United States v. International Bro. of Elec. Wkrs., L. No. 38

• Decision Date: 19 June 1970
• Docket Number: No. 19658.,19658.
• Citation: 428 F.2d 144
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL NO. 38; Electrical Joint Apprenticeship and Training Committee, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

428 F.2d 144 (1970)

UNITED STATES of America, Plaintiff-Appellant, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL NO. 38; Electrical Joint Apprenticeship and Training Committee, Defendants-Appellees.

No. 19658.

United States Court of Appeals, Sixth Circuit.

June 19, 1970.

David L. Rose, U. S. Department of Justice, Washington, D. C., Jerris Leonard, Asst. Atty. Gen., Gregory E. Fischbach, Gary J. Greenberg, Arthur D. Wolf, Attys., U. S. Department of Justice, Washington, D. C., on the brief, for appellant.

Thurlow Smoot, Cleveland, Ohio, for appellees.

Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.

EDWARDS, Circuit Judge.

On July 2, 1964, the following federal statute was adopted as a part of the Civil Rights Act of that year:

"(c) Labor organization practices.

"It shall be an unlawful employment practice for a labor organization —

"(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;

"(2) to limit, segregate, or classify its membership, or to classify or fail to refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual\'s race, color, religion, sex, or national origin; or

"(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

"(d) Training programs.

"It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training." 42 U.S.C. § 2000e-2(c) (1964).

These provisions became effective as to this union July 2, 1965. 42 U.S.C. § 2000e note (1964).

In the opinion which decided the instant litigation in the United States District Court for the Northern District of Ohio, Eastern Division, the District Judge included a table showing the racial composition of the membership of defendant Local 38 of the International Brotherhood of Electrical Workers. That table follows:

                Date               White        Negro
                Jan. 1, 1957       1049           0
                Jan. 1, 1960       1101           3
                Jan. 1, 1965       1292           2
                July 1, 1967       1316           2
                Oct. 1, 1967       1329           3
                Sept. 25, 1968     1331           4
                

The Attorney General of the United States initiated this suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-15 (1964), as amended, (Supp. IV 1965-68), on August 8, 1967. The complaint alleged that in violation of the statute just cited, defendants had engaged in and were engaging in racial discrimination by excluding Negroes from union membership and by discriminating against them in the union-operated work referral system, in the joint union-contractor apprentice program, and in the contractor affiliation program. Defendants denied these charges generally, and specifically denied any such discrimination after the effective date of the Act.

The District Judge found that there had been an historic pattern of racial discrimination in the operations of Local 38 and the Electrical Joint Apprenticeship and Training Committee (EJAC); that such discriminatory practices had continued after the effective date of the Civil Rights Act in the union-operated employment referral system; that while there was evidence that raised a "strong suspicion" of discrimination in the apprentice selection process following the effective date of the Act, such evidence was insufficient to support a positive finding of discrimination; and that the evidence did not support findings of post-Act discrimination in relation to union membership and contractor affiliation. He further found that under a new union local leadership, which came into office after the filing of the complaint in this case, all discriminatory practices had stopped as a result of good faith efforts on the part of the new administration of the local to follow the Act. The District Judge entered a judgment enjoining any continuation of discriminatory practices in the referral system. He specifically refused to order affirmative relief designed to alleviate the continuing effect of the past discriminatory practices. He also refused the government's request that the court retain jurisdiction of the case.

The government has appealed, contending primarily that the relief afforded was inadequate to effectuate the purposes of the Act. We reverse.

The District Judge in an 87-page opinion analyzing this case, relied heavily upon United States v. Sheet Metal Workers Int'l Ass'n, Local 36, 280 F. Supp. 719 (E.D.Mo. 1968). This case, which dealt with similar claims of discriminatory practices on the part of an IBEW local in St. Louis (as well as a Sheet Metal Workers Local), has now been reversed in a decision of the United States Court of Appeals for the Eighth Circuit, United States v. Sheet Metal Workers Int'l Ass'n, Local 36, 416 F.2d 123 (8th Cir. 1969). We believe Judge Heaney's opinion represents a sound interpretation on the critical sections of the Civil Rights Act of 1964 and regret that the District Judge did not have the benefit of its reasoning.

STATEMENT OF THE CASE

The defendant local union (Local 38 of the IBEW) is a construction trades union which has jurisdiction over the electrical trades in the construction industry in the area of Cleveland, Ohio. Defendant, Electrical Joint Apprenticeship and Training Committee, is a union-management controlled committee which operates a training program for electrical trade apprentices in the same area. The union and the industry each have three members on the committee which controls apprentice selection and training. It operates in the union hall.

Local 38 has about 75% of the construction industry in the Cleveland area under contract and by union-industry agreement it operates a hiring hall and referral system for the organized portion of the industry. Under its referral practices and the collective bargaining agreement, all eligible journeymen electricians who are members of Local 38 are referred out first before any other persons desiring to work in the electrical trades are referred for jobs.

There are two methods of becoming a journeyman electrician. The first is through acceptance in and completion of the apprentice training program operated by defendant EJAC. The second method of becoming a journeyman is by taking a journeyman's examination given by the union. No such examination had been given except in the year 1959, when it was administered to 24 white applicants, all of whom failed.

The complaint filed by the United States alleged an historic practice of discrimination against Negroes in relation to selection of apprentices, in work referral, and in union membership before the effective date of the Civil Rights Act of 1964. It also alleged that these discriminatory practices continued in somewhat altered form thereafter.

The District Judge found that prior to the effective date of the Civil Rights Act, both defendant Local 38 and defendant EJAC discriminated against Negroes on account of race — the union in its work referral practices and its membership admission practices, and the EJAC in its selection of apprentices.

As to the post-Act practices, the District Judge also found:

The Membership Findings

"The Government contends that as the union has practiced discrimination in the past administration of its apprenticeship classes that all Negroes over apprenticeship age are forever excluded from membership and that continued refusal to directly admit Negroes over apprenticeship age violates Section 703(c) (1) of the Act, 42 U.S.C. § 2000e-2(c). This argument is not correct, for it ignores the realities of the possibility of Negroes over apprenticeship age achieving membership through the referral system. * * *

* * * * * *

"While the fact that there has been no such test for several years is true, the failure to administer such a test cannot be considered discriminatory. It was not until the summer of 1967 that any substantial numbers of Negroes began to work under the jurisdiction of Local 38 through the referral system."

A new union leadership was elected in June of 1967, virtually on the eve of the trial. As to giving the test the District Judge held that:

"They determined to do so at a time when there were enough Negroes qualified to take the test under the existing standards so as to make it meaningful as a practical matter. * * *

"It would thus appear that the initial failure to administer the test for Group One resident journeymen status subsequent to July 2, 1965 could not have affected the employment opportunities of Negroes and that the fact that the test has not yet been given is not racially motivated. While the fact that there were not sufficient Negroes working under the auspices of Local 38 to make the granting of the examination meaningful may itself involve racial discrimination, that is not the question here under consideration and it will be dealt with in considering the referral system.

"It is therefore this Court\'s conclusion that the plaintiff has failed to prove a pattern and practice of racial discrimination on the part of Local 38 by its * * * failure to date to administer the test for Group One which will open the door for an application to journeyman membership.

"Were it not for the fact that the defendant union is pressing to go forward with the Group One test, the Court would issue an order requiring it to do so, for a continuing failure

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