Rios v. Enterprise Ass'n Steamfitters Loc. U. No. 638 of UA

• Decision Date: 24 March 1971
• Docket Number: No. 71 Civ. 847.,71 Civ. 847.
• Citation: 326 F. Supp. 198
• Parties: George RIOS, Eugene C. Jenkins, Eric O. Lewis and Wylie B. Rutledge, Plaintiffs, v. ENTERPRISE ASSOCIATION STEAMFITTERS LOCAL UNION NO. 638 OF U. A., Mechanical Contractors Association of New York, Inc. and the Joint Steamfitting Apprenticeship Committee of the Steamfitters' Industry Educational Fund, Defendants.
• Court: U.S. District Court — Southern District of New York

326 F. Supp. 198

George RIOS, Eugene C. Jenkins, Eric O. Lewis and Wylie B. Rutledge, Plaintiffs, v. ENTERPRISE ASSOCIATION STEAMFITTERS LOCAL UNION NO. 638 OF U. A., Mechanical Contractors Association of New York, Inc. and the Joint Steamfitting Apprenticeship Committee of the Steamfitters' Industry Educational Fund, Defendants.

No. 71 Civ. 847.

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

March 24, 1971.

Dennis R. Yeager, E. Richard Larson, New York City, for plaintiffs; Douglas D. Broadwater, George Cooper, New York City, of counsel.

Peter Kaiser, New York City, for defendants, Local Union No. 638 and Union Members of Apprenticeship Committee; John A. Mcavinue, Jr., New York City, of counsel.

Breed, Abbott & Morgan, New York City, for Mechanical Contractors Assn. and Employer Members of Apprenticeship Committee; Lloyd V. Almirall, Thomas A. Shaw, Jr., Michael C. Devine, New York City, of counsel.

OPINION

FRANKEL, District Judge.

The four plaintiffs, three black and one Puerto Rican, charge that they have suffered denials of employment and lost other advantages of union membership because of unlawful discriminations on account of race and national origin. They bring this suit for themselves and for the class of persons they describe as being similarly situated. Their complaints appear to be primarily against defendant Union, Enterprise Association Steamfitters Local Union #638 of U. A., but they charge wrongs also by defendant Mechanical Contractors Association of New York, Inc., an employer group, and by defendant Joint Steamfitting Apprenticeship Committee of the Steamfitters' Industry Educational Fund, an employer-union entity. As substantive bases for their claims, plaintiffs invoke the relatively ancient and general civil rights provisions of 42 U.S.C. §§ 1981 and 1983, along with Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The Court's jurisdiction is rested upon 28 U.S.C. §§ 1343, 2201 and 2202.

Simultaneously with the filing of their complaint, plaintiffs brought by order to show cause a motion for a preliminary injunction. In addition to affidavits and exhibits from both sides, the court has heard the live testimony of five witnesses called by plaintiffs, one of whom was also deposed between the noticing and the return date of the motion. Defendants offered no such additional evidence. Upon the record thus made, and solely for the question of temporary relief now decided, the court states the following findings and conclusions:

Defendant Local Union serves as a collective bargaining representative for steamfitters employed in the construction industry in the New York City metropolitan area. By its agreement with defendant Contractors Association, the Union engages to "furnish to the members of the * * * Association all the competent steamfitters and apprentices which they demand * * *." To implement this arrangement, the Union keeps its "books of membership" open for transfers of workers from other locals, and supplies the employer group with current membership lists. In addition to these explicit arrangements, business agents of the Union serve the members who need jobs, at least by supplying information as to openings. Moreover, the Union purports to screen people for competence in accepting them for membership, so that the status of member serves in some measure as a certification of suitability to prospective employers. Finally, while it is not critical for present purposes and therefore not necessary to pursue in detail, there is evidence of union pressure upon both contractors and workers to discourage the employment of non-union men for jobs as steamfitters.

It seems plain, in sum, that membership in defendant Union is a substantial help, and non-membership a substantial detriment, in obtaining and keeping employment in the steamfitting industry. And this is the central concern of three of the four plaintiffs now before the court who contend that they are qualified and experienced as steamfitters, but denied the benefits of union membership because of their race or national origin. George Rios is of Puerto Rican ancestry; Eugene C. Jenkins and Eric O. Lewis are Negroes. They range in age from 30 to 37. All three have had substantial training as steamfitters and plumbers, mainly on the job, and, in Jenkins's case, in school and in military service as well. All three have worked for substantial periods as steamfitters, proving themselves competent at their work.

While these three plaintiffs have worked in the steamfitting industry, and were reported to be so employed at the time of our evidentiary hearing, they have suffered, and they face, periods of unemployment which would in all probability have been (or will be) shortened by the advantages of information and other assistance flowing from membership in defendant Union. They have sought such membership in vain. The Union, as is reflected dramatically in its overwhelmingly white and non-Spanish membership¹ contrasted with the composition of the working population in its area, has followed a course of racial discrimination over the years. Cf. Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir. 1970), and cases cited therein; Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970); United States v. Hayes International Corporation, 415 F.2d 1038, 1043 (5th Cir. 1969). The same animus, now plainly unlawful if it was ever otherwise, has prompted the denial of membership to plaintiffs Lewis, Rios and Jenkins. The Union has repeatedly failed to respond to the requests for application forms or for admission made by these three plaintiffs. Plaintiff Lewis, when he went to the office of defendant Mechanical Contractors Association of New York, Inc., was told that he did not meet union qualifications.² But before this court, the defendants have made no attempt to rebut the strong evidence from plaintiffs and their past and present employers that they are fully qualified to perform a steamfitter's job.³ Further evidence of the Union's discriminatory behavior appeared in the uncontradicted testimony of Frederick Clarke, a contractor for whom plaintiffs Rios, Jenkins and Lewis were employed as steamfitters in 1970. Clarke testified that a business agent from defendant Union visited his Harlem work site in April 1970, questioned Rios about not having a Union book, and told Clarke that he had to hire Union men. Clarke asked the Union agent to issue permits for the non-union men then working at the site, but there was never any action on this request, although Clarke himself eventually signed a collective bargaining agreement with the Union.

The record as it is now made is convincing that the Puerto Rican ancestry of Rios and the skin color of Lewis and Jenkins in fact explain their exclusion from the Union.

It is not disputed that these plaintiffs have duly and meticulously pursued the administrative remedy of attempted conciliation provided by Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-5. They have received requisite letters from the Equal Employment Opportunity Commission authorizing the institution of the present suit. 42 U.S.C. § 2000e-5(e). And they have, as the foregoing findings show, demonstrated a large probability of ultimate success in proving the violations Congress has denounced.

The Union, on the other hand, reveals, and indeed insists upon, factors that tilt the balance of the equities still farther toward the plaintiffs. The Union denies that it operates a hiring hall. It goes on to urge, unsuccessfully but revealingly, that union membership is not at all relevant to the obtaining of employment, this being handled on his own by each man (there are said to be no woman steamfitters, and this is not here in question). Union counsel suggested in argument, however, that the worth of the Union's imprimatur will suffer if unqualified workers are "held out" as competent steamfitters by virtue of their membership. Thus, the Union essentially concedes that membership may be of substantial utility in gaining employment, if only because employers interpret membership as a sign of competence. There is, in all these circumstances, no reason for serious concern about the Union's reputation, since the indications are that Rios, Jenkins and Lewis are amply qualified. In sum, the dubious and speculative injuries to the Union from a temporary injunction are solidly outweighed by the harm the three qualified plaintiffs would suffer from its denial. The preliminary relief they seek will be granted. Cf. Local 53 of Int. Ass'n of Heat & Frost I. & A. Wkrs. v. Vogler, 407 F.2d 1047 (5th Cir. 1969); United States v. Hayes International Corporation, 415 F.2d 1038 (5th Cir. 1969).

Different questions are presented, and a different result is reached, in the case of the remaining plaintiff, Wylie B. Rutledge. Rutledge is 21 years old, black, and, according to his affidavit, possessor of a high school equivalency diploma. He has for some time been enrolled in a program for recruitment and training of young minority group workers for jobs in construction industry apprenticeship programs. In November, 1969, he took and passed an examination given by the elevator constructors' union. He went to work as an apprentice for two months thereafter. Then, his affidavit says: "I was not allowed to complete the apprenticeship program of the elevator constructors because I was dismissed by two employers, allegedly because I missed and was late for work too frequently." His affidavit also describes some miscellaneous work experience unrelated to the construction industry and to the issues in this case.

In January, 1970, Rutledge received notice of a forthcoming examination for admission to defendant Apprenticeship Committee's apprenticeship program. The examination, originally devised and run for the Committee by New York University, and administered since 1967 by Stevens Institute of...