Dobbins v. Local 212, International Bro. of Elec. Wkrs., Civ. A. No. 6421

Citation292 F. Supp. 413
Decision Date10 October 1968
Docket Number6473.,Civ. A. No. 6421
CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio




Stephen J. Pollak, Asst. Atty. Gen., John J. Kirby, Jr., Michael J. Lightfoot, Gregory E. Fischbach, Attys., Dept. of Justice, E. Winther McCroom, First Asst. U. S. Atty., for the United States.

Norris Muldrow, Cincinnati, Ohio, Robert L. Carter, New York City, Richard F. Bellman, New York City, for plaintiff Dobbins.

Robert I. Doggett, and Smith, Latimer, Doggett & Swing, Cincinnati, Ohio, for defendant Local 212.

James W. Hengelbrok, and Gorman, Davis & Hengelbrok, Cincinnati, Ohio, for defendant J. A. T. C.


HOGAN, District Judge.


Section I.

Somewhere between these two extremes lies the answer to the problem raised in this case. The Local Union 212 (hereinafter referred to as "U") has approximately 800 journeymen members. All are White (hereinafter abbreviated as "W"). U not only does not have, but it never has had a Negro (hereinafter abbreviated as "N") member. That is one extreme. As the Fifth Circuit said in State of Alabama v. United States, 304 F.2d 583 (1962, affirmed 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112):

"In the problem of racial discrimination, statistics often tell much, and courts listen."

Compare the statistical recitations in Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). Going to the other extreme for a statistic—since statistics may be bilateral —in March of 1968, a union electrical contractor, Incore Electric, and the successful subcontractor on two of the largest electrical construction projects in the Cincinnati area (being the building that is going on just west of this Federal Building and covering almost two blocks) in good faith addressed a letter to a representative number (practically all) of N contractors in the electrical business in this area. The contractor said that he had a present need for "several electricians of the minority group." He further called attention to the fact that journeyman electricians, in his employ, were earning $5.55 per hour. Although this request was, on this record, known to individuals in the business and with the knowledge of the N electricians in this area, this good faith request was answered by only one person—who had no trouble with either the contractor or the U in obtaining and keeping employment.

In May, 1967, the plaintiff Dobbins (hereinafter referred to as "D") commenced an action against the U under Title 7 (42 U.S.C. § 2000e et seq.). The D action was also bottomed on 42 U.S.C. § 1981 (part of the statute of 1866).1 The D action purported to be a class action. The fact that, on this record, D is the only N to have satisfied the procedural requirements of Title 7 before filing an individual action is neither here nor there. The Fifth Circuit has recently held that, assuming other de facto members of the class, a plaintiff who has satisfied the procedural requirements of Title 7 may sue on behalf of others similarly situated who have not gone through the procedural requirements. Oatis v. Crown Zellerbach Corp., 5 Cir., 398 F.2d 496 (July, 1968). However, Rule 23 F.R.Civ.P. does require a showing that there is more than one person in the class. On this record there is no one in D's class, as we shall see. D evidently agreed, since he took no step as required by the Rule. Furthermore, the prerequisites under Section (b) of Rule 23 are not here present. It is determined, therefore, that the D action is not a class action and not maintainable as such, but is an action on behalf of the individual plaintiff only.

On July 24, 1967, only a matter of weeks after the D action was filed, the United States, by Ramsey Clark, Attorney General, filed a Title 7 action against the U. Basically, the D action asserted discrimination with respect to membership in the U. Basically, the government action was directed toward claimed discrimination both in respect of membership and employment opportunities. On September 6, 1967, on motion of the United States, the two pending actions were consolidated. At the same time, as required by Title 7, the actions, as consolidated, were advanced. The trial was approximately a year after commencement, which is approximately a year and a half in advance of when the cases would have been reached on the docket as a matter of course. The point is that at a very early date in the history of these cases (i. e., a matter of a few months after filing and before any substantial discovery had been commenced) the Attorney General of the United States, in this Court, was actively pressing a claim which of necessity included the D claim, for all practical discovery, trial and evidentiary purposes, and in the light of that fact, there was no need in this District for a "private Attorney General" thereafter. Compare Newman v. Piggie Park, 390 U.S. 400, at 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (March, 1968).

The Cincinnati Joint Apprenticeship Training Committee in the electrical field (hereinafter simply "JATC") is a voluntary, unincorporated association, composed of six members. Each serves for a term of years. Three are designated by the U. Three are designated by the Cincinnati Chapter of the National Electrical Contractors Association (hereinafter "NECA"). It formulates and administers the apprenticeship training program in and for the jurisdiction of the U. In that connection, it incurs and pays expenses, which subject will be dealt with again herein. The funds of JATC are provided 50% by U and 50% by NECA. It is not controlled by either U or NECA—while the U members may want one or the other thing and NECA members may want something different, the conclusions of the JATC in such matters are arrived at by good faith bargaining.

On April 9, 1968, after these cases had been assigned a trial date of July 9, 1968, and approximately a month after JATC had notice that such an effort would be made, the JATC was added as a defendant in Civil 6473; and on April 11, 1968, the United States filed an amended complaint against both defendants, adding the claim, as against JATC, of discrimination by reason of race or color in connection with JATC standards and admission to the apprenticeship program. The JATC first filed motions which were deferred for disposition until trial and which are dealt with hereinafter.2 On June 10, 1968, the JATC answered.

It has been and still is the claim of the JATC that it had no adequate time prior to trial to prepare its defense and that it, therefore, was deprived of certain Constitutional rights. In an effort to set that claim at rest, the trial of this case was adjourned from July 24th to August 6, 1968; the government had rested its case on July 24 against both defendants, and the JATC was afforded the interim adjournment for preparatory purposes before putting on its case, so that, prior to the time the JATC was required to defend itself evidentiary-wise, there was a substantial period of time in which it knew exactly what it had to prepare itself for—and, of course, its preparation could only amount to self-discovery, which never presents anyone much problem. The trial extended over a period of approximately fifteen days, involves a record exceeding 3100 pages of transcript, and several hundred pounds of exhibits.

Section II.

The Facts With Respect to The U

1. The U is a labor organization, being an unincorporated association of members engaged in the electrical construction industry in Cincinnati and thirteen surrounding counties in Ohio, Kentucky and Indiana. The U's offices are in Cincinnati, Ohio.

2. U's membership policies are governed by its Collective Bargaining Agreement, by the constitution of the International, and by its own bylaws. The bylaws require the examining board of U to meet "at least once monthly for the examination of applicants when there are applicants to be examined." Four years' experience at the trade is stated in the Collective Bargaining Agreement as a condition for eligibility for examination and it is also therein provided that a reasonable interval of time between examinations is three months. The International constitution requires "quarterly" examination of applicants by a local when there are applicants to be examined.

3. While the U has at all times had applicants for membership, no membership examination has been given since 1963, excepting only in July of 1967, at which time an examination was held, which will be dealt with further hereinafter. Again, and this is the last time it will be mentioned—absolute accuracy is being sacrificed in the interest of substance. There are certain special instances in which what might be called a "special examination" is given; a civil service municipal employee may be examined at an odd time on his request and the request of the City. That type of thing has nothing to do with this case and our only concern is with the general or non-special.

4. The Collective Bargaining Agreement states that all employees of union contractors "shall be required to become and remain members of the U as a condition of employment from and after the 31st day following the date of their employment." U does not, and, at least since 1960, has not enforced this provision of the Collective Bargaining Agreement. During such time there has always been a substantial number of non-member employees "by referral," who have been employed for substantially more than 31 days. Even in instances in which such an employee has desired to become a member of the U and made his desires known, he has not been admitted or...

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