EQUAL EMPLOYMENT, ETC. v. SHEET METAL WKRS. INTERN.

• Decision Date: 24 November 1978
• Docket Number: Civ. A. No. M-74-3.
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. SHEET METAL WORKERS, INTERNATIONAL ASSOCIATION, LOCAL NO. 122, Defendant.
• Court: U.S. District Court — District of Maryland

463 F. Supp. 388

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. SHEET METAL WORKERS, INTERNATIONAL ASSOCIATION, LOCAL NO. 122, Defendant.

Civ. A. No. M-74-3.

United States District Court, D. Maryland.

November 24, 1978.

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Hal Ponder, Edward J. Dempsey, and Peter M. Connolly, Washington, D.C., for plaintiff EEOC.

Pamela M. Isackes, New York City, and Allen A. Davis, Jr., Richard L. North, Mary Ellen Rinehardt, Lawrence B. Coshnear, and Diana Greene, Baltimore, Md., Robert J. Lenrow, Washington, D.C., for private plaintiffs.¹

John J. Hirsch, Wilson K. Barnes, and Paul E. Gaeng, Baltimore, Md., for defendant Local 122.

Alan I. Baron, and Jeffrey E. Rockman, Baltimore, Md., for JATC.²

OPINION

JAMES R. MILLER, Jr., District Judge.

Introduction

This memorandum constitutes the court's findings of fact and conclusions of law after trial of this action challenging the practices of defendant Local 122, Sheet Metal Workers International Association (Local 122), which practices first the United States Attorney General³ and then the Equal Employment Opportunity Commission (EEOC) have alleged a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (hereinafter sometimes referred to as "Title VII").

In the Amended Complaint (Paper 42) and the Pretrial Order (Paper 250; Paper 597),⁴ the plaintiff alleges that Local 122 has engaged in a pattern and practice of discrimination against black workers in violation of Title VII.

The plaintiff's burden in a pattern and practice case has been explained in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), where the Court said:

"As the plaintiff, the Government bore the initial burden of making out a prima facie case of discrimination . . . And, because it alleged a systemwide pattern or practice of resistance to the full enjoyment of Title VII rights, the Government ultimately had to prove more than the mere occurrence of isolated or "accidental" or sporadic discriminatory acts. It had to establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure—the regular rather than the unusual practice."

Id. at 336, 97 S.Ct. at 1855. (citations and footnote omitted).

The Court elaborated, writing:

"The `pattern or practice' language in § 707(a) of Title VII . . . was not intended as a term of art, and the words reflect only their usual meaning. Senator Humphrey explained:

"A pattern or practice would be present only where the denial of rights consists of something more than an isolated, sporadic incident, but is repeated, routine, or of a generalized nature. There would be a pattern or practice if, for example, a number of companies or persons in the same industry or line of business discriminated, if a chain of motels or restaurants practiced racial discrimination throughout all or a significant part of its system, or if a company repeatedly and regularly engaged in acts prohibited by the statute.

"The point is that single, insignificant, isolated acts of discrimination by a single business would not justify a finding of a pattern or practice . . ..' 110 Cong. Rec. 14270 (1964)."

Id. at 336, n. 16, 97 S.Ct. at 1855.

In this case the Government has asserted Local 122's liability on the theory that Local 122 treats blacks differently than it treats whites. Under this theory, the ultimate factual question is "whether there was a pattern and practice of such disparate treatment and, if so, whether the differences were `racially premised.'" Id. at 335, 97 S.Ct. at 1854. "Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment." Id., n. 15.

Also in this case the Government has asserted Local 122's liability on the disparate impact theory that Local 122 uses "employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Id. at 336, n. 15, 97 S.Ct. at 1854. Proof of discriminatory motive is not required under the disparate impact theory. Id. In Dothard v. Rawlinson, 333 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), the Court described the respective burdens of the plaintiff and defendant in a Title VII disparate impact case:

"Those cases make clear that to establish a prima facie case of discrimination, a plaintiff need only show that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern. Once it is thus shown that the employment standards are discriminatory in effect, the employer must meet `the burden of showing that any given requirement has . . . a manifest relationship to the employment in question.' Griggs v. Duke Power Co., supra, 401 U.S. at 432, 91 S.Ct. at 854. If the employer proves that the challenged requirements are job related, the plaintiff may then show that other selection devices without a similar discriminatory effect would also "serve the employer's legitimate interest in "efficient and trustworthy workmanship.'"

Id. at 329, 97 S.Ct. at 2726. (citations omitted). See, e. g., Roman v. E.S.B., 550 F.2d 1343, 1350 (4th Cir. 1976).

Governed by these principles, this court will now examine the facts in this case.

FINDINGS OF FACT AND LEGAL STANDARDS

I LOCAL 122—GENERAL

Local 122 is a labor organization, as that term is defined in Section 701(d) of Title VII, as amended, 42 U.S.C. § 2000e(d). It represents workers in the sheet metal industry (Stipulation⁵ 187 hereinafter "St."). The geographical jurisdiction of Local 122 includes the Maryland counties of Anne Arundel, Baltimore, Calvert, Caroline, Carroll, Cecil, Dorchester, Harford, Howard, Kent, Queen Anne's, Somerset, Talbot, Wicomico, and Worcester as well as Baltimore City (St. 189). Local 122, through its Labor Committee, represents its members in collective bargaining negotiations with the Sheet Metal and Roofing Contractors Association of Baltimore, Maryland and with individual sheet metal contractors who are not members of that Association (St. 192).

Local 122 is required to file annual EEO-3 reports with the Equal Employment Opportunity Commission. The EEO-3 reports submitted by Local 122 in 1968 and 1969 (Plaintiffs' Exhibits 85 and 86 hereinafter "PX") reflect that, in response to the EEOC's inquiry whether Local 122 had modified its collective bargaining agreement after the effective date of Title VII (July 2, 1965) in order that it would contain a specific clause prohibiting discrimination, Local 122 responded that it had not done so.

Members of Local 122 receive the following fringe benefits: health and welfare benefits, pension benefits, and a skill improvement program (St. 194).

At the time suit was brought the wage scale for a union sheet metal journeyman was substantially higher than the wage scale paid a non-union sheet metal journeyman (Vol. 15 Transcript, P. 48 hereinafter Tr.; St. 193).

At the end of the trial, the plaintiff EEOC dismissed with prejudice its allegations regarding the size of Local 122 and the selection devices used by Local 122 (15 Tr. 59-60). The allegations dismissed were:

"1. The claim that Local 122 has perpetuated past discrimination by artificially limiting the size of the local union. (No. 28, p. 7, Plaintiffs' Revised Pre-Trial Order).

"2. The claim that Defendant Local 122's selection devices and requirements, i. e., the journeyman tests, work and age requirement, residency requirement, and employer recommendations, for handyman membership, discriminate against blacks. (No. 30(a)-(f), pp. 7-9, Plaintiffs' Revised Pre-Trial Order)."

Paper 259; see Pretrial Order Paper 250.

II LOCAL 122 MEMBERSHIP

There are four kinds of membership in Local 122: journeyman, handyman (sometimes called production worker), limited (retired), and fourth-year apprentice member. Journeyman and handyman members (sometimes collectively called active members) have full privileges and voting powers. This case in its present posture does not directly relate to retired or apprentice members (See St. 202-206).

The designations "journeyman" and "handyman" reflect different kinds of skill in the sheet metal trade and different employment situations. The racial composition of Local 122's combined membership in the journeyman and handyman categories is reflected in this table:

                               LOCAL 122 MEMBERSHIP
                               1960 to 1977, BY RACE
                NUMBERS OF
                 MEMBERS
                 AS OF
                JANUARY 1     TOTAL     BLACK     WHITE
                   1960        500        0        500
                   1965        546        0        546
                   1966        548        0        548
                   1967        551        0        551
                   1968        569        0        569
                   1969        580        0        580
                   1970        582        0        582
                   1971        584        0        584
                   1972        614        0        614
                   1973        618        0        618
                   1974        598        0        598
                   1975        605        3        602
                   1976        585        5        581
                   1977        548        4        544
                

(St. 213; St. Table VII).

Applicants for direct admission to Local 122 as handymen are not required to take an examination, nor must they fulfill a four-year work requirement or age requirement, but they must be an employee of a union contractor in a specialty skills trade, e. g., the manufacture of kitchen equipment (See St. 218, 200). An individual applying for handyman membership must be recommended for membership by the contractor employing him (St. 219). In order subsequently to become a journeyman, a handyman must pass a journeyman test (St. 220). A handyman who wishes to apply for journeyman membership in Local 122 must be recommended by his employer for such status (St. 221). A handyman is...