E.E.O.C. v. Local 14, Intern. Union of Operating Engineers, s. 637

• Citation: 553 F.2d 251
• Decision Date: 21 March 1977
• Docket Number: D,Nos. 637,698-701,s. 637
• Parties: 14 Fair Empl.Prac.Cas. 870, 13 Empl. Prac. Dec. P 11,591 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. LOCAL 14, INTERNATIONAL UNION OF OPERATING ENGINEERS, and Local 15, International Union of Operating Engineers, et al., Defendants-Appellants. ockets 76-6150, 76-6157 and 76-6164 to 76-6166.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 251

553 F.2d 251

14 Fair Empl.Prac.Cas. 870,

13 Empl. Prac. Dec. P 11,591

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. LOCAL 14, INTERNATIONAL UNION OF OPERATING ENGINEERS, and Local 15, International Union of Operating Engineers, et al., Defendants-Appellants.

Nos. 637, 698-701, Dockets 76-6150, 76-6157 and 76-6164 to 76-6166.

United States Court of Appeals Second Circuit.

Argued Dec. 15, 1976.

Decided March 21, 1977.

Robert A. Kennedy, Garden City, N. Y. (Doran, Colleran, O'Hara, Pollio & Dunne, P. C., Richard L. O'Hara, Garden City, N. Y., of counsel), for defendant-appellant Local 14, International Union of Operating Engineers.

William D. Appler, Washington, D. C. (Edward C. O'Connell, Bonner, Thompson, Kaplan & O'Connell, Frank Petramalo, Jr., Bredhoff, Cushman, Gottesman & Cohen, Washington, D. C., Robert D. Brady, Corcoran & Brady, New York City, of counsel), for defendant-appellant Local 15, International Union of Operating Engineers.

Harold R. Bassen, New York City, for defendant-appellant Allied Building Metal Industries, Inc.

James J. A. Gallagher, New York City (Shea, Gould, Climenko & Casey, New York City, James E. Frankel, Albany, N. Y., of counsel), for defendant-appellant General Contractors Association of New York, Inc.

Mary-Helen Mautner, Washington, D. C. (Abner W. Sibal, Gen. Counsel, EEOC, Joseph T. Eddins, Associate Gen. Counsel, EEOC, Beatrice Rosenberg, Asst. Gen. Counsel, EEOC, Washington, D. C., of counsel), for plaintiff-appellee, Equal Employment Opportunity Commission.

Before TIMBERS, GURFEIN and VAN GRAAFEILAND, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

This action, brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (Act), ¹ charges Locals 14 and 15 of the International Union of Operating Engineers with discriminating against non-whites and Spanish surnamed workers. Ten contractors associations which negotiate collective bargaining agreements with the two locals were joined as defendants under Fed.R.Civ.P. 19(a) for purposes of relief only.

The trial was limited to the issue of liability, and only the union defendants participated. On May 6, 1976, Judge Tenney issued an opinion in which he concluded that both locals had violated the Civil Rights Act, basically because of their admission and referral practices. Although all parties were directed to submit proposed orders, after hearing argument thereon, the Judge issued an order substantially as proposed by the plaintiff. The two locals and two contractors associations, the General Contractors Association of New York, Inc. (GCA) and the Allied Building Metal Industries (ABMI), have appealed. The associations' appeal is directed only to the grant of relief. ²

Locals 14 and 15 are chartered locals of the International Union of Operating Engineers, whose members operate machinery in building and heavy construction work. Although their trade jurisdictions are similar and some of the equipment utilized by Local 15 is comparable to equipment used by Local 14, generally the latter's is larger, or is operated in different areas on the construction site. ³ Judge Tenney found that the geographic jurisdiction of both locals was New York City, they being the only operating engineer locals in the country which are chartered for the same geographic jurisdiction. In other sections of the country, Local 15 members would be considered Junior and Assistant Engineers within a subdivision of Local 14.

Historically, the membership of both locals has been largely white. Judge Tenney found that Local 14's membership in 1974 was only 2.8% minority (44 out of 1555 members). Local 15's percentage was slightly higher, 6.5% (415 out of 6,362 members). He also found that the available labor pool for operating engineers in New York City consisted primarily of males living in the City who have a high school education or less; that the black percentage of this pool was 20.76% and the percentage for Spanish surnamed males was 15.63%. The total minority percentage for the group was therefore 36.39%. Following the "effect to cause" procedure described in Kirkland v. New York State Department of Correctional Services, 520 F.2d 420, 425 (2d Cir. 1975), cert. denied, 429 U.S. 823, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976), Judge Tenney found that this disparity in percentages between the membership and the available labor pool established a prima facie case against both unions.

Local 15

In determining the proper geographic reference area, the District Judge indicated that he would use the area encompassed by "the Union's jurisdiction, and from which the industry draws employees." However, Local 15 contends that, insofar as it is concerned, he could not consistently do both because a significant percentage of its members reside outside the City. The EEOC says this makes no difference, because the appropriate geographic area should be that in which the union members work, not where they live. We disagree. Where a union draws its membership almost entirely from within its geographic jurisdiction, it may be convenient to accept this area as the source of its labor pool. In cases where this situation has existed, the question presented here has generally not even been raised. Cf. Rios v. Steamfitters Local 638, 501 F.2d 622 (2d Cir. 1974) (union's jurisdiction included five boroughs of New York City, plus Nassau and Suffolk Counties). However, where a significant number of union members come from outside the union's geographic jurisdiction, the court must widen its sights; the appropriate reference area then should be that region from which the union draws its members. ⁴ See United States v. Hazelwood School District, 534 F.2d 805 (8th Cir. 1976), cert. granted, 429 U.S. 1037, 97 S.Ct. 730, 50 L.Ed.2d 747 (1977); cf. EEOC v. Steamfitters Local 638, 542 F.2d 579, 591 (2d Cir. 1976), cert. denied, --- U.S. ----, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977); United States v. Elevator Constructors Local 5, 538 F.2d 1012, 1016 (3d Cir. 1976).

Local 15 calculates that, if the proper reference area is used, the minority percentage in the labor pool would be 16.2%. Assuming that this figure is correct, there is still sufficient disparity between it and the local's 1974 minority membership percentage of 6.5% to create an inference of discrimination. See Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 1017, 1020 n.4 (1st Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975). However, in Local 15's attack on the District Court's finding of a prima facie case, the second half of its one-two punch is aimed at that court's use of the 6.5% figure.

Local 15 argues that this figure is misleading. The union points out that, of its approximately 6300 members, 5000 had been admitted prior to July 2, 1965, the effective date of the Act. Since that date, approximately 20% of its new members have been minority workers. Moreover, this increase in minority membership does not appear to have been inspired by the instant suit. With only two exceptions, the admission rate for each year between 1965 and the date that this action was filed, exceeds 16.2%. As a result, the number of Local 15's minority members has steadily increased since the effective date of the Act.

It is established law that "practices, procedures or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices", Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971), and that practices which "perpetuate" past discrimination violate the Act. See Acha v. Beame, 531 F.2d 648 (2d Cir. 1976); United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971). However, if the figures advanced by Local 15 are correct, the union's present practices neither perpetuate nor freeze the effects of past discrimination. Looking to the post-Act statistics, see United States v. Jacksonville Terminal Co., 451 F.2d 418, 444 (5th Cir. 1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972), Local 15's consistent practice since 1965 has been to admit a higher percentage of minority workers than the percentage of minority workers in the labor force. Keeping in mind that it remains a primary goal of Title VII "to induce voluntary compliance by employers and unions", Patterson v. American Tobacco Co., 535 F.2d 257, 268 (4th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976), we conclude that the union's figures show a substantial compliance with the Act, aimed at eliminating rather than perpetuating the results of pre-Act discrimination. See Taylor v. Safeway Stores, Inc., 524 F.2d 263, 271-72 (10th Cir. 1975); cf. Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970); Patterson v. American Tobacco Co., supra, 535 F.2d at 274-75. ⁵

Subsequent to the oral argument of this appeal, the EEOC sent a letter to the court in which it questioned the existence of any support in the record for Local 15's annual minority admission figures. This belated attack on Local 15's statistical argument runs counter to the position taken in the EEOC's brief where it admitted that "the figures do show an increased percentage of minority admissions after the enactment of Title VII. . . ." The EEOC's argument in its brief was basically that the union's allegations of increased minority admissions, although true, were irrelevant. We find that they are not irrelevant. In addition to its minority admissions, Local 15 has also had minority officers and has participated in certain affirmative action programs. It does not further the purposes of Title VII to find liability in a union which has seemingly complied with the Act's provisions since its enactment in 1965. We must carefully balance the need for effective enforcement of the Act against overzealous enforcement which can only lead...