Equal Employment Opportunity Commission v. Local 638

• Decision Date: 18 July 1975
• Docket Number: No. 71 Civ. 2877 (HFW).,71 Civ. 2877 (HFW).
• Citation: 401 F. Supp. 467
• 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

401 F. Supp. 467

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.

July 18, 1975.

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COPYRIGHT MATERIAL OMITTED

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

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

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

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

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

OPINION

WERKER, District Judge.

This is an action filed in 1971 by the United States pursuant to § 707(a) of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-6(a). It was originally part of a larger action against four unions in the building trades industry and their joint apprenticeship committee for engaging in a past and continuing pattern and practice of discrimination in admission and employment of non-whites.¹ Soon after issue was joined in that case separate trials were ordered for each union and its related co-defendants.² After severance of the four groups for purposes of trial, the City of New York (the City) was granted leave to intervene in that portion of the action relating to Local Union No. 28 of the Sheet Metal Workers' International Association (Local 28). United States v. Local 638, Enterprise Ass'n, etc., 347 F.Supp. 164 (S.D.N.Y.1972).³

The defendants who were on trial before this court from January 13 to February 3, 1975 are Local 28, Local 28's Joint Apprenticeship Committee and Trust (JAC), and, for purposes of relief only, the New York City Chapter of the Sheet Metal and Air Conditioning Contractors' National Association (Contractors' Association). By virtue of third and fourth party complaints filed by Local 28 and JAC, the New York State Division of Human Rights (the Division) is a defendant in this action for purposes of relief. The third and fourth-party pleadings were predicated upon administrative and judicial proceedings instituted by the State Attorney General against Local 28 and JAC in which the defendants were directed to end racially discriminatory selection and admission practices under the supervision and direction of the Division.⁴See State Commission on Human Rights v. Farrell, 43 Misc.2d 958, 252 N.Y.S.2d 649 (Sup.Ct.N.Y.Cnty. 1964). Although a nominal defendant in this case, the Division has in its papers and at trial consistently aligned itself with the plaintiffs' cause.

The complaint filed by the United States (the government) alleges that Local 28 is engaged in a pattern and practice of resistance to the full enjoyment by non-whites of rights secured to them by Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e-2(c) and 2000e-2(d). The pattern and practice alleged includes, but is not limited to, the following:

(a) Failing and refusing to admit nonwhite workmen . . . as journeymen members on the same basis as whites are admitted;

(b) Failing and refusing to refer nonwhite workmen for employment ... (within its jurisdiction) ... on the same basis as whites are referred by applying standards for referral which have the purpose and effect of ensuring referral priority to ... (its) . . . members ...;

(c) Failing and refusing to recruit blacks for membership in and employment through ... (Local 28) . . . on the same basis as whites are recruited;

(d) Failing and refusing to permit contractors with whom ... (Local 28) ... has collective bargaining agreements to fulfill the affirmative action obligations imposed upon those contractors by Executive Order 11246 by refusing to refer out blacks whom such contractors wish to employ;

(e) Failing and refusing to take reasonable steps to make known to nonwhite workmen the oportunities for employment in the . . . (sheetmetal trade) ..., or otherwise to take affirmative action to overcome the effects of past racially discriminatory policies and practices.

The government's complaint does not allege specific acts of discrimination by defendant JAC. To the extent, however, that plaintiffs have succeeded in establishing such violations at trial, the government's complaint is deemed amended to conform to the proof. See Rule 15(b), Fed.R.Civ.P.

The City's complaint (¶ 10) alleges that Local 28 is engaged in a pattern and practice of resistance to the full enjoyment by non-whites of rights which are secured to them by § B1-7.0 of the New York City Administrative Code as well as by Title VII of the 1964 Civil Rights Act. It sets forth the same allegations as to Local 28 quoted above, and adds as an additional example of discriminatory practice:

(f) Adopting standards for admission to union membership which are not job related and which operate to disqualify a disproportionate number of non-whites for membership.

The City's complaint, furthermore, alleges that defendant JAC is also engaged in a pattern and practice of discrimination, which includes, but is not limited to:

(a) Failing and refusing to make information concerning apprenticeship opportunities available to non-whites on the same basis as it is made available to whites;

(b) Failing and refusing to make apprenticeship opportunities available to non-whites on the same basis as they are made available to whites;

(c) Adopting standards for the selection of apprentices which are not job related and which operate to disqualify a disproportionate number of non-white applicants for apprenticeship.

The allegations of both complaints have been largely substantiated by the evidence produced at trial.

BACKGROUND FACTS

A. Local 28

1. Local 28 is an unincorporated labor union. It is the recognized bargaining agent for journeymen and apprentice sheet metal workers⁵ hired by sheet metal contractors within its geographical jurisdiction.

2. The geographical jurisdiction of Local 28 includes the five boroughs of the City of New York.

3. A non-white has never been an officer of Local 28, or a member of the Executive Board of Local 28.

4. Since its inception in 1913 Local 28 has been governed by its own Constitution and By-Laws, and by the Constitution and Ritual of the Sheet Metal Workers' International Association. Prior to November 1946, the Constitution of the International Association contained a provision for the establishment of an "auxiliary" local union when there was a "sufficient number of eligible Negro applicants." As stated in this provision, the auxiliary was:

subordinate to the established and affiliated white local union and shall be represented by said white local union at all conferences and conventions, including International Conventions .... The same initiation, reinitiation and reinstatement fees shall apply to auxiliary members and the privilege of transfer shall be limited to transferring from one auxiliary to another auxiliary.

5. As of October 1, 1974 Local 28 had collective bargaining agreements with approximately 133 sheet metal contractors in New York City. Those contractors do not employ an individual to perform sheet metal work within the trade jurisdiction of Local 28⁶ unless the individual is a member or apprentice of Local 28, or has been given an "identification slip" (ID Slip) by Local 28 permitting him to temporarily work in the sheet metal industry within the geographic jurisdiction of Local 28. The reason for this is that members of Local 28 will not work with sheet metal workers who do not fit within either of the two categories above. Thus, despite a contract provision which grants Local 28 contractors autonomy in hiring, Local 28 has substantial, if not complete, control of job opportunities which arise with them.

6. In preventing its contractors from hiring non-union non-white sheet metal workers Local 28 has precluded them from fulfilling the affirmative action obligations imposed on them by Presidential Executive Order 11246, 3 C.F.R. Chapter IV § 202, and Mayoral Executive Order 71, April 2, 1968, 96 The City Record 2842 (April 10, 1968). Those orders require recipients of federal construction funds and city construction contracts to take affirmative action to ensure that all applicants for employment enjoy equal access to work opportunities without regard to race, color or national origin.

7. Since 1960 there have been four methods by which individuals have been admitted to membership in Local 28:

a) successful completion of a four-year apprentice program administered by JAC;

b) successful performance on a written and practical examination administered by the Examining Board of Local 28 (journeyman's test);

c) transfer from a sister local union, affiliated with the Sheet Metal Workers' International Association;

d) employment with a newly organized sheet metal contractor who will certify as to its need for the applicant and the applicant's ability to work in accordance with journeyman standards of performance.

The availability of the first method is determined by the collective bargaining agreement between Local 28 and the employers. The availability of the other three methods is determined by the Executive Board of Local 28, with the approval of the Union membership.

8. As of July 1, 1974, 3.19% of the union's total membership (including pensioners) was non-white.

9. Between January 1965 and July 1974 Local 28 admitted 1103 new members, 79.78%...