EQUAL EMPLOYMENT OPPORTUNITY COMM'N v. Local 638, 71 Civ. 2877 (HFW).

• Citation: 421 F. Supp. 603
• Decision Date: 25 November 1975
• Docket Number: No. 71 Civ. 2877 (HFW).,71 Civ. 2877 (HFW).
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, and the City of New York, Plaintiffs, v. LOCAL 638 et al., Defendants. LOCAL 28, Third-Party Plaintiff, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, Third-Party Defendant. LOCAL 28 JOINT APPRENTICESHIP COMMITTEE, Fourth-Party Plaintiff, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, Fourth-Party Defendant.
• Court: U.S. District Court — Southern District of New York

421 F. Supp. 603

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, and the City of New York, Plaintiffs, v. LOCAL 638 et al., Defendants.

LOCAL 28, Third-Party Plaintiff, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, Third-Party Defendant.

LOCAL 28 JOINT APPRENTICESHIP COMMITTEE, Fourth-Party Plaintiff, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, Fourth-Party Defendant.

No. 71 Civ. 2877 (HFW).

United States District Court, S. D. New York.

November 25, 1975.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Paul J. Curran, U.S. Atty., S.D.N.Y. by Taggart D. Adams, Louis G. Corsi, New York City, for plaintiff U.S. Equal Opportunity Commission.

W. Bernard Richland, New York City Corp. Counsel by Beverly Gross and Thomas A. Trimboli, New York City, for plaintiff City of New York.

Sol Bogen, New York City, for defendant Local 28.

Rosenthal & Goldhaber by William Rothberg, Brooklyn, N.Y., for defendant Joint Apprenticeship Committee and Trust.

Louis J. Lefkowitz, Atty. Gen. of N.Y. by Dominic Tuminaro, New York City, for third and fourth-party defendant New York State Div. of Human Rights.

AFFIRMATIVE ACTION PROGRAM

Introduction

1. This Affirmative Action Program ("Program") is adopted pursuant to the Decision and Order dated July 18, 1975 and the Order and Judgment dated August 28, 1975 and entered in this action on September 2, 1975 ("Order and Judgment"). The goal of this Program is to assure that the non-white¹ membership in Local Union No. 28 of the Sheet Metal Workers' International Association ("Local 28") reaches a minimum level of 29% by July 1, 1981; to assure that substantial and regular progress is made toward this goal in each year prior to 1981; and to assure that non-white members of Local 28 and nonwhite apprentices of Local 28 share equitably in all employment opportunities afforded to members of Local 28.

2. For the purpose of reaching the above goal of 29% by July 1, 1981 this Program establishes as interim percentage goals for the non-white membership of Local 28 the following:

                       July 1, 1976         10%
                       July 1, 1977         13%
                       July 1, 1978         16%
                       July 1, 1979         20%
                       July 1, 1980         24%
                

Each of the above percentages shall be measured against the total membership of Local 28 as of each interim goal date respectively and the final goal date. For the purpose of measurement, total membership shall include all journeyman members, all pensioners² who have been employed as sheetmetal workers within the last three years, and all members or participants in the Local 28 Apprentice Program ("Apprentice Program"). The parties to this action and the Administrator are to implement this Program so that these interim goals may be attained. The Administrator shall periodically review the progress toward the attainment of these goals and take such action as he is empowered to take under the Order and Judgment to assure their achievement.

3. Admission to Journeyman membership in Local 28 shall be attained only through the following procedures:

a) Successful completion of a `hands-on' journeyman test administered pursuant to Paragraphs 5-14; or

b) establishment of proof of the required experience in the sheetmetal trade pursuant to Paragraph 15; or

c) successful completion of the Local 28 Apprentice Program; or

d) transfer in accordance with the Sheet Metal Workers' International Union Constitution and Ritual; or

e) organization of non-union shops.

4. Membership in the Apprentice Program shall be obtained only through the following procedures:

a) successful completion of an apprentice aptitude test as set forth in Paragraphs 21-32; or

b) entry with advanced standing as set forth in Paragraphs 33 through 36.

Admission to Journeyman Status

5. Under the supervision and with the approval of the Administrator, Local 28 shall administer a `hands-on' journeyman's test on October 11, 1975 designed to test fairly and in a non-discriminatory manner the skills needed for a journeyman sheet metal worker. This test and its grading shall be in substance the equivalent of the `hands-on' portion of journeyman's test given by Local 28 in November, 1969 as revised by a sheetmetal expert provided by the plaintiffs or the New York State Division of Human Rights. Disputes as to any proposed revisions shall be resolved by the Administrator. There shall be a filing fee of $25 for this test.

6. Local 28 shall undertake a program of publicity and advertising and prepare, make available, and process applications relating to the October 11, 1975 "hands-on" journeyman's test in accordance with the standards and conditions set forth heretofore by the parties and the Administrator. The administration and grading of the test shall be under the overall supervision of the Administrator and shall be accomplished and recorded in such a manner as to facilitate the professional development and validation of future "hands-on" journeyman's tests.

7. Under the following conditions all persons who receive a passing grade in the test described in Paragraphs 5 and 6, and who are physically fit for sheetmetal work shall be eligible for admission to full journeyman membership in Local 28 as follows:

a) all non-white applicants who receive a passing grade, up to a total of 200 such applicants, shall be admitted to journeyman membership by December 1, 1975 in accordance with and subject to the provisions of Paragraphs 16-18 of the Program. In the event that more than 200 non-white applicants receive a passing grade and elect to exercise their rights to admission to journeyman membership under this Program, the 200 non-whites with the highest grades shall be admitted by December 1, 1975; the remaining non white applicants shall be admitted in accordance with the provisions of sub-paragraph (b) of this paragraph;

b) white applicants who receive a passing grade shall be placed on a list and ranked in descending order on the basis of their grades on the examination.

i) white applicants shall be selected for admission in the order of their ranking on the above described list on the basis of a ration to the non-whites admitted pursuant to section (a) of this Paragraph. Said ratio shall be agreed upon by the parties, but in no event shall the ratio be less than one non-white for every white. Such ratio shall be designed with the purpose of implementing the interim goals set forth in Paragraph 2. If the parties cannot agree on a ratio by November 10, 1975 the Administrator shall establish such ratio by November 15, 1975.

ii) all applicants who receive a passing grade but who are not admitted pursuant to subparagraph (a) or section (i) of subparagraph (b) may be ordered admitted to journeyman membership by the Administrator at a time deemed suitable by him. White applicants who have received a passing grade and who are not admitted by March 1, 1976 shall be eligible for a selection priority over other white applicants qualified by the journeyman's test to be held in the Spring of 1976, or subsequent tests. Non-white applicants who have received a passing grade and who are not admitted pursuant to subparagraph (a) shall be admitted by July 1, 1976, if they so elect.

8. Local 28 shall administer a non-discriminatory, "hands-on" journeyman's test under the overall supervision and approval of the administrator in the Spring of 1976 and at least once a year thereafter. The Administrator after consultation with the parties, may apply to the Court to decrease the frequency of the tests consistent with the requirements of the interim goals set forth in Paragraph 2.

9. The journeyman's "hands-on" tests administered pursuant to Paragraph 8 shall be professionally developed and validated in accordance with EEOC Guidelines. Within a reasonable time before the administration of each test (which shall not be less than four weeks unless good cause is shown), Local 28 shall furnish counsel for the parties and the Administrator with (i) a copy of a report demonstrating the validity of the test and (ii) a copy of the test to be administered, provided that counsel for the parties and the Administrator shall not distribute or disclose the contents of the test to any individual or organization except for the purpose of professional validation thereof.

10. All qualified applicants shall be eligible to take the "hands-on" journeyman test specified in this Program. A qualified applicant is defined as follows: any person who

a) has or will have attained the age of 18 by the date of the test, and

b) is a citizen or a lawful permanent resident alien legally entitled to work in the United States, and

c) has resided in New York City or the counties of Westchester (N.Y.) Nassau (N.Y.) Suffolk (N.Y.), Passaic (N.J.) Bergen (N.J.) Hudson (N.J.) Union (N.J.) or Essex (N.J.) for six (6) months prior to the filing of an application, and

d) has one year of sheet metal work experience including but not limited to employment as a member in any branch of Local 400 of the Sheet Metal Workers International Association, sheet metal experience in the Armed Forces or vocational education or training related to the skills of a journeyman sheet metal worker.

Persons presently registered or recently registered in the Local 28 Apprentice Program or any other recognized apprentice program affiliated with the Sheet Metal Workers' International Association are not eligible.

11. Subject to the approval of the Administrator, Local 28 shall develop a standardized application form for the "hands-on" journeyman's test. Such forms shall include only the following:

a) provisions for the name, address, telephone number, social security number, citizenship or lawful resident alien status, residency, record of convictions, age, sex and race or ethnic identification of the applicant (with a notation that information regarding race or ethnic identification is required solely for the purpose of compliance with the court order herein and the regulations of the

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