United States v. International Longshoremen's Association

• Decision Date: 03 May 1972
• Docket Number: 71-1386.,No. 71-1367,71-1367
• Citation: 460 F.2d 497
• Parties: UNITED STATES of America, Appellee, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, an unincorporated association, Atlantic Coast District, International Longshoremen's Association, an unincorporated association, Locals 829 and 858, I. L. A., Baltimore, Maryland, unincorporated associations, Appellants. UNITED STATES of America, Appellant, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, an unincorporated association, Atlantic Coast District, International Longshoremen's Association, an unincorporated association, Locals 829 and 858, I. L. A., Baltimore, Maryland, Unincorporated associations, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

460 F.2d 497 (1972)

UNITED STATES of America, Appellee, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, an unincorporated association, Atlantic Coast District, International Longshoremen's Association, an unincorporated association, Locals 829 and 858, I. L. A., Baltimore, Maryland, unincorporated associations, Appellants.

UNITED STATES of America, Appellant, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, an unincorporated association, Atlantic Coast District, International Longshoremen's Association, an unincorporated association, Locals 829 and 858, I. L. A., Baltimore, Maryland, Unincorporated associations, Appellees.

Nos. 71-1367, 71-1386.

United States Court of Appeals, Fourth Circuit.

Argued December 8, 1971.

Decided May 3, 1972.

Julius Miller, New York City (Gleason & Miller, New York City, on brief), for International Longshoremen's Assn., Atlantic Coast District, and Locals 829 and 858.

John W. Davis, Atty., Dept. of Justice (David L. Norman, Asst. Atty. Gen., David L. Rose, Atty., Dept. of Justice, and George Beall, U. S. Atty., D. Md., on brief), for the United States.

Before BOREMAN, Senior Circuit Judge, and BRYAN and BUTZNER, Circuit Judges.

BUTZNER, Circuit Judge:

This appeal and cross-appeal arise out of an action¹ brought by the Attorney General under Title VII of the Civil Rights Act of 1964² to combat racial discrimination that limits employment opportunities for longshoremen in the Port of Baltimore. The district court ordered the International Longshoremen's Association, its Atlantic Coast District and two of its racially segregated locals³ to operate a single hiring hall, to institute a non-discriminatory seniority system, and to fill permanent vacancies in longshoreman gangs on the basis of seniority instead of race. No party has assigned error to these provisions of the court's decree, and they have been implemented pending this appeal.

The district court also ordered the merger of predominately white local 829 with predominately black local 858. The ILA, the District, and the locals appeal from this order. Judge Boreman and Judge Butzner join in affirming the district court on this issue. Judge Bryan dissents.

The district court refused the government's request that racially segregated longshoreman gangs immediately be reorganized on a non-racial basis. Judge Boreman and Judge Bryan join in affirming the district court on this issue. Judge Butzner dissents.

The effect of this division in the court is to affirm the district court's order in its entirety.

I MERGER OF THE LOCALS

Local 829 was chartered in 1913, and its membership always has been predominately white. The local has no rule that excludes black workers, but an applicant must be sponsored by a member of the local and be approved by a majority of its membership. Moreover, a former president of the local, who held office after the enactment of the Civil Rights Act of 1964, told black applicants that they would have more opportunity to work if they joined the black local. Since 1960, all of the approximately 757 persons admitted to membership were white, and currently the local has only four black longshoremen among its membership of about 1,155.

Local 858 was chartered in 1914, and it has always been composed almost entirely of black persons. It also requires an applicant to be sponsored by a member and to be approved by a majority of its membership. Since 1964, it has admitted 261 black and two white persons. Currently there are only five white longshoremen in its membership of approximately 1,226.

Both locals are members of the ILA and its Atlantic Coast District. Both are parties to the same collective bargaining agreement and their members receive the same rate of pay. Both operate through a system of permanent gangs of 15 to 20 men. New members of the locals obtain work by filling temporary vacancies in a particular gang. When a permanent vacancy occurs, the gang leader selects a replacement who must be approved by other members of the gang. Gangs from both locals are assigned to ships in the Port when stevedores call the hiring halls to place job orders. When calling for gangs, the stevedores maintain a rough form of seniority based primarily on the status of the leader and the performance of his gang.

All members of local 858's gangs are black. All of 829's gangs consist of white longshoremen with two exceptions. This local has a checkerboard gang consisting of both black and white members, but black members of this gang work less desirable jobs. Another gang working out of the white local's hiring hall is composed solely of black longshoremen from both locals.

The evidence is undisputed that black and white gangs possess equal abilities and are capable of doing the same work. Gangs from both locals work for the same stevedores on the same ships and in the same hatches. Since there is no substantial difference in the locals except race, we conclude that the evidence fully substantiates the trial court's finding that the ILA chartered and maintains segregated locals in the Port of Baltimore. The presence of a few members of the opposite race in each local and the absence of racially restrictive bylaws do not invalidate the district judge's ruling.

Section 703(c)(2) of the Civil Rights Act of 1964 declares that it shall be an unlawful employment practice for a labor organization to segregate or classify its membership on the basis of race in any way which would "tend to deprive any individual of employment opportunities."⁴ The district judge found that the maintenance of the ILA's segregated locals is a per se violation of § 703(c) (2). He held:

"The maintenance of separate locals for Negroes and whites performing the same duties in the same geographical area in itself would tend to deprive individual members of equal employment opportunities. As firmly established in Brown v. Board of Education, 347 U.S. 483, 494, 74 S.Ct. 686, 98 L. Ed. 873 (1954), the sanctioning of racially separate groupings in schools is inherently discriminatory, and this principle applies with equal force to cases such as the pending one where equal employment opportunities are involved. The doctrine of `separate but equal\' has long since been laid to rest in other areas . . . No valid reason has been advanced by defendants for this doctrine\'s exhumation to justify the maintenance of racially segregated unions whose members work side by side as longshoremen." 319 F.Supp. at 741.

We agree with the district judge that the maintenance of racially segregated locals inevitably breeds discrimination that violates the Act. Racial segregation limits both black and white employees to advancement only within the confines of their races. The position that would rightfully be an employee's, but for his race, may be filled by a person of lower seniority or inferior capability because the job traditionally has been reserved for either a white person from one local or a black person from the other. Even though union officials strive in good faith to administer their duties impartially, they cannot avoid this inherent inequality, and its consequent violation of the Act. Indeed, so obvious is the discrimination that arises from segregated unions, in every case, save one, courts have ordered or approved mergers. United States v. Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971); Musicians' Protective Union, Local 274 v. American Federation of Musicians, 329 F.Supp. 1226 (E.D.Pa.1971); United States v. Chesapeake & Ohio Railway Co., 3 EPD ¶ 8331, at 7175 (E.D.Va. 1971); Hicks v. Crown Zellerbach Corp., 319 F.Supp. 314 (E.D.La.1970); United States v. Local 189, United Papermakers and Paperworkers, 301 F.Supp. 906 (E.D.La.), aff'd 416 F.2d 980 (5th Cir. 1969); Chicago Federation of Musicians, Local 10 v. American Federation of Musicians, 57 LRRM 2227 (N.D.Ill.1964). Contra, United States v. International Longshoremen's Association, 334 F.Supp. 976 (S.D. Tex.1971).

The wisdom of Judge Harvey's conclusion is illustrated by the record in this case. The evidence discloses that although there are more black gangs working in the Port than white gangs, black longshoremen work fewer hours than white longshoremen and on the average earn less money. Moreover, the black gangs traditionally work more of the "dirty" cargoes than their white counterparts.⁵ The discrepancy in opportunities for work available to black and white longshoremen is due partly to the fact that most of the gearmen, mechanics, and foremen are members of the white local.⁶ Since these men are not hired through the gang system, the defendants contend that the employers' preference for white workers in these classifications cannot be attributed to the union. These facts partially explain the discrimination against black longshoremen but they do not justify it. The record does not establish that black employees are unable to work satisfactorily as gearmen, mechanics, and foremen.

Abolition of the dual hiring halls and the other reforms decreed by the district court do not eliminate the necessity of merging the locals. The ILA's failure to secure equal employment opportunities for its black members in all jobs for which they are qualified is an example of the inherent inequality that the district judge correctly concluded can be remedied only by merger. Apart from further litigation, discrimination against black workers who aspire to non-gang jobs, such as gearmen, mechanics, and foremen, can only be accomplished by bargaining with the stevedores. But the officers of the white local owe no duty to the members of the black local, and it is unrealistic to expect them to participate in hard bargaining on behalf of black longshoremen. The president of the white local, while conceding that he knew members of his local worked 300,000 hours more than members of the black local in 1968, admitted he had done nothing to correct this disparity because it was "not within my power." At best, the...