United States v. LOCAL 638, ENTERPRISE ASS'N OF STEAM, ETC.

• Decision Date: 21 June 1973
• Docket Number: 71 Civ. 847.,No. 71 Civ. 2877,71 Civ. 2877
• Citation: 360 F. Supp. 979
• Parties: UNITED STATES of America, Plaintiff, v. LOCAL 638, ENTERPRISE ASSOCIATION OF STEAM, HOT WATER, HYDRAULIC SPRINKLER, PNEUMATIC TUBE, COMPRESSED AIR, ICE MACHINE, AIR CONDITIONING AND GENERAL PIPEFITTERS, et al., Defendants. George RIOS et al., Plaintiffs (Complainants), v. ENTERPRISE ASSOCIATION STEAMFITTERS LOCAL UNION #638 OF U.A. et al., Defendants (Respondents).
• Court: U.S. District Court — Southern District of New York

360 F. Supp. 979

UNITED STATES of America, Plaintiff, v. LOCAL 638, ENTERPRISE ASSOCIATION OF STEAM, HOT WATER, HYDRAULIC SPRINKLER, PNEUMATIC TUBE, COMPRESSED AIR, ICE MACHINE, AIR CONDITIONING AND GENERAL PIPEFITTERS, et al., Defendants.

George RIOS et al., Plaintiffs (Complainants), v. ENTERPRISE ASSOCIATION STEAMFITTERS LOCAL UNION #638 OF U.A. et al., Defendants (Respondents).

Nos. 71 Civ. 2877, 71 Civ. 847.

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

June 21, 1973.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Whitney North Seymour, Jr., U. S. Atty., S.D.N.Y., for the Government; Joel B. Harris, Steven J. Glassman, Asst. U. S. Attys., of counsel.

Dennis R. Yeager, E. Richard Larson, New York City, for plaintiffs in 71 Civ. 847.

Delson & Gordon, New York City, for defendants Local 638 and the union members of JAC; Ernest Fleischman, Richard S. Brook, New York City, of counsel.

Breed, Abbott & Morgan, New York City, for defendants MCA and the employer members of JAC; Thomas A. Shaw, Jr., Kevin T. O'Reilly, New York City, of counsel.

OPINION

BONSAL, District Judge.

This is an action brought by the Attorney General of the United States under Title VII of the Civil Rights Act of 1964 ("Title VII") (42 U.S.C. § 2000e et seq.) pursuant to authority granted to the Attorney General in that Act (42 U. S.C. § 2000e-6(a)). The defendants are four local unions in the building trades industry servicing metropolitan New York, and their counterpart Joint Apprenticeship Committees and employee associations. Separate trials were ordered for each local union and its counterparts. See, e.g., the case involving Local 40, United States v. Local 638, Enterprise Association, etc., et al., 347 F. Supp. 169 (S.D.N.Y.1972) (Gurfein, J.).

In the case of Local 638, Enterprise Association of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Compressed Air, Ice Machine, Air Conditioning and General Pipefitters (hereinafter "Local 638"), the government's action (United States v. Local 638, et al., 71 Civ. 2877) was consolidated for purposes of trial with a private action (Rios v. Enterprise Association, etc. Local Union # 638, et al., 71 Civ. 847) which had been instituted by four "nonwhites"¹ — allegedly the victims of unlawful employment discrimination — against Local 638, the Mechanical Contractors' Association (MCA), and the Steamfitting Industry's Joint Apprenticeship Committee (JAC). By order of Judge Tenney, the private action has proceeded as a class action on behalf of two distinct classes: a) all Negro and Spanish-surnamed Americans residing in New York City and the Counties of Suffolk and Nassau in the State of New York who now or at any time in the future have the skills necessary to work as journeymen steamfitters; and b) all Negro and Spanish-surnamed Americans residing in New York City and the Counties of Suffolk and Nassau in the State of New York who now or at any time in the future are capable of learning such skills and who wish to obtain access to steamfitting work in New York City and said Counties.²

A trial of the consolidated action commenced on January 15, 1973 and concluded on January 26, 1973. Decision was reserved, and the parties have submitted Proposed Findings of Fact, Conclusions of Law, and supporting Post Trial Memoranda.

THE COMPLAINTS

A. The Government Action (United States v. Local 638, etc., et al., 71 Civ. 2877)

Named as defendants in the government action are Local 638, MCA, and JAC. MCA is named as a defendant "for purposes of relief only pursuant to Rule 19(a)(1) of the Federal Rules of Civil Procedure." The complaint alleges that Local 638 is engaged in a pattern and practice of resistance to the full enjoyment by nonwhites of rights secured to them by Title VII of the Civil Rights Act³ by:

"(a) failing and refusing to admit nonwhite workmen into . . . Local 638 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 . . . A Branch members, nearly all of whom are white, thereby perpetuating the effects of its past discrimination;

"(c) failing and refusing to recruit blacks for membership in and employment through . . . Local 638 on the same basis as whites are recruited;

"(d) failing and refusing to permit contractors with whom . . . Local 638 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 non-white workmen the opportunities for employment in the . . . steamfitting trade . . . or otherwise to take affirmative action to overcome the effects of past racially discriminatory policies and practices."

The complaint alleges that JAC also is engaged in a pattern and practice of resistance to the full enjoyment by non-whites of rights secured to them by Title VII by:

"(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 by giving a preference in the selection of apprentices to friends and relatives of union members, nearly all of whom are white;

"(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."

B. The Rios Action (Rios, et al. v. Enterprise Association Steamfitters Local Union #638, etc., 71 Civ. 847)

This class action was brought by four nonwhites⁴ on behalf of nonwhites who have, or are capable of learning, the skills necessary to work as journeymen steamfitters within the jurisdiction of Local 638.⁵ The complaint names as defendants Local 638, MCA, and JAC, and alleges that the three defendants in concert have failed to admit plaintiffs to membership in the A Branch of Local 638 (journeymen) and to participation in the JAC apprenticeship program on the same basis as whites, and that the defendants have failed to provide non-white A Branch members with equal access to job opportunities as journeymen steamfitters. Plaintiffs sue under the Fifth and Fourteenth Amendments to the United States Constitution, 42 U.S. C. §§ 1981 and 1983, and Title VII.

Defendant MCA has moved to dismiss the Rios complaint against it on the grounds that it is neither an "employer" within the meaning of 42 U.S.C. § 2000e-2(a) nor an "employment agency" within the meaning of § 2000e-2(b), and that the complaint fails to state a cause of action against it. Plaintiffs oppose MCA's motion.

BACKGROUND FACTS

1. Local 638 is a labor union whose territorial jurisdiction consists of the five boroughs of the City of New York and Nassau and Suffolk counties.

2. Local 638 is a member of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry ("United Association").

3. Local 638 represents its members in collective bargaining with defendant MCA and other steamfitter contractors.

4. Local 638 has two branches: a construction or A Branch, whose members have the status of journeymen and do mainly construction work; and a metal trades or B Branch, whose members work in shops and do repair work.

5. Since 1960, the journeymen membership of the A Branch has been as follows:

                Total Spanish-
                Year Members Blacks surnamed
                1960         3644            0               0
                1961         3587            0               0
                1962         3541            0               0
                1963         3528            0               0
                1964         3598            0               0
                1965         3541            0               0
                1966         3549            0               0
                1967         3646            5               2
                1968         3822            5               2
                1969         3866           14               7
                1970         3827           14               7
                1971         3850           21              10
                1972         4198*         129              62
                

6. Since 1960, the number of members of the B Branch has been as follows:

                Total Spanish-
                Year Members Blacks surnamed
                1960         2220
                1961         2337
                1962         2545
                1963         2657
                1964         2847
                1965         2809
                1966         2875
                1967         2774
                1968         2866
                1969         3335
                1970         3656
                1971         3862           300*         200*
                

7. As of September, 1971, at least 399 (11%) of the A Branch members were related by blood or marriage to other members of the union; it is common for relatives to be working on the same job site.

8. Members of the A Branch have a higher hourly rate of pay than members of the B Branch. Being a member of the A Branch is a substantial aid in obtaining a job as a construction steamfitter in the territorial jurisdiction of Local 638 and is a prerequisite to obtaining job security and preventing early layoffs. Another advantage of A Branch membership is the greater opportunity for advancement and for earning overtime pay.

9. Workers in the construction steamfitting industry are engaged in the installation of refrigeration, air conditioning, heating, ventilating, pneumatic tube, and sprinkler systems in office buildings, apartment houses, power plants, and other large structures. It is the job of steamfitters on these construction sites to connect the various pipes, pumps, ducts, fixtures, and valves that these systems require. It is necessary for a steamfitter to know how to measure, cut, thread, and connect pipe. In addition, it is necessary that at least some of the steamfitters on a job site know how to weld pipe "in position." Since incompetent...