the unions to offer them immediate construction referrals in response to the next contractor requests for workers and to open their membership application lists to these persons. The court retained jurisdiction for such further relief as it deems necessary or appropriate to further effectuate equal employment opportunities.

Judgment and Decree No. 2 pertained to the joint apprenticeship and training committees. The committees were enjoined from all future discrimination against applicants for apprenticeship on account of their race. It further ordered the committees to disseminate information concerning the requirements and procedures for admission to the apprenticeship programs so as to apprise blacks within the geographical area of available opportunities. The respective committees were ordered to consider all applicants who met the standards set out by the court in the decree. In addition to the above, an affirmative action program was included in the decree in the hope of eradicating the vestiges of past discrimination. Among the provisions under this program were the creation of special apprenticeship programs designed to meet the special needs of average blacks with no previous experience or special skills in the trade, or black applicants who have some previous experience or special skills in the trade but do not meet journeymen standards. The court also retained jurisdiction over the committees in order to grant such further relief as it deems necessary.

I. FINDINGS OF FACT

We are confronted initially with the appellants' contention that the "clearly erroneous" rule¹¹ should not govern our review of the findings of fact made by the district court. They reason that the rationale underlying the rule is that an appellate court should defer to the judgment of the trial court because the trial judge had access to demeanor evidence and could readily assess the credibility of the witnesses. Hence, where, as they allege, "large reliance" is placed upon written instruments and depositions, they claim the rule does not apply as demeanor evidence played a small part in the trial judge's decision.

Appellants' characterization of the proceeding below as one in which the trial judge placed "large reliance" on documentary evidence and depositions ignores the fact that over fifty-five witnesses testified, many of whom were deponents prior to trial. Even if "large reliance" was placed on written evidence, the clearly erroneous rule would still apply. We examined this problem in Lundgren v. Freeman, 307 F.2d 104 (9th Cir. 1962), and found the better rule to be that the clearly erroneous rule does apply, even where the factual issues are decided on written evidence alone.¹² Appellants would have us review the evidence de novo and freely substitute our judgment for that of the trial judge. We decline to do so. The well-established rule is that we "may not substitute our judgment if conflicting inferences may be drawn from established facts by reasonable men, and the inferences drawn by the trial court are those which could have been drawn by reasonable men." Lundgren, supra, 307 F.2d at 113. See also Jacobson v. Colorado Fuel and Iron Corp., 409 F.2d 1263, 1267 (9th Cir. 1969); Friend v. H. A. Friend & Co., 416 F.2d 526, 531 (9th Cir. 1969); United States v. Hanna Nickel Smelting Co., 400 F.2d 944, 947 (9th Cir. 1968).

Appellants further contend that the district court's findings were based on evidence which it had previously excluded. Prior to trial, the Attorney General examined the application forms found in the files of the joint apprenticeship and training committees. At trial, appellants objected to the introduction of charts which were made from information found in the application forms on the ground that they did not qualify for admission under the business records exception to the hearsay rule.¹³ The court, sustaining, in part, appellants' objection, held this evidence was inadmissible to prove the truth of the matters contained therein, but was admissible as evidence of the type of information sought by the...