Rios v. Enterprise Ass'n Steamfitters Local 638 of U.A.

• Decision Date: 24 June 1974
• Docket Number: 834,Nos. 647,D,s. 647
• Citation: 501 F.2d 622
• Parties: 8 Fair Empl.Prac.Cas. 293, 8 Empl. Prac. Dec. P 9488 George RIOS et al., Plaintiffs-Appellees, v. ENTERPRISE ASSOCIATION STEAMFITTERS LOCAL 638 OF U.A. et al., Defendants-Appellants. UNITED ATATES of America, Plaintiff-Appellee. v. ENTERPRISE ASSOCIATION STEAMFITTERS LOCAL 638 OF U.A. et al., Defendants-Appellants. ocket 73-2110, 73-2266.
• Court: U.S. Court of Appeals — Second Circuit

Page 622

501 F.2d 622

8 Fair Empl.Prac.Cas. 293, 8 Empl. Prac. Dec. P 9488

George RIOS et al., Plaintiffs-Appellees, v. ENTERPRISE ASSOCIATION STEAMFITTERS LOCAL 638 OF U.A. et

al., Defendants-Appellants.

UNITED ATATES of America, Plaintiff-Appellee. v. ENTERPRISE ASSOCIATION STEAMFITTERS LOCAL 638 OF U.A. et

al., Defendants-Appellants.

Nos. 647, 834, Docket 73-2110, 73-2266.

United States Court of Appeals, Second Circuit.

Argued March 12, 1974.

Decided June 24, 1974.

Richard S. Brook, New York City (Ernest Fleischman, Delson & Gordon, New York City, of counsel), for defendand-appellant Enterprise Assn. Steamfitters Local 638 of U.A.

Dennis R. Yeager, New York City (E. Richard Larson, Marilyn R. Walter, New York City, of counsel), for plaintiffs-appellees George Rios, and others.

Joel B. Harris, Asst. U.S. Atty. (Paul J. Curran, U.S. Atty., S.D.N.Y., Steven J. Glassman, Asst. U.S. Atty., New York City, of counsel), for plaintiff-appellee United States.

Before HAYS and MANSFIELD, Circuit Judges, and DAVIS, Judge. ^*

MANSFIELD, Circuit Judge:

Once again we are confronted with questions arising out of the imposition of a specific racial membership goal upon a union as a means of dissipation the effects of its past discrimination against minority applicants for membership. See, e.g., United States v. Wood, Wire & Metal Lathers International Union, Local Union No. 46, 471 F.2d 408 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973). The present appeal is by Local 638, Enterprise Association of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Compressed Air, Ice Machine, Air Conditioning and General Pipefitters (the 'Union') from certain provisions of an Order and Judgment entered on June 21, 1973, after the consolidated trial of two actions in the Southern District of New York before Judge Dudley B. Bonsal, sitting without a jury. The portions of the Order appealed from relate to the admission of 'non-whites' into Union membership and into a joint employerunion apprenticeship program. The term 'non-white' as so used is defined to mean black and Spanish sur-named workers. We remand the case for the purpose of reestablishing the percentage goals upon the basis of relevant statistical data. Subject to such modification the Order and Judgment are affirmed.

Two actions were consolidated for trial purposes by the district court. One is a suit filed by the government in 1971 under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., against the Union and others to enjoin a pattern and practice of discrimination against non-whites in the construction industry. Joined as defendants were (1) several local construction unions, including Local 638, each of which represents a different branch of workers in the industry, (2) joint apprenticeship committees for the different branches, and (3) various associations of employers in the industry. Separate trials were ordered of the claims against each Union. On January 3, 1972, after a three-day hearing on the government's application for preliminary injunctive relief, Judge Bonsal found that the Union had unlawfully discriminated in the past against non-whites, failing among other things to admit some 169 qualified non-white workers to membership. 337 F.Supp. 217 (S.D.N.Y.1972). He ordered the Union to admit them and temporarily enjoined a strike protesting an employer's non-discriminatory action in laying off white and non-white workers when the work force was reduced upon the completion of a construction job. No appeal was taken from his findings, conclusions or order.

The government's suit against the Union was consolidated for trial purposes with a class action against the Union and others by four non-white workers (known as the 'Rios' action) claiming that the Union, the Mechanical Contractors Association of New York, Inc. ('MCA') and the Joint Steamfitters Apprenticeship Committee of the Steamfitters Industry ('JAC') had failed to admit non-whites to membership, had refused non-whites access to the steamfitters' apprenticeship program on the same basis as whites, and had failed to provide non-whites with equal job opportunities, all in violation not only of Title VII of the Civil Rithts Act of 1964, 42 U.S.C. 2000e et seq., but also of 42 U.S.C. 1981 and 1983, and of the Fifth and Fourteenth Amendments. Prior to the consolidation of the Rios and government suits Judge Frankel, after hearing the application of the Rios plaintiffs for preliminary injunctive relief in their action, found, in an opinion filed on March 24, 1971, 326 F.Supp. 198, that the Union 'had followed a course of racial discrimination over the years,' which had had the effect, among others, of wrongfully excluding three of the plaintiffs from membership in the Union. By was of preliminary relief the Union was ordered to admit the three to membership. No appeal was taken by the Union from this preliminary injunction.

Following the consolidated trial Judge Bonsal, in detailed findings and conclusions issued on June 21, 1973, 360 F.Supp. 979, found that, although the Union had taken some affirmative action since the entry of the preliminary injunction to increase non-white participation in the construction industry (principally by joining in a joint industry program called the 'New York Plan,' which sought to recruit and find jobs for minority employees), it had continued its pattern and practice of discrimination against non-whites by failing to admit them to full journeyman status, by discriminating against them in work referral, and by participating in an apprenticeship program which discriminated agaist them.

In an Order and Judgment filed with his opinion the district judge enjoined the defendants from discriminating against individuals on the basis of race, color or national origin and directed the Union to receive and process applications for membership and references for employment and to administer its affairs in a nondiscriminatory manner. The Order appointed an Administrator, Vincent McDonnell, Esq., to implement its provisions and to supervise performance by the parties. The defendants were directed, within three months of the date of the Order, to submit to the Administrator an 'affirmative action program' designed to secure the admission of a sufficient number of nonwhites to membership as journeymen in the Union's A Branch 'to achieve a minimum goal of 30% Non-white membership by July 1, 1977.' (Members of the Union's 'A Branch' perform construction steamfitting work and generally receive higher hourly earnings than do members of the 'B Branch,' who perform shop or repair work.) With a view to achieving the prescribed 30% Goal, guidelines were established for direct admission to the A Branch membership and for the administration of the apprenticeship program, subject to such changes as might later be approved by the Administrator and the court.

The Order further directed that, during the three-month period following its issuance, certain 'Transitory Provisions' were to be observed by the Union. During this period the Union was directed to admit only (1) graduates of the Apprenticeship Program and (2) non-whites who had met certain experience or certification requirements or who had successfully completed a practical examination to be administered by a Board of Examiners. The Board, which was authorized to act by majority rule, consisted of the Administrator or his representative, a representative of the Union, and one chosen by the Administrator from a 'minority referral' source. The Order required the defendants, within five days after its effective date, to submit a form of such practical examination for approval by the court and to administer the examination once a month, after such approval, giving advance notice to each applicant.

The Order further established temporary procedures for an apprenticeship training program during the period prior to adoption by the court of the 'affirmative action program.' It specified that during 1973 there should be a minimum of 400 apprentices, of whom 175 should be non-white, indentured into a program not to exceed four years. Any additional apprentices must be indentured on the basis of one non-white for every white.

The parties submitted to the Administrator their proposals for and comments with respect to an 'affirmative action program' that would incorporate permanent relief with respect to admissions to membership and administration of the apprenticeship program. On March 29, 1974, the district court adopted an 'Affirmative Action Plan' (the 'Plan'), which generally implements the terms of the court's Order. The Plan continues Mr. McDonnell in office as Administrator until July 31, 1977, and directs that the minimum goal of 30% Non-white membership in the A Branch shall be achieved in stages, 15% By July 15, 1974, 20% By July 15, 1975, 25% By July 15, 1976 and 30% By July 1, 1977. The categories of A Branch members to be used as the measure for determining these goals are defined, with the direction that the goals are to be met through (1) a four-year apprenticeship program, (2) direct admission to the A Branch, and (3) other trainee programs. Detailed standards and conditions are fixed for admission of non-whites to the first two of these categories, the Plan directing that a minimum of 100 non-whites shall be indentured into the apprenticeship program each year through 1977 and that a practical examination for admission to the A Branch shall be given weekly or at such other intervals as are approved by the Administrator, upon at least two weeks notice to applicants. The three-person Board of Examiners, which is authorized to act by majority vote and to determine the results of each examination, is to consist of the Administrator or his representative, a Union representative and a representative of the 'non-white community' chosen by the Administrator. The Union and employers are also...