Petition — Rios v. Enterprise Ass'n Steamfitters, Local No. 638

Supreme Court brief1977

Ask Donna

What actually matters in this document.

Text

| Supreme Court, U. & 2%

FILED

DFC 6 iste |

76-762" |

MICHAEL RODAK, JR, CLERK |

IN THE

Supreme Court of the United States

Ocroser Term, 1976

Gerorce Rios, et al.,

Petitioners,

—VvV.--

ENTERPRISE ASSOCIATION STEAMFITTERS,

Loca No. 638 or U. A., et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JONATHAN Lana

Rosert P. Roserts

National Employment Law Project, Inc.

423 West 118 Street

New York, New York 10027

(212) 866-8591

Turo, Jonnston & ALLEGAERT

Dennis R. Yeacer, Of Counsel

645 Madison Avenue

New York, New York 10022

(212) 752-8668

INDEX

PAGE

Citations to Opinions Below ..............2..........:s----s-e0-eseeeeees 1

IITIIITL, ichisnsitacniiaititansteneseaibitieneandeniaiitiaiidebedeaiiiadtbicamaibadiaeaes 2

nN PIII <5 schini sisccrnsiselaitetienniamnseninbnedintainaeianiniasintatees 2

Statutory Provision Involved .......................-cc-cc-cseceeceeseeeees 3

I Gr i GD iecsirciseniteinicth decitibantinnicttantsittsiiitlaend 4

Reasons for Granting the Writ ..........22...........2.....-00-.00e0 11

I. The Court of Appeals’ Decision Conflicts With

Title VII of the Civil Rights Act of 1964, and

With the Applicable Decisions of This Court and

the Cireuit Courts, and If Permitted to Stand

Will Adversely Affect Numerous Victims of Em-

ployment Discrimination ........................-c-s--ec--ceeeees 11

A. The Denial of Back Pay on the Basis of

Good Faith Conflicts With the Controlling

I SE Tree TI ccesrccesttectecsicttncentitinisonssintamen 14

B. In Finding the Back Pay Claims to Be Hypo-

thetical, the Court of Appeals Adopted an

Allocation of the Burden Proof Which Is in

Conflict With the Applicable Decision of This

Court and Those of the Circuit Courts ........ 15

C. The Denial to Members of the Class of Any

Opportunity to Prove Back Pay Claims

Conflicts With the Principles of the Appli-

cabie Decisions of This Court and Those of

ge 21

II. The Lower Court Erred in Failing to Hold the

PAGE

JAC, the Union and MCA Liable for Back Pay 22

, SRIAIIUED ccccvicssiiensistnieaiiieniiiaisscsiithiniaiindiaiiiapinpiiiaeadainaiail 23

APPENDIX:

Back Pay Opinion of the District Court ............ App. 1

Judgment and Opinion of the Court of Appeals App. 9

Trial Opinion of the District Court -................... App. 34

Order and Judgment of the District Court ........ App. 69

Judgment and Opinion of the Court of Appeals App. 82

Opinion of the District Court ~.........................--. App. 114

Order of the District Cemrt ....-..-cxscccccccccserenesesesese App. 126

Opinion of the District Court ~..................--.........- App. 128

Preliminary Findings of Fact and Conclusions

of Law of the District Court -.......................... App. 134

Order of the District Court -.........2..2222..2...--.-++0- App. 142

Opinion of the District Court ~.............................- App. 145

PAGE

Cases:

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) -....11, 13,

14, 17, 21

Day v. Matthews, 530 F.2d 1083 (D.C. Cir. 1976) -............... 19

EEOC v. Local 638 . . . Local 28, 532 F.2d 821 (2d Cir.

UT ssesiesatebibieiiabetataaeatasetintantteaaiietecebitaniiitaaiatnitadanesainaenenteiemsenasees 16

Ellison v. Rock Hill Printing & Finishing Co., 64 FRD

I ita eidatsinmrelnrattaidinttntnaitnenncentesinn 20

Franks v. Bowman Transportation Co., —— U.S. ——,

TE SII: STIITIIIN isos icieetinnsechisseieninleininssincniptennsinietiitiincintieds 18

Griggs v. Duke Power Co., 401 U.S. 424 (1971) -........... 17

Hairston v. McLean Trucking Co., 520 F.2d 226 (4th

Cir. 1975) ; stecttenttiaainsiiiias 20

Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364

I IN I ntti aah elds lenleinicdidianttiidiinaens 19

Meadows v. Ford Motor Co., 510 F.2d 939 (6th Cir.

1975), cert. denied, —— U.S. ——, 96 S.Ct. 2215

TUTTI Thichihbchcendeinddastaaehteeeh bathe alasptaaticaasttincienegimeinn 20

Mims v. Wilson, 514 F.2d 106 (5th Cir, 1975) -.............. 19, 20

Pettway v. American Cast Iron Pipe Co., 494 F.2d 211

Ss CI Wicthiteineteinieniiciintinpitttcianneceincntnii 16, 19, 20

Rogers v. International Paper Co., 526 F.2d 722 (8th

Cir.), on remand from the Supreme Court, 423 U.S.

809 (1975) .............-

PAGE

United States v. Hazelwood School District, 534 F.2d

805 (8th Cir.), petition for cert. filed, 45 U.S.L.W.

SEND (COB. Bet, GE, BOGE ensssesssioneeenamenais 20

United States v. United States Steel Corp., 520 F.2d

1043 (5th Cir. 1975), cert. denied, —— U.S. ——, 97

BG. GE CRI TIED censacesescnresccssininnnsentisinennineinaaasaasia 15, 19, 20, 22

United Transportation Workers, Local 974 v. Norfolk

& Western Ry., 532 F.2d 336 (4th Cir. 1975), cert.

denied, U.S. ——, 96 S.Ct. 1664 (1976) ........ 15, 19, 20

Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir.),

cert, denied, ——- U.S. ——, 97 S.Ct. 163 (1976) ........ 15, 19

Statutes:

33 U.S.C. SIRES) Cl 06) .ncccnsecteenen 4

_ 42 U.S.C. §2000e et seg. (Title VII of the Civil Rights

Act of 1964) ane senttannindie 4

42 U.S.C. §2000e-5(f) (3) .................- vintibsiieiadiaiiai aa 4

42 U.S.C. $2000e-5(g) csiehiaieiietiaaneaaiie 3

Other Authorities:

LIS Comm, Ben, TRGB CRBGED ecnceresceninsentnsnnsmsiinismeteaiaal 21-22

U.S. Bureau or Lazpor Sratistics, HaAnpBOoK or LaBor

Statistics—1975; RererENce EDIrion .........-.----.-0--.----- 12

U.S. Bureau or Lazpor Statistics Bunt. No. 1370-11,

EMPLOYMENT AND EarNINGS—STATES AND AREAS

6!) | ae 6

U.S. Civit Ricuts Commission, THe CHALLENGE AHEAD

—EgquaLt Opportunity in RererraL Unions (May

| | ere Tene 12

Vor. 122 No. 11 U.S.B.L.S. Employment anp Earninos

—Srates anp Angas (Supp., May 1976) —

In THE

Supreme Court of the United States

Ocrosper Term, 1976

No. --....----

—_

Georce Rios, et al.,

Petitioners,

-—vV -—_

ENTERPRISE ASSOCIATION STEAMFITTERS,

Locat No. 638 or U. A., et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioners George Rios, Eugene Jenkins, Eric Lewis,

Wylie Rutledge and the members of the classes they repre-

sent pray that a writ of certiorari issue to review the judg-

ment of the United States Court of Appeals for the Second

Cireuit entered in this case on September 7, 1976.

Citations to Opinions Below

The opinion on back pay rendered by the United States

District Court for the Southern District of New York is

reported at 400 F.Supp. 988 and is reprinted in the Appen-

dix to this petition at pp. 1-8. The opinion of the United

States Court of Appeals for the Second Circuit affirming

in part and reversing in part the district court’s back pay

opinion is not yet reported and is reprinted in the Appen-

dix at pp. 9-33. The opinion on the merits after trial is

reported at 360 F.Supp. 979 and is reprinted in the Appen-

dix at pp. 34-68. The opinion of the United States Court of

Appeals for the Second Circuit affirming and remanding the

trial opinion is reported at 501 F.2d 622 and is reprinted in

the Appendix at pp. 82-113.’

Jurisdiction

The judgment of the Court of Appeals for the Second Cir-

cuit was entered on September 7, 1976 and this petition for

certiorari has been filed within 90 days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C. §1254(1).

Question Presented

Whether the lower court erred in denying back pay to

those members of the plaintiff class who were discrimina-

torily denied access to employment opportunities as ap-

prentices in violation of Title VII of the Civil Rights Act of

1964, as amended, on the grounds that, in the court’s opin-

ion, respondents acted without purposefully bad motive and

the victim’s claims are speculative.

? Additional collateral opinions and orders in this case and the

corresponding government action, to which reference is made in

this petition, are also reproduced in the appendix.

Statutory Provision Involved

42 U.S.C. §2000e-5(g) :

If the court finds that the respondent has intention-

ally engaged in or is intentionally engaging in an un-

lawful employment practice charged in the complaint,

the court may enjoin the respondent from engaging

in such unlawful employment practice, and order such

affirmative action as may be appropriate, which may

include, but is not limited to, reinstatement or hiring

of employees, with or without back pay (payable by

the employer, employment agency, or labor organiza-

tion, as the case may be, responsible for the unlawful

employment practice), or any other equitable relief as

the court deems appropriate. Back pay liability shall

not accrue from a date more than two years prior to

the filing of a charge with the Commission. Interim

earnings or amounts earnable with reasonable dili-

gence by the person or persons discriminated against

shall operate to reduce the back pay otherwise allow-

able. No order of the court shall require the admis-

sion or reinstatement of an individual as a member of

a union, or the hiring, reinstatement, or promotion of

an individual as an employee, or the payment to him

of any back pay, if such individual was refused ad-

mission, suspended, or expelled, or was refused em-

ployment or advancement or was suspended or dis-

charged for any reason other than discrimination on

account of race, color, religion, sex, or national origin

or in violation of section 2000e-3(a) of tiiis Title. (As

Amended)

Statement of the Case

Petitioners seek review of a judgment of the United States

Court of Appeals for the Second Circuit affirming an order

(hereafter “back pay order”) of the United States District

Court for the Southern District of New York which denied

back pay to those members of the plaintiff class who were

denied employment in an apprenticeship program adminis-

tered by respondents. The program was found to have un-

lawfully discriminated against this class on the basis of

race and national origin in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §2000e et seg. (“Title

VIl”). Additionally, petitioners seek review of the court

of appeals’ judgment to the extent that it may absolve all re-

spondents from back pay liability to those discriminated

against by the program.

On February 26, 1971, petitioners filed this class action

alleging employment discrimination in violation of Title

VII and other provisions of federal law by respondents

Enterprise Association Steamfitters, Local 638 of the U. A.

(the “Union”), the Mechanical Contractors Association of

New York, Inc. (“MCA”) and the Joint Steamfitting Ap-

prenticeship Committee of the Steamfitters Industry Educa-

tion Fund (“JAC”). The district court’s jurisdiction was

based upon 42 U.S.C. §2000e-5(f) (3) and 28 U.S.C. §1343(3)

and (4).

Following opinions and orders granting preliminary re-

lief (App. 114-127)? and class action status (App. 128-133)

2 References to relevant opinions below, all of which are repro-

duced in the Appendix to this petition, are noted “App. :"

References to the appendix filed below are noted “A ——,” which

is a reference to the Joint Appendix submitted by the parties to

this case was consolidated with a suit filed on June 29, 1971

by the United States against the Union and JAC.’ Trial

was held before the Honorable Dudley B. Bonsal, United

States District Judge, from January 15 through January

26, 1973. On June 21, 1973, Judge Bonsal entered

an Opinion finding unlawful discrimination (“Trial Opin-

ion”) (App. 34-68) and an Order and Judgment (App. 69-

81) prohibiting further discrimination by the three defen-

dants and requiring affirmative relief to correct the effects

ot past discrimination. The issue of back pay was re-

served for later decision. None of the defendants below

took appeal from the district court’s findings of discrimina-

tion. However, an appeal was taken from the relief ordered

by the District Judge, which was affirmed in all respects

(App. 82-113) except that the case was remanded for the

limited purpose “of reestablishing the percentage goals

upon the basis of relevant statistical data.” (App. 84).

In the district court it was shown that black and

Spanish-surnamed persons were systematically denied un-

ion membership, training and employment in the steam-

fitting industry during the “boom years” * for the construc-

the court of appeals. References to certain documents appearing

in the record below but not in the Joint Appendix are in the form

of “Doc. ——” if from the Rios case and “2877 Doc. ——” if

from the corresponding United States case. The document num-

bers cited correspond to the document numbers assigned in the

Index to the Record on Appeal presented to the court of appeals.

*The United States case had originally been filed against a

number of New York City construction unions, apprenticeship

committees and employers’ associations. The district court also

granted preliminary relief in the United States case (App. 134-

144) which provided for the admission of 169 non-whites to the

Union. Thereafter, the United States case against the Union and

JAC was severed from the United States case against the other

defendants, and in turn consolidated with the Rios case for trial

before Judge Bonsal.

*An examination of the employment levels in the construction

industry in New York City for each year from 1969 through 1975

tion industry in New York City. As a :onsequence, while

white workers monopolized the opportuiity to earn very

substantial incomes, non-whites who had the necessary skills

or wanted to learn these skills sustained an enormous loss

of wages. This occurred largely because the apprentice-

ship program was used to exclude non-whites from gaining

access to employment in this industry.

Unlawful discrimination was found in nearly all aspects

of the industry. The district court found that the Union

“in the past and continuing to the present, has engaged in

a pattern and practice of discrimination against nonwhites

in admission to (its journeyman) A Branch” (App. 52),

the members of which enjoyed the highest paying and most

secure jobs in the industry (App. 40).° In addition to the

discriminatory A Branch admissions practices, a history of

dise:imination was found in the apprenticeship program,

’ which is administered by the JAC, a joint labor-manage-

reveals that contract construction employment stood at 104,500

in 1969; 110,100 in 1970; 111,700 in 1971. After 1971 construc-

tion employment fell to 102,800 in 1972; rose slightly to 105,000

in 1973 and dropped precipitously again to 99,900 in 1974 and

to 77,900 in 1975. U.S. Bureau or Lasor Statistics Buu. No.

1370-11, EmpLoyMENT AND Earnincs—StTaTes AND AREAS (1939-

1974), p. 500 and Vou. 122 No. 11 U.S.B.L.S. EMpLoyMenT AnD

EARNINGS—STATES AND AREAS, p. 130 (Supp., May, 1976). Thus,

the best years of employment in this industry occurred while this

lawsuit was pending, final judgment not having been rendered

until June 21, 1973. Although preliminary relief in this case was

granted those with journeyman skills, relief for apprentice appli-

cants did not come until after trial.

5 A word of mouth hiring system gave A branch members, almost

invariably whites, advantages in obtaining employment (App. 54).

Non-whites were limited to obtaining A branch membership

through the apprenticeship program, which was itself discrimina-

tory, while numerous whites gained direct admisssion to the A

branch without passing an examination or completing the appren-

ticeship program (App. 42, 45, 50).

- oe’

ment committee of eight members, who acted as represen-

tatives of the Union and MCA.°

At the time of trial, the apprenticeship program was a

five year program,’ consisting of 9100 hours of fully paid

employment as apprentice steamfitters and 720 hours of

classroom training for most of which apprentices were paid

a salary.®

The first apprenticeship class was formed in 1947, but

until 1964 there were no non-whites in the program (App.

45-46) ; and discrimination continued from 1964 until the

trial in 1973.° The apprenticeship program was virtually

*It is petitioners’ contention that the Union

by virtue of their control of the JAC and the Se -

gram, jointly liable with the JAC for the discriminatory opera-

tion of the program. As a result of the holdings below that

members of the class were not entitled to back pay, this question

. roy was y pA ryee The evidence of control of the JAC

yy the Union an ‘A is extensive and wi i i i

padiion, (ee p. tao) ill not be recited in this

"The duration of the program was subse tl .

district court to four years (App. 60, aaa y reduced by the

* The district court found:

Apprentices are paid a percentage of a journeyman’s wages ac-

cording to the following schedule: . ene 7 i.

Ist year 40% of journeyman w

2nd year 50% of sane sear be

3rd year 60% of journeyman wages

4th year 70% of journeyman wages

Sth year 85% of journeyman wages

In addition, apprentices receive fringe benefits. The collective bar-

gaining agreement also requires contractors to pay apprentices for

five - ape poet ys which apprentices attend once every

week, with some members of MCA voluntaril i i

for the full 7-hour work day (App. 45). ee

® The district court found:

Since 1964, 492 apprentices have begun training, of whom 464

(94.3%) were white, 23 (4.6%) were black, and 5 (1.01%)

the only non-litigious route by which non-whites gained

entry into this industry (App. 50-51); yet at the time of

trial, non-white participation was negligible. For whites,

on the other hand, participation in the apprenticeship pro-

gram was not a prerequisite to becoming a journeyman

steamfitter; and in fact, the district court found that as

of July 19, 1971 less than 25% of the total membership

of the A-Branch (at the time of trial) had been at some

time enrolled in the program (App. 45). Additionally, be-

tween January 1, 1972 and January, 1973 “156 whites

were admitted to the A-Branch without completing the ap-

prenticeship program ...” (App. 50).

The primary selection device utilized by the JAC from

1964 to 1971 in screening applicants for the program was

a written examination, which the district court found to be

discriminatory and in violation of Title VIT (App. 57-58)."°

Subsequent to the court of appeals’ affirmance of the af-

firmative relief, on June 27, 1975, the district court rendered

the back pay opinion at issue in this petition (App. 1-8).

The District Judge held only the defendant Union liable for

back pay, and held it liable only to non-whites who had

the skills of journeyman steamfitters and who could meet

were Spanish-surnamed. In 1971 (when the last apprentice

class was formed), nonwhites constituted approximately 3.9%

of the total number of participants in tne apprenticeship pro-

gram. Population statistics from the 1970 census indicate that

nonwhites constitute approximately 25.09% to 30.06% of the

total population of New York City and Nassau and Suffolk

Counties. (App. 56-57).

‘© This finding was based upon the examination’s differential

impact on non-whites coupled with the JAC's failure to prove the

examination valid or job-related (App. 57-58).

certain court imposed qualifications (App. 3). However,

the district court denied all back pay in connection with the

apprenticeship program. As a result,

1. persons denied admission to th> apprenticeship pro-

gram and employment opportunities as apprentices by the

operation of an unlawfully discriminatory test were held

ineligible for back pay; and

2. as a consequence the JAC, which adopted and used

this test, and the Union and MCA which controlled the

JAC, were not held liable for back pay.

The court of appeals affirmed the district court’s denial

of back pay in connection with the apprenticeship program.

In so doing, the author of the opinion for the court of

appeals wrote,

The writer of this opinion would apply the same

principles [those applied to journeymen] to those who

were victims of discrimination in the apprenticeship

program. While their problems of proof might even

be greater, individuals should not be precluded from

establishing loss of pay by appropriate proof where,

as here, admission to the program by test was not job-

related. The JAC has kept a record of all persons

who applied for the apprenticeship program, and the

results obtained by those who took the written test.

The writer fails to perceive any reason to distinguish

the situation of nonwhites who were discriminatorily

denied apprenticeship, or who became indentured ap-

prentices, but who lost wages as a result of illegal

employment discrimination, from the situation of non-

white journeymen who lost wages for the same reason.

See Pettway v. American Cast Iron Pipe Co., supra,

494 F.2d at 258-59 (persons denied admission to ap-

prenticeship program eligible for back pay). I would

read the language of Sheet Metal Workers, supra,

[EEOC v. Local 638 . . . Local 28, 532 F.2d 821 (2d

Cir. 1976)] to apply to individuals seeking backpay as

a result of discrimination in the apprenticeship pro-

gram.

My brothers Mansfield and Gurfein, however, feel

quite otherwise. They believe it to be within the proper

exercise of the conceded discretion of the district court,

Albemarle, supra, 422 U.S. at 421-23, to deny as hypo-

thetical any backpay in connection with the apprentice-

ship program, at least where, as here, there was no

purposefully bad motive. In their view, even though

would-be nonwhite apprentices were victims of diserim-

ination by the JAC, their injury is too remote, and

any damages suffered by them altogether too specula-

tive in the sense of the problem of proof, to permit

an award. In this regard my brothers point out that

an applicant would have to prove the following essen-

tial elements to recover:

That if nondiscriminatory tests for admission to the

program had been formulated and administered (which

of course, never occurred), the applicant would have

passed them;

That he would have progressed satisfactorily through

the three- or four-year program to graduation; and

That he would then have obtained employment as

a steamfitter.

My brothers emphasize the Supreme Court’s recog-

nition in Albemarle that “the trial court will often have

the keener appreciation of those facts and circum-

stances peculiar to particular cases.” Jd. at 421-22.

This language, they point out, clearly leaves room for

district court discretion, the exercise of which was not

abused in this instance, where difficult problems of

proof in any event are presented. (App. 20-21).

Reasons for Granting the Writ

The Court of Appeals’ Decision Conflicts With Title

VII of the Civil Rights Act of 1964, and With the

Applicable Decisions of This Court and the Circuit

Courts, and If Permitted to Stand Will Adversely Affect

Numerous Victims of Employment Discrimination.

The majority decision of the court of appeals is in clear

conflict with the applicable decisions of this Court and

those of other circuits. To the extent that the decision

accepts respondents’ purported good faith, or lack of “pur-

posefully bad motive,” as a basis for denial of. relief, the

decision is plainly contrary to the holding in Albemarle

Paper Co. v. Moody, 422 U.S. 405 (1975), not to mention

numerous decisions of other circuits (A, infra). The ma-

jority’s wholesale denial of relief on the assumption that

the claims of persons discriminatorily denied apprentice

employment are “hypothetical” is equally erroneous, as it

was based on a view of the burden of proof which has been

rejected by this Court and other circuit courts (B, infra).

Moreover, the court of appeals denied identifiable members

of the class an opportunity to meet even the erroneous bur-

den of proof which it adopted, a result which also conflicts

with this Court’s decision in Moody (C, infra).

The decision below would critically undermine the effi-

cacy of the back pay remedy under Title VII. In severely

limiting the ability of aggrieved individuals to assert back

pay claims, the court of appeals found barriers applicable

not only to apprentices," but also to employment positions

at virtually all levels. Nothing in the nature of cireum-

stances of apprenticeship distinguishes it in any relevant

respect from any other employment for the purpose of

assessing wage losses. Although the apprentice is expected

to acquire certain knowledge and skills and ultimately to

qualify as a journeyman, the apprentice is no less an em-

ployee than workers in less formalized situations who are

expected or given the opportunity to acquire skills in order

to move to higher positions. Upon acceptance into the

program, an apprentice is referred to employment and re-

ceives wages and benefits in accordance with the coilective

bargaining agreement.”

Apprenticeship programs account for many hundreds of

thousands of jobs in the United States. Bureau of Labor Statis-

tics’ figures indicate that at the end of 1973 there were 283,774

apprentices in training. Bureau or Lasor Statistics, HANDBOOK

or Lapor Statistics—1975, RerereNnce Epirion, table 55 at 141.

Moreover, the United States Civil Rights Commission has found

that “deliberate and overt employment discrimination by building

trades unions continues,’ and that such discrimination is fur-

thered by union practices in “apprenticeship requirements.” U. S.

Crvm Ricuts Commission, THE CHALLENGE AHEAD—iEQuaL Op-

PORTUNITY IN RererraL Unions, 232-233 (May, 1976).

'2 See footnote 8, supra.

Indeed, the conclusion of the majority of the court of

appeals that the claims in connection with apprenticeship

are “hypothetical” is not based on any explicated distine-

tion between apprenticeship and other employment. It

rests solely on a misallocation of the burden of proof,

which, if correct, would be equally applicable mutatis

mutandis to any hiring or promotion situation. The ra-

tionale adopted by the majority for denial of back pay

relief is by its very nature susceptible of general ap-

plication. If allowed to stand, the decision will preclude not

only persons discriminated against in apprenticeship pro-

grams but innumerable others from a remedy which this

Court has held “should be denied only for reasons which,

if applied generally, would not frustrate the central statu-

tory purposes of eradicating discrimination throughout

the economy and making persons whole for injuries suf-

fered through past discrimination.” Albemarle Paper

Company v. Moody, supra, 422 U.S. at 421 (footnote

omitted).

A. The Denial of Back Pay on the Basis of

Good Faith Conflicts With the Controlling

Decision of This Court

The district court denied back pay on the grounds that

(1) damages suffered by applicants for apprenticeship were

“speculative,” and (2) considerations of “good faith” * on

the part of defendants weighed against the award. The

court of appeals affirmed on the ground that it was within

the district court’s discretion “to deny as hypothetical any

backpay in connection with the apprenticeship program, at

least where, as here, these was no purposefully mad motive.”

(App. 20-21).

In giving weight to purported “good faith” or absence

of “purposefully bad motive” as a basis for denial of back

pay, as both lower courts clearly did, the decisions are

directly contrary to this Court’s ruling in Albemarle Paper

Co. v. Moody, 422 U.S. 405 (1975), which squarely rejected

a defense based upon the absence of bad faith:

If backpay were awardable only upon a showing of

bad faith, the remedy would become a punishment

for moral turpitude, rather than a compensation for

workers’ injuries. This would read the ‘make whole’

purpose right out of Title VII, for a worker’s injury

is no less real simply because his employer did not

18 Although unnecessary to consideration of the issue presented,

the district court’s finding of good faith was highly dubious. For

example, while the court found good faith in respondent JAC’s re-

liance on expert opinion in institution of the written admission tests

(App. 4), the expert had in fact warned the JAC of the likely

discriminatory impact of the test and its lack of validation (A-404).

The record is replete with further evidence, which may account

for the-court of appeals’ recharacterization of the matter as a lack

of I. uaa bad motive,” although this finding is also ques-

tionable.

inflict it in ‘bad faith.’ Title VII is not concerned with

the employer’s ‘good intent or absence of discrimina-

tory intent’ for ‘Congress directed the thrust of the

Act to the consequences of employment practices, not

simply the motivation.’ Griggs v. Duke Power Co.,

supra, 401 U.S. at 432.

422 U.S. at 422-23 (footnote omitted) (emphasis original)

Thus, the decision of the court of appeals is irreconcilable

with the settled law on this issue.

B. In Finding the Back Pay Claims to Be Hypothetical,

The Court of Appeals Adopted an Allocation of the

Burden Proof Which Is in Conflict With the Appli-

cable Decision of This Court and Those of the Cir-

cuit Courts

Nothing in the nature of apprenticeship makes an appli-

eant’s claim for losses due to discrimination any more

“hypothetical” than that of any other applicant for employ-

ment.” Judge Oakes, dissenting from the decision below,

recognized this:

** Lower courts having occasion to consider the back pay issue

subsequent to Moody have understandably refused to allow good

faith or motive to affect liability. Watkins v. Scott Paper Co.,

530 F.2d 1159 (5th Cir.), cert. denied, —— U.S, ——, 97 S. Ct.

163 (1976) : United Stales v. United States Steel Corp., 520 F.2d

1043, 1053 (5th Cir. 1975), cert. denied, —— U.S. ——, 97 S. Ct.

61 (1976); United Transportation Workers Local 974 v. Norfolk

& Western Ry., 532 F.2d 336, 340 (4th Cir. 1975), cert. denied,

— US. ——, 96 S. Ct. 1664 (1976) ; ef. Rogers v. International

Paper Co., 526 F.2d 722 (8th Cir.), on remand from the Supreme

Court, 423 U.S. 809 (1975).

** Indeed, back pay for those discriminated against by ap-

prenticeship programs has een awarded routinely. See, ¢g., Pett-

way Vv. American Cast Iron Pipe Co., 494 F.2d 211, 258-59 (5th Cir.

The writer fails to perceive any reason to distinguish

the situation of nonwhites who were discriminatorily

denied apprenticeship, or who became indentured ap-

prentices, but who lost wages as a reuslt of illegal

employment discrimination, from the situation of non-

white journeymen who lost wages for the same reason.

See Pettway v. American Cast Iron Pipe Co., supra,

494 F.2d at 258-59 (persons denied admission to ap-

prenticeship program eligible for backpay). I would

read the language of Sheet Metal Workers, supra

[EEOC v. Local 638 .. . Local 28, 532 F.2d 821 (2d

Cir. 1976)], to apply to individuals seeking backpay

as a result of discrimination in the apprenticeship

program.

(App. 20).

The two other members of the panel, however, affirmed

the denial of back pay as “hypothetical . . . too speculative

in the sense of the problem of proof to permit an award”

(App. 21), on the basis of the view that:

1974); EEOC v. Local 638 .. . Local 28, 532 F.2d 821, 832 (2d

Cir. 1976). :

Caleulation of back pay losses for apprentice applicants in this

ease can be easily accomplished. The JAC has a record of all

persons who applied and the results obtained by those who took

the written tests (Doc. 24, Appendix A). The district court's de-

cision, to the extent that it affords an opportunity to some journey-

man members of the class to prove their back pay claims, properly

contemplates that monetary losses be computed on the basis of the

average wages of white members of the A branch during the

relevant period (App. 8). There is no reason to distinguish the

situation of non-whites who were discriminatorily denied appren-

ticeship or indentured apprentices who lost wages as a result of

illegal employment discrimination from the situation of non-white

journeymen who lost wages for the same reason. See /ettway v.

American Cast Iron Pipe Co., supra, 494 F.2d at 258-59.

. an applicant would have to prove the following

essential elements to recover:

That if nondiscriminatory tests for admission to the

program had been formulated and administered (which,

of course, never occurred), the applicant would have

passed them;

That he would have progressed satisfactorily through

the three- or four-year program to graduation; and

That he would then have obtained employment as a

steamfitter.

(App. 21).

The first of these elements conflicts with Griggs v. Duke

Power Co., 401 U.S. 424 (1971), by requiring proof not

only of the discriminatory impact of a test and its lack

of job-relatedness, but also proof that the applicant would

have passed a non-discriminatory test.** And as a practical

matter, acceptance of the first element would preclude all

victims of discriminatory tests from receiving back pay ex-

cept in the rare instance in which a non-discriminatory test

is in effect when back pay claims are heard. The second

*® Not only has the burden been misallocated, it has been errone-

ously magnified. The would-be apprentice is saddled with a double

burden by the court of appeals’ decision. First he must show, as

all members of the class have already done, that the test was dis-

criminatory under the principles of Griggs v. Duke Power Com-

pany, 401 U.S. 424 (1971). Then, to obtain back pay, he must

additionally show that the test was discriminatory as to him be-

eause he could have passed a non-discriminatory test. Since this

second showing need not be made under Griggs, the court of ap-

peals decision disregards the recognized burden of proof on the

issue. While Griggs dealt with the elements of proof required to

enjoin the use of an unlawfully discriminatory test, this Court

held in Albemarle Paper Co. v. Moody, 422 U.S. 405, 423 (1975),

that there should be no “categorical distinctions” made between

the injunctive and back pay remedies of Title VII.

and third elements reflect an evident and erroneous assump-

tion that apprenticeship is not employment and that wage

losses result only at the point when the apprentice would

have qualified as a journeyman. These elements of proof

place on the members of a class who have already proven

discrimination the additional burden of establishing their

job performance, progression and employability but for the

discrimination.

This Court spoke to this precise issue in Franks v. Bow-

man Transportation Company, —— US. , 96 S.Ct.

1251 (1976). There, in speaking of the burden a claimant

must carry in order to sustain a claim for back seniority

under Title VII, it was noted,

It is true of course that obtaining the third category

of evidence ith which the District Court was concerned

—what the individual discriminatee’s job performance

would have been but for the discrimination—presenis

great difficulty. No reason appears, however, uhy

the victim rather than the perpetrator of the illegal

act should bear the burden of proof on this issue.

— U.S. at ——, 96 S.Ct. at 1268, n.32

(emphasis added).

Therefore once a class has shown a discriminatory denial

of employment opportunities, the burden falls upon the dis-

criminators to show that proven class members are indi-

vidually ineligible for relief.

Accordingly, and in contrast to the court of appeals de-

cision herein, other circuits which have considered the in-

dividual’s burden of proof after discrimination against the

class has been proven require the individual to prove his

perenne peeenettin lena

membership in the class and the losses suffered.” In the

instant case, the correct elemenfs would require proof that

the individual applied for the apprenticeship program, took

and failed the discriminatory tests, was thereby excluded

from the program, and consequently had less earnings in

the interim than apprentices.** Once such a showing is

made, any reason for denial of back pay to any class mem-

ber should be the burden of the discriminating party. This

is the position of all other circuits which have considered

the matter. Thus, other circuits hold that “[o]nce it has

been shown ... that an employer was discriminating against

_ a class of employees, the employer must shoulder the bur-

den of persuasion to show that a particular employee was

unqualified for a position in an all-white line of progres-

sion.” Watkins v. Scott Paper Company, 530 F.2d 1159,

1177 (5th Cir.), cert. denied, —— U.S. ——, 97 S.Ct. 163

(1976). Accord: Day v. Matthews, 530 F.2d 1083, 1085,

1086 (D.C. Cir. 1976) (After a showing of discrimination,

back pay can only be denied upon employer’s proof “by

clear and convincing evidence . . . that the employee .. .

would not have gotten the post in any event,” and that the

** See Pettway v. American Cast Iron Pipe Co., 494 F.2d 211

259-260 (5th Cir. 1974) relying upon p> eke Goodyear Tire &

Rubber Co., 491 F.2d 1364, 1379 (5th Cir. 1974) ; Mims v. Wilson,

514 F.2d 106, 110 (5th Cir. 1975); United Transportation Union

Local 974 v. Norfolk & Western Ry., 532 F.2d 336, 341 (4th Cir.

1975), cert. denied, ——— U.S. , 96 S.Ct. 1664 (1976) ; cf. Day

v. Matthews, 530 F.2d 1083, 1085-86 (D.C. Cir. 1976).

**For a discussion of how back pay computations can be made

once eligibility is proven in cases such as the one at bar, see

Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 260-63

(5th Cir. 1974); United States v. United States Steel Corp., 520

F.2d 1043, 1055-57 (5th Cir. 1975), cert. denied, —— U.S. —~—

YT S.Ct. G61 (1976).

employer must be “held to a strict showing,” with “any re-

sulting uncertainty [to] be resolved against the party whose

action gave rise to the problem.”); Mims v. Wilson, 514

F.2d 106, 110 (5th Cir. 1975); Pettway v. American Cast

Iron Pipe Company, supra, 494 F.2d at 259-60; United

Transportation Union Local 974 v. Norfolk d Western Ry,.,

532 F.2d 336, 341 (4th Cir. 1975), cert. denied, US.

—., 96 S.Ct. 1664 (1976) ; Ellison v. Rock Hill Printing &

Finishing Company, 64 F.R.D. 415, 418-19, n. 5 (D.S.C.

1974).*°

Thus, the holding below misallocates the burden of proof

and cannot be reconciled with the applicable decisions of

this Court and those of the circuits.

1” Similarly other circuits recognize that in computing back pay

“unrealistic exactitude is not required,” and uncertainties in the

computation” should be resolved against the discriminating em-

ployer.” Pettway v. American Cast Iron Pipe Co., 494 F.2d 211,

260-61 (5th Cir. 1974). Accord: Hairston v. McLean Trucking

Co., 520 F.2d 226, 232-33 (4th Cir. 1975) (court rejected em-

ployer’s defense that back pay claims were net capable of pre-

cise measurement, noting “the computation of individual awards

necessarily involves speculation”); Meadows v. Ford Motor Co.,

510 F.2d 939, 948 (6th Cir. 1975), cert. denied, —— U.S. ——,

96 S.Ct. 2215 (1976) (held that a policy prohibiting back pay

‘because of difficulty computing it “would encourage employers

who had the inclination to disregard this act to do so with im-

punity ... .”); United States v. United States Steel Corp., 520

V'.2d 1043, 1053 (5th Cir. 1975), cert. denied, —— U.S. ——, 97

S.Ct. 61 (1976) (held problems of individual proof not to preclude

discriminatees from asserting back pay claims “one-by-one.”) cf.

United States v. Hazelwood School District, 534 F.2d 805, 820-21,

n. 11 (8th Cir.), petition for cert. filed, 45 U.S.L.W. 3210 (U.S.

Sept. 23, 1976) (district court instructed by Court of Appeals to

undertake individual determination of back pay claims of rejected

applicants).

C. The Denial to Members of the Class of Any

Opportunity to Prove Back Pay Claims Conflicts

With the Principles of the Applicable Decision of

This Court and Those of the Circuit Courts

Having incorrectly allocated the burden of proof, the

court of appeals compounded its error by foreclosing class

members from the opportunity to carry this burden. The

erroneous result, as in Moody,” is that the back pay ques-

tion is automatically resolved against a whole class of in-

jured persons, some of whom could no doubt carry even the

erroneous burden posited below.

If the lower court’s reasons for complete denial of relief

to this segment of the class were applied generally, there

can be no doubt that the result would “frustrate the central

statutory purposes” of Title VII. 422 U.S. at 421. That

statutory purpose was clearly set forth by a Conference

Committee of the Senate and House in 1972:

The provisions of this subsection [706(g)] are in.

tended to give the courts wide discretion exercising

their equitable powers to fashion the most complete

relief possible. In dealing with the present section

706(g) the courts have stressed that the scope of relief

under that section of the Act is intended to make the

victims of unlawful discrimination whole, and that the

attainment of this objective rests not only upon the

elimination of the particular unlawful employment

practice complained of, but also requires that persons

aggrieved by the consequences and effects of the unlaw-

2° As this Court noted in Moody,

Though at least some of the members of the plaintiff class

obviously suffered a loss of wage opportunities on account of

Albemarle’s unlawfully discriminatory system of job seniority

the District Court decided that no backpay should be awarded

to anyone in the class. 422 U.S. at 413 (emphasis original).

ful employment practice be, so far as possible, restored

to a position where they would have been were tt not

for the unlawful discrimination. 118 Cong. Rec. 7168

(1972). (emphasis added)

Therefore the exclusion of a whole class of proven vic-

tims of discrimination from any opportunity whatever to

prove back pay claims on the grounds of good faith or

speculativeness conflicts with the purpose of Title VII,

and with Moody. It is also irreconcilable with the decisions

of other circuits. As the Fifth Circuit has held, members of

a class against which discrimination has been shown are

entitled to an opportunity, “one-by-one, to present personal

claims for back pay.” United States v. United States Steel

Corp., 520 F.2d 1043, 1053 (5th Cir. 1975), cert. denied,

U.S. ——, 97 S.Ct. 61 (1976).

Il.

The Lower Court Erred in Failing to Hold the JAC,

the Union and MCA Liable for Back Pay.

The question of back pay in connection with the appren-

ticeship program, if resolved in favor of the members of

the class unlawfully denied apprentice employment, neces-

sarily carries with it the issue of the liability of the various

respondents. The Union, JAC and MCA are jointly liable

for discrimination in the apprenticeship program, a factual

question on which there is a full record but which neither

lower court had occasion to reach.” Petitioners recognize

21 The court of appeals’ holding that neither the MCA nor the

JAC were liable for losses suffered by non-whites with journey-

man skills who were unlawfully denied admission to the A Branch

of the Union (App. 22-25) should not be confused with the ques-

tion of liability for the apprenticeship program.

that should the writ be granted and the judgment below be

reversed as to entitlement of the members of the class to

establish their claims for back pay, the issue of liability

of the various respondents could also be determined by the

lower court upon remand.

CONCLUSION

For the foregoing reasons the Court should grant a Writ

of Certiorari to review the judgment and opinion of the

court of appeals.

Respectfully submitted,

JONATHAN LanG

Rosert P. Roperts

National Employment Law Project, Ine.

423 West 118 Street

New York, New York 10027

(212) 866-8591

Turo, Jonnston & ALLEGAERT

Dennis R. Yeacer, Of Cownsel

645 Madison Avenue

New York, New York 10022

(212) 752-8668

APPENDIX

App. 1

Opinion of Bonsal, U.S.D.J.,

Dated June 27, 1975

UNITED STATES DISTRICT COURT

SouTHERN District or New York

June 27, 1975.

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

—_>

GrorceE Rios et al.,

Plaintiffs,

ENTERPRISE ASSOCIATION STEAMFITTERS

Locat 638 or U.A. et al.,

Defendants.

—_>

EQUAL I-MPLOYMEN T OprorTUN ITY CoMMISSION ;

Plaintiff,

Vv.

ENTERPRISE ASSOCIATION STEAMFITTERS

Loca 638 or U.A. et al.,

Defendants.

Bonsa., District Judge.

The plaintiffs in Rios v. Enterprise Association Steam-

fitters Local 638 of U.A., 400 F.Supp. 983, move for back pay

for members of the plaintiff classes.

App. 2

This motion arises from a protracted litigation under

Title VII of the Civil Rights Act of 1964, as amended. See

Rios v. Enterprise Association Steamfitters, Local 638 of

U.A., 400 F.Supp. 981 (S.D.N.Y.1975); United States v.

Local 638, Enterprise Association of Steam, etc., 360 F.

Supp. 979 (S.D.N.Y.1973), aff'd but remanded in part,

501 F.2d 622 (2d Cir. 1974); United States v. Local 638,

etc., 337 F.Supp. 217 (S.D.N.Y.1972); Rios v. Enterprise

Association Steamfitters Local Union No. 638 of U.A., 326

F.Supp. 198 (8.D.N.Y.1971); Rios v. Enterprise Associa-

tion Steamfitters Local Union #638 of U.A., 54 F.R.D. 234

(S.D.N.Y.1971).

Plaintiffs seek an award of back pay for the members of

the class they represent.’ Specifically, plaintiffs seek back

pay for (1) non-white A Branch? members who, though

qualified were denied jobs as a result of the discriminatory

work referral practices fostered by defendants; (2) non-

white members of the B Branch who were not admitted to

1 The classes are defined as: (a) “all Negro and Spanish Sur-

named Americans residing in New York City and the Counties of

Suffolk and Nassau in the State of New York now or at any time

in the future who have the skills necessary to work as journeymen

steamfitters” and (b) “all Negro and Spanish Sur-named Ameri-

cans residing in New York City and the Counties of Suffolk and

Nassau in the State of New York now or at any time in the future

who are capable of learning such skills and who wish to obtain

access to steamfitting work in New York City and said Counties.”

Rios v. Enterprise Association Steamfitters Local Union #638 of

U.A., 54 F.R.D, 234, 237 (S.D.N.Y.1971) (Tenney, J.).

* A Branch members of Local 638 do mainly construction work,

have greater job security, earn higher hourly pay and have greater

opportunity for advancement than the members of the B Branch

of Locai 638, whose members work in shops and do repair work.

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, i. e., New York County, The Bronx, Kings, Queens, Rich-

mond, Nassau and Suffolk counties. United States v. Local 638, etc.,

360 F.Supp. at 984-85.

App. 3

the A Branch; (3) other persons qualified to be A Branch

members who were either denied membership in the A

Branch or were discouraged from applying for membership

or from seeking employment in the steamfitting industry;

(4) persons who, with on-the-job training, were capable of

learning the skills necessary to be a journeyman steamfitter ;

and (5) unskilled persons who were denied admission to the

apprenticeship program, or who, once admitted, dropped

out, or who were deterred from applying to the apprentice-

ship program because of defendants’ discriminatory policies

and tests.

Plaintiff’s motion is granted to the extent that back pay

will be awarded to qualified members of the plaintiff class

who applied in writing for membership in the A Branch and

who were discriminatorily denied admission after October

15, 1968.*

Back pay for others for whoru it is sought will be denied

since (1) damages, if any, arisixg from alleged discrimina-

tory work referral practices are not ascertainable since Local

638 had no hiring hall and there are no accurate records of

job openings for the period involved ; (2) damages to persons

who did not make formal written application to the A

Branch are hypothetical; and (3) damages suffered as a

* See discussion of the applicable statute of limitations, infra.

United States v. Wood, Wire and Metal La/hers International Un-

ion, Local Union 46, 328 F.Supp. 429 (5.D.N.Y.1971), which

granted back pay to a broader group of plaintiffs than this Court

finds appropriate, is distinguishable. Wood, Wire involved a con-

tempt proceeding in connection with a Title VII action, which pro-

ceeding arose because the defendant union had repeatedly violated

the parties’ consent decree, and this procedural context was signif-

icant to the Court’s determination. Also, in Wood, Wire the union

continuously operated a hiring hall which was contemplated in

devising the consent decree and the back pay remedy for its viola-

tion. Finally, the period for which back pay was awarded was

less than nine months.

App. 4

result of the apprenticeship program are speculative, and

equitable considerations weigh against making these back

pay awards since the admission tests used by defendants

were registered with the United States and New York State

Departments of Labor and were adopted by defendants in

good faith on the recommendation of experts.

The Applicable Standard

Title VII provides in pertinent part:

“Tf the Court finds that the respondent has intentionally

engaged in... an unlawful employment practice . . .,

the court may enjoin the respondent . . . and order such

affirmative action as may be appropriate, which may

include . . . reinstatement or hiring of employees, with

or without back pay (payable by the [party] respon-

sible for the unlawful employment practice)... .” 42

U.S.C, § 2000e-5(g).

Thus, the statute grants wide discretion to award back

pay when warranted by the circumstances of the case and a

court must make such determinations on a case-by-case

basis. See, e. g., Albemarle Paper Co. v. Moody, 422 U.S.

405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) ; Kober v. Westing-

house Electric Corp., 480 F.2d 240 (3d Cir, 1973) ; Manning

v. International Union, 466 F.2d 812 (6th Cir. 1972), cert.

denied, 410 U.S. 946, 93 S.Ct. 1366, 35 L.Ed.2d 613 (1973) ;

Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002,

1006 (9th Cir. 1972); LeBlanc v. Southern Bell Telephone

€ Telegraph Co., 460 F.2d 1228 (5th Cir.), cert. denied, 409

U.S. 990, 93 S.Ct. 320, 34 L.Ed.2d 257 (1972). Cases which

hold that an award of back pay is required by Title VII

“anless special circumstances would render such an award

App. 5

unjust” also require a case-by-case analysis. See Pettway v.

American Cast Iron Pipe Co., 494 F.2d 211, 251-53 (5th Cir.

1974) ; Johnson v. Goodyear Tire & Rubber Co., 491 F.2d

1364, 1374-77 (5th Cir. 1974) ; Head v. Timken Roller Bear-

ing Co., 486 F.2d 870 (6th Cir. 1973); Bowe v. Colgate-

Palmolive Co., 416 F.2d 711 (7th Cir. 1969).

In making awards for back pay, all the circumstances of

the case, including ability to pay, must be taken into ac-

count. See Thornton v. East Texas Motor Freight, 497

F.2d 416, 421-422 (6th Cir. 1974) ; United States v. Georgia

Power Co., 474 F.2d 906, 919-22 (5th Cir. 1973). See also

Laffey v. Northwest Airlines, Inc., 374 F.Supp. 1382

(D.D.C.1974).

Local 638.—Local 638 was not an employer, nor was it

conducting a business for profit. Local 638 is an association

of workers united for their mutual protection, which is sup-

ported by dues and other assessments collected from its

members to cover expenses and, from time to time, to sup-

port a strike fund. Financial data submitted by Local 638

indicates that it has limited financial resources.

Back pay is compensation for “tangible economic loss” to

be paid by parties responsible for that loss (see, e.g., Jonn-

son v. Goodyear Tire & Rubber Co., supra at 1381-82; Rob-

inson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971); 42

U.S.C. § 2000e-5(g)). Since it was found at the trial that

Local 638 engaged in a pattern and practice of discrimina-

tion against members of the plaintiff class, it is liable to

provide back pay in cases of such discrimination. 360

F.Supp. at 989.

MCA.—Plaintiffs seek to have MCA share in the burden

of providing back pay. MCA, a trade association of certain

contractors in the New York area, acts only in collective

App. 6

bargaining negotiations between its members and Local

638. MCA does not employ steamfitters ; rather, employment

is done by its members. While MCA was found to have been

properly made a party defendent in the Rios action (360

F.Supp. at 994-95), that finding did not imply that MCA

was “responsible ipso facto for all the employment practices

here found unlawfully discriminatory or . . . liable in dain-

ages to the plaintiffs in Rios. Plaintiffs have shown no

specific instances of MCA discrimination. Rather, plaintiffs

have demonstrated only that there has been a lack of non-

white employment in the industry generally and that, in

consequence, the industry’s referral practices must be

changed.” Jd. at 995-96.

JAC.—JAC, a joint labor-management committee com-

posed of four members chosen by MCA and four members

chosen by Local 638, has conducted the steamfitters’ appren-

ticeship program throughout the years relevant to the ac-

tions at bar. However, JAC has “no” demonstrated respon-

sibility for direct admissions to the A Branch of Local 638

of persons already qualified as journeymen steamfitters.

Therefore, only Local 638 is liable for back pay.‘

Period of Back Pay

As to the period for which back pay may be recoverable,

Title VII does not provide a statute of limitations in ac-

tions such as the instant case which were determined by the

EEOC before March 24, 1972. However, on March 24, 1972,

* The decision herein is without prejudice to any claim a mem-

ber of the plaintiff class may have against an employer (see Albe-

marle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d

280 (1975). Neither MCA nor JAC is an employer, and no em-

ployers are parties to this action.

App. 7

Title VII was amended by Congress té provide that as to all

cases pending before the EEOC on that date or filed there-

after, back pay jiability accrues from a date no more than

two years prior to the filing of the charge with the EEOC.

Pub.L. 92-261, §) 4(a), 14, codified at 42 U.S.C. § 2000e-5(g).

While the case here was determined by the EEOC prior to

March 24, 1972, this amendment has a bearing on Congres-

sional intent as to the limitation to be imposed in granting

back pay awards, and will be applied here. A person entitled

to back pay may recover proven damages beginning on the

date the discrimination occurred or beginning on October

15, 1968, which is two years prior to the filing of the com-

plaint with EEOC by the Rios plaintiffs, whichever date is

later. See Laffey v. Northwest Airlines, Inc., supra at 1390.

The termination date for computation of back pay awards

is June 21, 1973, the date of this Court’s order granting a

permanent injunction. See Johnson v. Goodyear Tire &

Rubber Co., supra at 1379.

Plan for Awarding Back Pay

A claimant is entitled to compensation for wages lost if

he files his claim on or before December 31, 1975 and proves

the following:

(1) He applied in writing for membership in Local

638’s A Branch.

(2) He was discriminatorily denied admission to the

A Branch after October 15, 1968. Discrimination as to a

claimant for purposes of back pay will commence on the

date on which the next applicant for membership in the

A Branch who does not qualify as a member of the

plaintiff class was admitted to the A Branch, This dis-

App. 8

crimination for purposes of back pay awards will be

deemed to continue until the date claimant was ad-

mitted to the A Branch or until June 21, 1973, which-

ever is earlier.

(3) At the time of his application, the claimant re-

sided in a county within the jurisdiction of Local 638,

and was qualified for admission uhder the standards

used in the implementation of this Court’s Order of

June 21, 1973.

(4) The claimant proves monetary damages result-

ing from his denial of admission to the A Branch, less

any other employment income or public assistance.

Monetary damages will be computed on the basis of the

average monthly wage paid to members who were ad-

mitted to the A Branch on or after October 15, 1968.

Payment by Local 638 of back pay will be made after

determination of all claims. At that time, upon application

of Local 638, for good cause shown, the Court will review

the aggregate liability for back pay awards and its impact

on the financial] resources of the Union, and the Court may

in its discretion make a pro rata reduction of each claim-

ant’s award or provide for payments in installments.

The plaintiffs, the EEOC and Local 638 are invited to

suggest methods to efficiently administer this plan for mak-

ing back pay awards.

Settle order on notice.

Foy med

CORRECTED COPY

—

Say le,

< Le | PE

App. 9

Opinion and Judgment of the United States

Court of Appeals for the Second Circuit

Dated September 7, 1976

UNITED STATES COURT OF APPEALS

For THE SECOND CIRCUIT

OR ES eee

Nos. 976, 975, 1286-89—September Term, 1975.

(Argued June 16, 1976 Decided September 7, 1976).

Docket Nos. 75-6132, 75-6140, 75-7646,

75-7668, 75-6999, 76-7011

-———"

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.,

Appellants,

Vv.

ENTERPRISE ASSOCIATION STEAMFITTERS

Local No. 638 of U.A., et al.,

Appellees.

GEORGE Rios, et qi.,

Appellants

Vv.

ENTERPRISE ASSOCIATION STEAMFITTERS

Local No. 638 of U.A.., et al.,

Appellees.

——————_ oon

Before:

MANSFIELD, OAKES AND GURFEIN,

Circuit Judges

Cross appeals certified under 28 U.S.C. §1292(b) from

backpay and attorneys’ fees orders issued in an

employment discrimination case by the United States

District Court for the Southern District of New York,

Dudley B. Bonsal, Judge. The district court held the union

to be solely liable for backpay awarded to limited classes

App. 10

of private plaintiffs and attorneys’ fees to public interest

law firm.

Order as to backpay affirmed in part and reversed in

part; order as to attorneys’ fees affirmed.

Ce eel

Louis G. Corsi, Assistant United States

Attorney (Robert B. Fiske, Jr., United

States Attorney for the Southern District

of New York, Steven J. Glassman, Assistant

United States Attorney, Abner W. Sibal,

General Counsel, EEOC, Joseph T. Eddins,

Associate General Counsel, EEOC,

Beatrice Rosenberg, Attorney, EEOC of

counsel), for Appellant EEOC.

DENNIS R. YEAGER, National Employment Law

Project, Inc., New York, N.Y. (Marilyn P.

Walter and Robert P. Roberts, National

employment Law Project, Inc., Tufo,

Johnston & Allegaert, New York, N.Y., of

counsel), for Appellants Rios,et al.

RICHARD BROOK, Delson & Gordon, New York,

N.Y., for Appellee Local 638.

THOMAS A. SHAW, JR., Breed, Abbott &

Morgan, New York, N.Y. (Robert B.

Kuhback, Breed, Abbott & Morgan, New

York, N.Y., of counsel), for Appellee

Mechanical Contractors Association of

New York, Inc. a

A a

OAKES, Circuit Judge:

Cross appeals, challenging backpay and attorney’s fees

orders in a case involving unlawful discrimination in

App. 11

union membership and related employment, raise a

congeries of questions relating to remedial relief under

Title VII of the Civil Rights Act of 1964. The underlying

question of discrimination has been a matter of protracted

litigation,' with quite careful consideration given to the

issues by a district judge whose exercise of remedial

discretion? we are, needless to say, reluctant to reverse.

Separate actions brought by the Government and by

individual plaintiffs (“the Rios plaintiffs”) against

Enterprise Association Steamfitters Local 638 of U.A.

(hereinafter “Local 638” or “the union”), the Joint Steam-

fitters Apprenticeship Committee of the Steamfitters

Industry (JAC), and the Mechanical Contractors Associa-

tion of New York, Inc. (MCA), have been consolidated for

the trial below, and for these appeals. The orders ap-

pealed from were entered in the United States District

Court for the Southern District of New York by Dudley B.

Bonsal, Judge. See 400 F. Supp. 988 (S.D.N.Y. 1975)

(backpay); 400 F. Supp. 993 (S.D.N.Y. 1975) (attorneys’

fees). A previous order of the district court providing

injunctive relief has been separately reviewed in this

1. See Rios v. Enterprise Asa'n Steamfitters Local 638, 400 F. Supp. 983

(S.D.N.Y. 1975); United States v. Local 638, Enterprise Ass'n of Steam-

fitters, 360 F. Supp. 979 (S.D.N.Y. 1973), affd but remanded in part, 501

F.2d 622 (2d Cir. 1974); United States v. Local 638, 337 F. Supp. 217

(S.D.N.Y. 1972); Rios y. Enterprise Ass'n Steamfitters Local 638, 326 F.

Supp. 198 (S.D.N.Y. 1971); Rios v. Enterprise Ass'n Steam/fitters Local

638, 54 F.R.D. 234 (S.D.N.Y. 1971). See also Rios v. Enterprise Ass'n

Steamfitters Local 638, 520 F.2d 352 (2d Cir. 1975) (denying post

judgment intervention on part of certain B Branch members, note 4

infra).

2. A discretion which, however, must be “rheasured against the purposes

which inform Title VII.” including “the purpose ... to make persons

whole for injuries suffered on account of unlawful empleyment dis-

crimination.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 417, 418

(1975). The Albemarle Court would have the court of appeals “maintain a

consistent and principled application of the backpay provision consonent

with the twin statutory objectives [of eradicating discrimination and

making the victims of discrimination whole]... ” 422 U.S. at 421.

App. 12

court; the attorneys’ fees and backpay issues were re-

served at that time. United Statesv. Local 638, Enterprise

Association of Steamfitters, 360 F. Supp. 979 (S..).N.Y.

1973), affd but remanded in part, 501 F.2d 622 (2d Cir.

1974), modified on remand sub nom. Rios v. Enterprise

Association Steamfitters Local 638, 400 F. Supp. 983

(S.D.N.Y. 1975). Appeal from the present orders is taken

by way of certification under 28 U.S.C. §1291 (b).3 Since

appeal! has not been taken from any of the district court’s

findings on discrimination, see 501 F.2d at 627, the only

questions we have here, and they are several, relate to

remedial relief.

I. BACKPAY

The district court’s assorted holdings in respect to

backpay may be summarized as follows. First, backpay

was to be awarded to qualified members who applied in

writing for membership in A Branch‘ of Local 638, and

were denied admission after October 15, 1968, but before

June 21, 1973, the date of the order granting injunctive

relief. See 400 F. Supp. at 992. The district court's

reasoning for denying backpay to others was that dam-

ages arising from discriminatory work referral practices

are not ascertainable since Local 638 had no hiring hall

and there are no accurate records of job openings for the

period involved; damages to individuals who did not make

formal written application to the A Branch are “hypo-

3. See also Fed. R. App. P. 5.

4. TheA Branch isthe construction branch of the union. Its members have

the status of journeymen and do mainly construction work. The metal

trades or B Branch members generally work in shops and do repair work.

But see Rios v. Enterprise Ass'n Steamfitters Local 638, 520 F.2d 352, 354

(2d Cir. 1975). A Branch members receive higher hourly rates of pay.

Membership in the A Branch is a substantial aid in obtaining a job as a

construction steamfitter, is a prerequisite to certain job security and is of

assistance in terms of advancement and overtime pay. 360 F. Supp. at

984-85.

App. 13

thetical”; damages suffered as a result of the admin-

istration of the apprenticeship program are “speculative”;

and equitable considerations weigh against broader relief

since the admission test to the apprenticeship program

was registered with the United States and New York

State Departments of Labor and was adopted by the

defendants in good faith on the recommendation of ex-

perts. Jd. at 991.5

Second, while ability to pay is an equitable factor to be

taken into account in awarding backpay under Title VII,

and the union in this case has only limited financial

resources, the court concluded that the union is neverthe-

less liable. Jd. at 991-92. In light of the union’s financial

situation, however, the court reserved the right to make a

pro rata reduction of each claimant’s award, or to provide

for payments in installments, after the court has reviewed

the total impact of the backpay orders. Jd. at 993.

Third, the MCA is not responsible for all of the unlawful

or discriminatory practices—indeed, there has been no

specific MCA discrimination shown, the only showing

being that there has been a lack of nonwhite employment

in the industry generally with the result that industry

referral practices must be changed. Jd. at 992. MCA was,

therefore, found not liable for backpay.

Fourth, the district court held that the JAC, a joint

committee composed of four members chosen by MCA

and four members chosen by Local 638 which has con-

ducted the Steamfitters Apprenticeship Program through-

out the years, had no “demonstrated responsibility for

direct admissions to the A Branch of Locai 638 of persons

already qualified as journeymen steamfitters.” Jd. Thus it

5. It is to be noted that two days before the district court’s decision the

Supreme Court held that “good faith” is “not sufficient reason for denying

backpay,” and that “the mere absence of bad faith simply opens the door

to equity; it does not depress the scale in the employer's favor.” Albemarle

Paper Co. v. Moody, 422 U.S. 405, 422 (1975).

App. 14

too was found not liable. /d.

Fifth, the court adopted the two-year statute of limita-

tions which was set forth in Pub. L. No. 92-261, §4(a)

(Mar. 24, 1972), 14; see 42 U.S.C. §2000e-5 (g), a statue

enacted after the suit was brought and its classes defined.*

The court also limited forward recovery of backpay to the

period predating the court’s order granting a permanent

injunction against the unlawful discriminatory practices.

400 F. Supp. at 992. See Pettway v. American Cast Iron

Pipe Co., 494 F.2d 211, 258 (5th Cir. 1974); Johnson v.

Goodyear Tire & Rubber Co., 491 F.2d 1364, 1379 (5th Cir.

1974).

Sixth, the court limited backpay recovery to residents of a

county within the geographical jurisdiction of Local 638

at the time of their application for membership in the

Local 638 A Branch.’ 400 F. Supp. at 993.

And seventh, the court ordered that income from other

employment or from public assistance is to be deducted

from any backpay award. /d.

The EEOC and the Rios plaintiffs claim that in each of

the above respects the district court’s order was too

narrowly drawn to accord with the dictates of Albemarle

Paper Co. v. Moody, 422 U.S. 405 (1975), and courts of

appeals precedents. Local 638 argues on cross-appeal that

the district court abused its discretion in ordering a

6. The classes defined by Judge Tenney were two: (A) all nonwhite:

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 nonwhites

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. See memorandum filed in Rios Vv.

Enterprise Ass'n Steam/fitters Local 634, 71 Civ. 847 (S.D.N.Y. Aug. 10,

1971) (Tenney, J.).

7. That includes the five New York City counties, as well as Nassau and

Suffolk. ;

App. 15

backpay award against a union defendant in a Title VII

suit. The union claims that the effect of the backpay

award will be to bankrupt it, thereby destroying the

affirmative relief granted and frustrating the policy of

the Act. The union also points to the lack of evidence that

it had engaged in purposeful discrimination against non-

whites in connection with work referrals, see 360 F. Supp.

at 990. We will consider first the union’s claim on the

cross-appeal, and then the issues raised by the appellants.

A. Liability of Union for Backpay. We agree with the

Government and the Rios plaintiffs that the union’s argu-

ments against a backpay award amount to a claim for

special treatment for unions and special immunity for the

discriminatory practices in which they engage. This

claim has no support in equity or law. The statue, which

refers to “back pay (payable by the employer, employment

agency, or labor organization, as the case my be, respon-

sible for the unlawful employment practice) ...,” 42 U.S.C.

§2000e-5 (g), is directly to the contrary, To be sure,

Albemarle, supra, did approve a backpay award against

an employer rather than a union. But the Court quoted an

employer rather than a union. But the Court quoted with

evident approval from United States v. N.L. Industries,

Inc., 479 F.2d 354, 379 (8th Cir. 1973), stating that “{i}t is

the reasonably certain prospect of a backpay award that

‘provide{s] the spur or catalyst which causes employers

and unions to self-examine and toself-evaluatetheir em-

ployment practices and to endeavor to eliminate, so far as

possible, the last vestiges of an unfortunate and igno-

minious page in this country’s history.’” Albemarle, supra,

422 U.S. at 417-18 (emphasis added). In the parallel sheet-

metal-construction-workers’ case, EEOC y. Local 638...

Local 28 of the Sheet Metal Workers’ International As-

sociation, 532 F.2d 821 (2d Cir. 1976) [hereinafter Sheet

Metal Workers), backpay awards against the union (as

App. 16

well as against a joint apprenticeship committee) were

upheld, the court taking into account the language of

Albemarle, supra, that “given a finding of unlawful dis-

crimination, backpay should be denied only for reasons

which, if applied generally, would not frustrate the cen-

tral statutory purposes of eradicating discrimination

throughout the economy and making persons whole for

injuries suffered through past discrimination.” Albe-

marle, supra, 422 U.S. at 421, quoted in Sheet Metal

Workers, supra. 532 F.2d at 832. Since in many instances

it may well be that union, rather than employer, dis-

crimination is the prime. factor resulting in the evil

proscribed under Title VII, any broad rule that unions are

exempt from the equitable backpay award could well

“frustrate the central statutory purposes” of the Act, as

those are defined in the Albemarle opinion.

The union, however, makes the special claim that it

should be exempted from the backpay award issued in

this case because the amount of the award is potentially so

large that the union may be driven into bankruptcy,

thereby destroying its capabilities to provide relief for its

new minority members. This claim of financial exigency

seems premature at this stage. It is by no means apparent

that the backpay award will wreak the disastrous con-

sequences and summon forth the parade of horrors that

the union envisages. The record lacks any evidence

showing that the union faces imminent financial distress

should backpay be awarded; any evidence on this issue the

district court may consider prior to its entry of a final

backpay order. Therefore we do not now pass upon the

priority of any reduction, either under the law or the facts

as they may be developed. Indeed, it may not be amiss to

point out that the union and its pre-1968 membership

have financially benefited from its policy of excluding

App. 17

minority applicants from access to employment opportu-

nities which the union has historically controlled. It is,

therefore, no abuse of discretion to require relief for

appellees which may, if only indirectly, adversely affect

the interests of other union members. See Franks v.

Bowman Transportation Co., 44 U.S.L.W. 4356, 4364

(U.S. Mar. 24, 1976) (retroactive seniority); Patterson v.

Newspaper & Mail Deliverers’ Union of New York and

Vicinity, 514 F.2d 767, 775 (2d Cir. 1975).

Ample authority exists in other circuits for the award of

backpay against unions for Title VII violations, either

solely, where the union was primarily responsible, Guerra

Vv. Manchester Terminal Corp., 498 F.2d 641, 655-56 (5th

Cir. 1974), or against unions and employers jointly, where

responsibility for the discrimination is shared, e.g., Waters

v. Wisconsin Steel Workers of International Harvester Co.,

502 F.2d 1309, 1321 (7th Cir. 1974), cert.denied, 44

U.S.L.W. 3664 (U.S. May 25, 1976). See also UTU, Local

974 v. Norfolk & Western Railway Co., 532 F.2d 336 (4th

Cir. 1975), cert. denied, 44 U.S.L.W. 3592 (U.S. Apr. 20,

1976). The practice is the same under the National Labor

Relations Act in cases where a union has caused an

employer to discriminate against non-union or non-

conforming union employees. See Radio Officers Union v.

NLRB, 347 U.S. 17 (1954). The NLRA example was

thought to be the strongest analogy to the Title VII

situation by the Supreme Court in Albemarle, supra, 422

U.S. at 419. That opinion points out that the legislative

history of the Title VII backpay provision states that it

by “expressly modeled” on the NLRA backpay provision.

B. Limitation of Relief to Persons Applying In Writing

to Branch A for Membership. The Rios plaintiffs and the

EEOC challerge this portion of the district court’s order

on two bases—first, that the limitation to those who can

App. 18

prove they applied in writing for membership is invalid as

too restrictive as to those who have applied, and, second,

that many of the people discriminated against, but who

never actually applied for union membership, will be

precluded from recovery. The first issue raised is easy to.

resolve, the second more difficult.

Judge Bonsal’s order denies backpay to persons who do

not possess written evidence of their application for union

membership. His order was handed down prior to this

court’s decision in Sheet Metal Workers, supra, which in

reliance on Albemarle, supra, disapproved a similar order

in the sheet-metal-workers’ case. As the court said in Sheet

Metal Workers, limiting backpay to those who apply in

writing or can provide documentary proof would serve to

“frustrate the central statutory purposes” of Title VII,

especially since one reason that there may be no docu-

mentary proof is that the Local and the Joint Apprentice-

ship Council there, as here, kept incomplete records of

their membership applications. 532 F.2d at 832. “To deny

back pay to persons who, as a result of the union’s actions,

have no written proof is to reward the union and the JAC

for their record-keeping failures.” Jd. (emphasis original).

Thus the order of the district court in this respect must be

reversed. Testimonial evidence may be received as in any

other litigation, so that victims of discrimination in ad-

mission to journeyman membership in the A Branch of

the union, who actually applied therefor, may recover

whether or not they made formal written application.

Appellants’ second claim is that specific classes of

persons who may be able to present evidence of individual

discrimination are excluded from recovery by the district

court’s backpay order. The court’s order limits recovery to

those who applied for A Branch membership. Two other

very significant groups are excluded by this order: those

who were discriminatorily denied work referrals both

App. 19

before and after they were finally admitted to the A

Branch, 360 F. Supp. at 990-91, and those who failed

discriminatory apprentice entrance exams and therefore

did not make membership application, id. at 991-92.

We are agreed that the force of Albemarle and other

Title VII case law requires that any nonwhite steamfitter,

whether a union member or not, who claims that he was

discriminated against by work referral practices is en-

titled to prove the discrimination against him and any

resulting damages.* Presumably he would have to show

that despite his efforts to find work with a contractor or

with a steamfitting subcontractor he was turned down.

He would also have to show that the union referred only

white union members, “permit men” or B Branch men to

the jobs the nonwhite steamfitter sought, which were

filled by those referred. There will be, obviously, difficult

problems of proof for any individual plaintiff, but we see

no valid reason for precluding these persons from at-

tempting to produce such proof. As the Fourth Circuit

said in Hairston v. McLean Trucking Co., 520 F.2d 226

(4th Cir. 1975), “‘unrealistic exactitude is not required’ in

back pay determinations. ... "Id. at 233. Similarly,

“uncertainties in determining what an employee would

have earned but for the discrimination, should be resolved

against the discriminating [party].” Id. See also United

States v. United States Steel Corp., 520 F.2d 1043, 1058

toe “Permit men” are those who work with union “permits,” often relatives

and friends of union members.

9. By artificially limiting the number of qualified union members, the

union placed itself in a stronger bargaining position for wage increases in

its negotiations with the contractors. Thus, while the union members

economically benefited from the discrimination (not only in possible

higher hourly rates or access to overtime pay, but also in the restriction of

steamfitter ernployment to “white only”), the contractor members of the

MCA were no better off and may well have had to pay higher wages than

they would have in a freer labor market. The JAC is not shown to have

received any economic benefit from the discrimination.

App. 20

(5th Cir. 1975), petition for cert. filed, 44 U.S.L.W. 3649

(U.S. May 18, 1976); Pettway v. American Cast Iron Pipe

Co., supra, 494 F.2d at 260-61; Johnson v. Goodyear Tire

& Rubber Co., supra, 491 F.2d at 1380 n.53. We agree with

the EEOC and the private appellants that good faith is not

a defense in a Title VII case, and that such a defense is

equally inapplicable to claims for backpay as well as other

relief. Albemarle, supra, 422 U.S. at 422-23; Griggs v.

Duke Power Co., 401 U.S. 424, 430 (1971). See also

Washington v. Davis, 44 U.S.L.W. 4789, 4794 (U.S. June 7,

1976).

The writer of this opinion would apply the same prin-

ciples to those who were victims of discrimination in the

apprenticeship program. While their problems of proof

might even be greater, individuals should not be pre-

cluded from establishing loss of pay by appropriate proof

where, as here, admission to the program by test was not

job-related. The JAC has kept a record of all persons who

applied for the apprenticeship program, and the results

obtained by those who took the written test. The writer

fails to perceive any reason to distinguish the situation of

nonwhites who were discriminatorily denied apprentice-

ship, or who became indentured apprentices, but who lost

wages as a result of illegal employment discrimination,

from the situation of nonwhite journeymen who lost wages

for the same reason. See Pettway v. American Cast Iron

Pipe Co., supra, 494 F.2d at 258-59 (persons denied

admission to apprenticeship program eligible for back-

pay. I would read the language of Sheet Metal Workers,

supra, to apply to individuals seeking backpay as a result

of discrimination in the apprenticeship program.

My brothers Mansfield and Gurfein, however, feel quite

otherwise. They believe it to be within the proper exercise

of the conceded discretion of the district court, Albemarle,

cen mmm ecm

App. 21

supra, 422 U.S. at 421-23, to deny as hypothetical any

backpay in connection with the apprenticeship program,

at least where, as here, there was no purposefully bad

motive. In their view, even though would-be nonwhite

apprentices were victims of discrimination by the JAC,

their injury is too remote, and any damages suffered by

them altogether too speculative in the sense of the prob-

lem of proof, to permit an award. In this regard my

brothers point out that an applicant would have to prove

the following essential elements to recover:

That if nondiscriminatory tests for admission to the

program had been formulated and administered (which,

of course, never occurred), the applicant would have

passed them;

That he would have progressed satisfactorily through

the three- or four-year program to graduation; and

That he would then have obtained employment as a

steamfitter.

My brothers emphasize the Supreme Court’s recogni-

tion in Albemarle that “the trial court will often have the

keener appreciation of those facts and circumstances

peculiar to particular cases.” Id. at 421-22. This language,

they point out, clearly leaves room for district court

discretion, the exercise of which was not abused in this

instance, where difficult problems of proof in any event

are presented.

We are all agreed that those who were deterred from

applying to the A Branch but who were not discriminated

against in work referral practices should be denied re-

covery. It is one thing to grant retroactive or constructive

seniority to discriminatees deterred from applying for

jobs or promotions, as in Acha v. Beame, 531 F.2d 648 (2d

Cir. 1976), or in Chance v. Board of Examiners, Nos. 75-

7161, -7164 (2d Cir. Jan. 19, 1976), slip op. 6757 (on

petition for rehearing). It is another thing to grant back-

App. 22

pay to those who never applied for a job because they

thought it was useless to do so. As pointed out in Sheet

Metal Workers, supra, 532 F.2d at 833 n.6, the seniority

remedy is “far less drastic for a defendant” than the

remedy of backpay. Moreover, the retroactive seniority

afforded in Acha and Chance was, by the very nature of

the remedy, limited to those who were actually employed.

The relief of backpay in our situation would not be

limited; the number of potential claimants and the po-

tential burden on defendants is, as in Sheet Metal

Workers, supra, much greater.

We all recognize the administrative burden that the

trial of a backpay suit necessarily impose upon the district

court. We fully recommend that the court utilize its full

powers under 28 U.S.C. §636 and Fed. R. Civ. P. 53, to

refer these matters to a special master, who may under

the statute be magistrate if permitted by local rule, for a

comprehensive report. Pettway v. American Cast Iron

Pipe Co., supra, 494 F.2d at 258. As the Pettway court

pointed out, this does not preclude a negotiated settlement.

C. Liability of MCA. MCA is a trade association of

approximately 60 out of the some 300 heating, ventilating

and air conditioning contractors in the New York area -

which employ steamfitters. The 60 MCA members em-

ploy the major share of the steamfitter labor force and

MCA represents its members in collective bargaining

negotiations and other labor relations. 360 F. Supp. at.

985. Over the decade 1960-69, the MCA steamfitting

contracts within the New York City and Nassau and

Suffolk Counties never totaled less than $77 million and

were as high as $118 million. Jd. at 986. Generally

speaking, steamfitting contractors maintain steady crews

which are moved from job to job as work on new contracts

begins and old contracts are completed. When additional

personnel are required, some contractors hire them

Petite! Pate OAs lintas cate COOH

App. 23

directly; other contractors hire through their superin-

tendents and in fewer instances through their foremen.

Id. In collective bargaining negotiations in 1966 and 1969,

MCA tried to require the indenturing into the industry of

a minimum of 150 new apprentices annually, but the

union rejected these proposals. Jd. at 988. The court found

that there was no evidence that “either Local 638 or MCA

has engaged in purposeful discrimination against non-

whites.” Jd. at 990. But it did find that “the conditions of

the industry ... in combination with the history of dis-

crimination in admissions to the A Branch of Local 638,

give whites advantages in obtaining employment.” Jd.

MCA was enjoined from further discrimination and or-

dered to maintain up-to-date records of available work, to

submit an affirmative action program, to use its best

efforts to provide apprentices with 1,750 hours of work

per year and to maintain an employment register. The

Rios plaintiffs argue, not without reason, that this relief

could not have been ordered absent a finding of dis-

crimination by MCA, purposeful or otherwise, and that

all that is required to establish MCA’s liability for back-

pay is the finding of discrimination; indeed, mere ac-

quiescence in the discriminatory acts of the union would

render it liable. Johnson v. Goodyear Tire & Rubber Co.,

491 F.2d at 1381-82; Macklin y. Spector Freight Systems,

Inc., 478 F.2d 979, 989 (D.C. Cir. 1973). See also

Robinson v. Lorillard Corp., 444 F.2d 791, 799 (4th Cir.),

petition for cert. dismissed, 404 U.S. 1006 (1971). Absent

any specific finding of discrimination, however, we con-

clude the district court’s finding of nonliability on the part

of MCA is not an abuse of discretion. Guerra v. Man-

chester Terminal Corp., supra, 498 F.2d at 655-56. As the

district court held, making MCA a party defendant did

not imply that MCA was “responsible ipso facto for all the

employment practices ... found unlawfully discrimina-

App. 24

tory or ... liable in damages to the plaintiffs in Rios.

Plaintiffs have shown no specific instances of MCA dis-

crimination.” 360 F. Supp. at 995. And the union certainly

had primary responsibility for the discrimination. We

note that the decision below was without prejudice to any

claim a member of the plaintiff's class may have against

an employer, but MCA was not itself an employer, and no

employers are parties to this action. See 400 F. Supp. at

922 n.4.

D. Liability of the JAC. The JAC as we have said is a

joint labor management committee composed of four

members chosen by MCA and four members chosen by

Local 638. The major function of the JAC is to supervise

the steamfitters’ apprenticeship program. The four man-

agement trustees are designated by MCA and serve at the

will of MCA, which can at any time terminate the desig-

nation of a trustee by resolution of the MCA board of

directors. One of the JAC directors is the MCA executive

secretary. The union trustees on the JAC are three of the

principal union officers. The district court found that the

apprenticeship program conducted by the JAC did not

“fully meet the requirements of Title VII.” 360 F. Supp. at

991. The court went on to hold that the written tests given

to apprenticeship applicants since 1967 had a differential

impact on nonwhites, and that the defendants had not met

their burden of proving that the tests were “job-related,”

at least until they began administering the general apti-

tude test battery as indicated at the time of trial. See 360

F. Supp. at 992. However, the district court held that the

JAC has “no” demonstrated responsibility for direct

admissions to the A Branch of Local 638 of persons

already qualified as journeymen steamfitters.

Therefore, only Local 638 is liable for back pay.

400 F. Supp. at 992 (footnote omitted). Appellants claim

App. 25

that the district court has abused its discretion by re-

fusing to make the JAC jointly liable with the union for

backpay damages. We disagree.

The reasoning of the district court is evidently premised

on its view, fully supported in the record, that the union

was the dominant factor in creating and perpetuating the

discriminatory membership criteria. The courts could

well have concluded from the record before it that al-

though JAC was a participant in the lesser of the dis-

criminatory practices, the major blame for both the

discriminatory examinations and the more invidious

direct admission policy lay squarely with the union. This

consideration, in addition to the fact that it was the union

and its members, rather that the JAC itself, which

profited from the unlawful practices,’ indicates that it

was no abuse of discretion for the district court to require

the union to shoulder the entire responsibility for. back-

pay. See Guerra v. Manchester Terminal Corp., supra, 498

F.2d at 655-56.

E. Statute of Limitations. In these combined actions, the

Government filed suit on June 29, 1971 under Title VII

and the private plaintiffs filed suit on February 26, 1971,

under Title VII and also under 42 U.S.C. §§1981, 1983.

The Rios plaintiffs had initially filed their charge of

discrimination with the New York Division of Human

Rights on August 19, 1970, and with the EEOC on

October 15, 1970. When these actions were first brought

there was no specific applicable federal statute of limita-

gy By artificially limiting the number of qualified union members, the

union placed itself in a stronger bargaining position for wage increases in

its negotiations with the contractors. Thus, while the union members

economically benefited from the discrimination (not only in possible

higher hourly rates or access to overtime pay, but also in the restriction of

steamfitter employment to “white only”), the contractor members of the

MCA were no better off and may well! have had to pay higher wages than

they would have in a freer labor market. The JAC is not shéwn to hgve

received any economic benefit from the discrimination.

App. 26

tions. On March 24, 1972, Congress enacted the Equal

Employment Opportunity Act of 1972, §706(g) of which

provides for a statute of limitations barring actions

arising more than two years prior to the filing of a charge

with the EEOC. 42 U.S.C. §2000e-5(g). The district court

applied the 1972 statute retroactively to this case,

reasoning that the amendment had “a bearing on con-

gressional intent as to the limitation to be imposed in

granting back pay awards.” 400 F. Supp. at 992. There-

fore the court ordered backpay only for the period after

October 15, 1968.

We disagree with this retroactive application of the new

statute of limitations rule, as have the Fifth and Sixth

Circuits. See EEOC Vv. Detroit Edison Co., 515 F.2d 301,

315 (6th Cir. 1975), petition for cert. filed, 44 U.S.L.W.

3214 (U.S. Oct. 7, 1975); United States Vv. Georgia Power

Co., 474 F.2d 906, 922 n.21 (5th Cir. 1973). The subsequent

enactment cannot be indicative of the prior congressional

intent.

Prior to the enactment of the federal statute, we would,

of course, look to the analogous state statute of limitations.

See Chevron Oil Co. v. Hudson, 404 U.S. 97, 104 (1971);

Jones Vv. Trans World Airlines, Inc., 495 F.2d 790, 799 (2d

Cir. 1974); Swan v. Board of Higher Education, 319 F.2d

56, 59 (2d Cir. 1963). This rule has been applied in

backpay cases as well. See Franks v. Bowman Transporta-

tion Co., 494 F.2d 398, 405 (5th Cir. 1974), affd, 44

U.S.L.W. 4356 (U.S. Mar. 24, 1976); Pettway v. American

Cast Iron Pipe Co., supra, 494 F.2d at 258; Johnson v.

Goodyear Tire & Rubber Co., supra, 491 F.2d at 1378. The

analogous New York statute of limitations is N.Y. Civ.

Prac. L. R. §214(2) which establishes a three-year limit for

“an action to recover upon a liability ... created or

imposed by statute...” This statute has been applied in

the context of federal civil rights actions on more than one

App. 27

occasion. DeMatteis v. Eastman Kodak Co., 511 F.2d 306,

311-12 n.8 (2d Cir. 1975); Kaiser v. Cahn, 510 F.2d 282,

284 (2d Cir. 1974). Applying the three-year time bar,

appellants would be entitled to assert backpay claims

accruing as early as August 19, 1967, i.e. three years

prior to filing uf the first charge with the New York

Division of Human Rights. See Hutchings v. United States

Industries, Inc., 428 F.2d 303, 308-09 (5th Cir. 1970).

We also agree with appellants that since the purpose of

backpay is to make whole the victims of discrimination,

Albemarle Paper Co. v. Moody, supra, the district court

erred in setting June 21, 1973, the day when it ordered

injunctive relief, as the termination date for the backpay

award. Obviously, the injunctive relief did not provide for

immediate entry into the A Branch for all identifiable

victims of past discrimination (much less immediate job

placement of those who had been denied equal job refer-

rals). It is the date of actual remedying of discrimination,

rather than the date of the district court’s order, which

should govern. Patterson v. American Tobacco Co., No. 75-

1259 (4th Cir. Feb. 24, 1976), slip op. at 23-25. We agree

with the Government that to hold otherwise is to en-

courage the union to delay the remedial process rather

than to encourage the rapid achievement of the dis-

crimination victims’ rightful place.

F. Residence Requirement. The district court required

backpay claimants to prove residence within the geo-

graphic jurisdiction of the union at the time of the

application for membership. The union argues that this

limitation lies within the district court’s discretion on the

basis that residence is an indication of an individual’s

availability for work within the union’s geographic juris-

diction. We fail to see the logical relationship of this

argument to the issue whether a given individual is

entitled to backpay. During the relevant period there was

App. 28

no residence requirement for admission of qualified

journeymen into A Branch. The membership require-

ments were that the applicant have five years’ experience

in the plumbing and pipefitting industry and good moral

character. But the class, as defined by Judge Tenny, note

6 supra, entitled to relief is limited to those nonwhites

residing in New York City and the Counties of Suffolk

and Nassau, so that Judge Bonsal’s order simply reflects

that definition, and therefore we do not disturb it.

G. Deduction of Public Assistance. The district court

ordered that “public assistance” was to be deducted from

any backpay awarded. Title VII provides only that

“{iJnterim earnings or amounts earnable with reasonable

diligence by the person or persons discriminated against

shall operate to reduce the back pay otherwisc >llowable.”

42 U.S.C. §2000e-5(g). The Rios plaintiffs object to the

offset of public assistance payments from backpay, and

refer us to the NLRB model, so extensively relied upon by

the Supreme Court in Albemarle. In the NLRB context,

the Supreme Court held in NLRBv. Gullett Gin Co., 340

U.S. 361 (1951), that the Board has the power to enter an

order refusing to deduct unemployment compensation

payments from backpay. See also Marshall Field & Co. v.

NLRB, 318 U.S. 253, 255 (1943). It is evidently NLRB

policy to disallow deductions for collateral benefits of this

nature, 340 U.S. at 365. But in Satty v. Nashville Gas Co.,

522 F.2d 850 (6th Cir. 1975), petition for cert. filed, 44.

U.S.L.W. 3254 (U.S. Oct. 28, 1975), the Sixth Circuit held

that a backpay award under Title VII is to be “reduced by

temporary wages and unemployment insurance.” /d. at

855. This statement was based on Head v. Timken Roller

Bearing Co., 486 F.2d 870 (6th Cir. 1973), which in turn

relied upon Robinson v. Lorillard Corp., supra, 444 F.2d

at 802, for the view that “[tJhe back pay award is not

App. 29

punitive in nature but equitable—intended to restore the

recipients to their rightful economic status absent the

effects of the unlawful discrimination.” See also Bowe v.

Colgate-Palmolive Co., 416 F.2d 711, 721 (7th Cir. 1969)

(deduction of unemployment compensation proper as ex-

ercise of trial court discretion).

The weight of common law authority is that collateral

sources are not deductible from a tort damage award. See

2 F. Harper & F. James, The Law of Torts §25.22, at 1343

n.1 (1956). But see Coyne v. Campbell, 11 N.Y.2d 372, 230

N.Y.S.2d 1, 183 N.E.2d 891 (1962) (New York law view is

purpose of tort remedy is to restore the net rather than

gross harm suffered by the plaintiff). However, in a

number of states, where the collateral source is wholly

derived from the contributions of the employer, offset for

payments from the fund will be required. F. Harper & F.

James, comment to §25.22 nn.5-6, at 153-54 (1968 Supp. to

Vol. 2). Where payment has been received from a fund

»btained only in part from contributions made by the

defendant, the majority rule is that no offset is allowed.

Id.; see United States v. Harue Hayashi, 282 F.2d 599 (9th

Jir. 1960) (no deduction for federa! Social Security bene-

fits). Since funds for public assistance are collected only

in part from the MCA members, and not even in part

from the JAC and the union, the weight of common law

authority would support denial of the offset.

As a matter of policy, however, we are inclined to agree

with the Satty case and the rulings in other circuits which

have held it not an abuse of discretion to deduct sums

received from collateral sources such as unemployment

compensation. While it was employer rather than union

contributions that went toward the underlying payments

of unemployment compensation by the Government, ab-

sent such a governmental scheme the bargaining power of

unions would surely be increased and their wages (and

App. 30

hence dues) very probably greater. We see no compelling

reason for providing the injured party with double re-

covery for his lost employment; no compelling reason of

deterrence or retribution against the responsible party in

this case; and we are not in the business of redistributing

the wealth beyond the goal of making the victim of

discrimination whole.

H. Pro Rata Modification. The district court reserved

the right in the event that the total award for backpay was

too great for the union to pay either to modify the award

on a pro rata basis or to provide for payments in install-

ments. The district court has thus indicated that ability to

pay is a factor it may consider in its determination of

appropriate equitable relief under Title VII. See United

States v. Georgia Power Co., supra, 474 F.2d at 919-22.

While the parties have briefed the question extensively,

we think the issue is premature at this stage and decline

to take a position on it. See Part A, supra. We note,

however, our agreement with the general proposition that

remedial obligations under Title VII are just as important

and entitled to just as great a call on the union resources

as more traditional functions. The Title VII responsibili-

ties, in other words, are of the same importance and

entitled to the same support through dues or assessments

of members as any other duty of the union. Cf. Franks v.

Bowman Transportation Co., supra, 44 U.S.L.W. at 4364;

United States v. Bethlehem Steel Corp., 446 F.2d 652, 662-

64 (2d Cir. 1971). But it would be an academic exercise for

us to determine at this stage whether any given pro rata

deduction under all the circumstances would or would not

be permissible. The question may not arise; if it does then

the balance of factors to be considered will be more

concretely framed at that time.

App. 31

Il. ATTORNEY’S FEES

The district court found that the Rios plaintiffs’ motion

for attorney’s fees $128,092.50 would ordinarily be

awarded on the basis of the hours spent and rates sug-

gested if the fees were to be paid by a profit-making

defendant. 400 F. Supp. at 996.'° Jn view of the fact that the

fees were ordered to be paid solely by Local 638, whose

members will bear the burden, and in view of the fact that

the Rios plaintiffs were represented by a public interest

law firm, the National Employment Project, which is

substantially funded by the federal government via the

EEOC, the district court reduced the award to $50,000.

400 F. Supp. at 993-97. On cross appeals the Rios

plaintiffs claim the whole amount should be paid and

Local 638 argues that the applicable statute,'! which

provides that only a prevailing party “other than the

[EEOC] or the United States” may be awarded attorney’s

fees, requires that none of appellants’ counsel should

recover fees in this case. The union’s claim is that since the

National Employment Law Project is principally funded

by the United States Government, to award fees to it

would run counter to the statutory policy. As the union

argues, and the First Circuit held in Hoitt v. Vitek, 495

F.2d 291, 220 (1st Cir. 1974), undertaking a non-fee-

paying case is the job of a public interest attorney who is

salaried principally through federal funding. Certainly

any fee recovery will accrue to the funded Project, since

the individual public interest attorney wil! not increase

“10. There was full compliance with the stringent record-keeping require-

ments of City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974).

11. 42 U.S.C. §2000e-K(k) which provides in part:

In such action or proceeding under this subchapter the court, in its

discretion, may allow the prevailing party, other than the Commission

or the United States, a reasonable attorney's fee as part of the costs... .

This takes the case out of the scope of Alyeska Pipeline Service Co. v.

Wilderness Society, 421 U.S. 240 (1975).

App. 32

his income as a result of the award of fees.

But we read the statute to proscribe less than the union

claims. The statutory prohibition applies only where the

EEOC or the United States Government is the prevailing

party. Here the Rios plaintiffs are the prevailing parties

and their attorney, the Project, is neither a party nor a

branch of the United States Government; rather, the

Project is a nonprofit corporation which receives some of

its funding from non-governmental sources. Even though

that nonfederal funding is very small, we have no idea

how long the federal funding may continue. Indeed, it

may have been the intent of Congress that at some point

public interest firms that are awarded fees will be able to

function on their own, to carry out the beneficent pur-

poses of the Act. Moreover, even if federal funding were to

continue at pre-existing levels, an award of attorney’s fees

would presumably enable the Project to expand its activi-

ties beyond those possible under the federal grant.

Accordingly we hold that the Project is entitled to an

award.

The making of an attorney’s fees award is discretionary

under the statute. We do not think that the district court

has abused its discretion by awarding the Project less

than might have been paid to a non-federally funded law

firm. As it turns out, dividing the fee by the total number

of hours spent it appears that the rate per hour is

approximately what defense counsel receive under the

Criminal Justice Act.'* This seems to us a permissible pay

scale under all the circumstances."

12. Fifty thousand dollars divided by 2449.75 hours, see 400 F. Supp. at

996, equals $20.41. Cf. 18 U.S.C. §3006A(d) ($30 per hour for time

expended in court, $20 per hour cut of court).

13. In Torres v. Sachs, Nos. 76-70002, -7072 (2d Cir. June 25, 1976), slip op.

4431, the court rejected the argument that publicly-funded law firms

must be paid less than the rates applicable to fee-charging counse!. The

court did not have before it the question whether the factor of public

~+-rn

atte

App. 33

Judgment in accordance with opinion.

funding could be considered by the district court in its discretionary

determination of an appropriate attorney's fee. We believe that the Title

VII prohibition against fees for federal enforcement agencies indicates

that it is appropriate for the district court, by analogy, to consider the

factor of federal funding in its computation of a discretionary attorney's

fee award.

App. 34

Opinion and Order of Bonsal, U.S.D.J.,

Dated June 21, 1973

UNITED STATES DISTRICT COURT

SouTHERN District or New York

June 21, 1973.

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

Unrrep States of AMERICA,

Plaintiff,

Vv.

Loca. 638, Enterprise Association or Steam, Hor Water,

Hypraviic SprinkLer, Pneumatic Tuse, CoMPRESSED

Arr, Ick Macurne, Arr ConpriTIonInG AND GENERAL PIre-

FITTERS, et al.,

Defendants.

Grorce Rios et al.,

Plawtiffs (Complainants),

ENTERPRISE ASSOCIATION STEAMFITTERS

Locat Union #638 or U.A. et al.,

Defendants (Respondents).

Bonsat, 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

App. 35

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 Commit-

tees and employee associations. Separate trials were or-

dered for each local union and its counterparts. See, e.g.,

the case involving Loca] 40, United States v. Local 638, En-

terprise Association, etc., et al., 347 F. Supp. 169 (S.D.N.Y.

1972) (Gurfein, J.). |

In the case of Loca] 638, Enterprise Association of Steam,

Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Com-

pressed Air, Ice Machine, Air Conditioning and General

Pipefitters (hereinafter “Local 638”), the government’s ac-

tion (United States v, Local 638, et al., 71 Civ. 2877) was

consolidated for purposes of trial with a private action

(Rios v. Enterprise Association, ete. Local Union #638,

et al., 71 Civ. 847) which had been instituted by four “non-

whites” ‘—allegedly the victims of unlawful employment

discrimination—against Local] 638, the Mechanical Contrac-

tors’ 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 neces-

sary 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

1The term “nonwhites” as used in this Opinion refers to black

and Spanish-surnamed individuals.

App. 36

access to steamfitting work in New York City and said

Counties.”

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,

ete., 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 Act* by:

“(a) [flailing and refusing to admit nonwhite work-

men into .. . [Local 638] as journeymen members

on the same basis as whites are admitted;

“(b) [flailing and refusing to refer nonwhite work-

men for employment within [its jurisdiction] on the

same basis as whites are referred by applying stand-

ards for referral which have the purpose and effect of

ensuring referral priority to... A Branch members,

* See Memorandum filed in Rios v. Enterprise Association Steam-

fitters Local Union #638, 71 Civ. 847 (S.D.N.Y. August 10, 1971)

(Tenney, J.). ,

* 42 U.S.C. § 2000e-2(c) and § 2000e-2(d).

App. 37

nearly all of whom are white, thereby perpetuating

the effects of [its] past discrimination;

“(e) [fJailing and refusing to recruit blacks for mem-

bership in and employment through . . . [Local 638]

on the same basis as whites are recruited;

“(d) [fJailing and refusing to permit contractors with

whom... [Local 638 has] collective bargaining agree-

ments to fulfill the affirmative action obligations im-

posed upon those contractors by Executive Order

11246 by refusing to refer out blacks whom such con-

tractors wish to employ;

“(e) [flailing 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 compiaint 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) [f]ailing and refusing to make information con-

cerning apprenticeship opportunities available to non-

whites on the same basis as it is made available to

whites ;

“(b) [fJailing and refusing to make apprenticeship

opportunities available to non-whites on the same basis

as they are made available to whites by giving a pref-

erence in the selection of apprentices to friends and

relatives of union members, nearly all of whom are

white ;

App. 38

“(¢e) [a]dopting standards for the selection of appren-

tices which are not job related and which operate to

disqualify a disproportionate number of non-white ap-

plicants 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 nonwhites‘ 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 plain-

tiffs to membership in the A Branch of Local 638 (journey-

men) and to participation in the JAC apprenticeship pro-

gram on the same basis as whites, and that the defendants

have failed to provide nonwhite A Branch members with

equal access to job opportunities as journeymen steam-

fitters. 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 com-

plaint against it on the grounds that it is neither an “em-

ployer” 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.

*The complaint sets forth that “[p]laintiffs Rios, Jenkins, and

Lewis are fully qualified steamfitters whom the Union [Local 638]

refuses to refer for work and to admit to membership. Plaintiff

Rutledge has been denied admission to the apprenticeship program

operated by the Defendants even though he is intelligent, able-

bodied and fully capable of doing steamfitting work if given rea-

sonable training.”

5See Rios v. Enterprise Association Steamfitters Local Union

No. 638, 326 F.Supp. 198 (S.D.N.Y. 1971) (Frankel, J.) (decision

on motion of plaintiffs for a preliminary injunction).

App. 39

BACKGROUND FACTS

1. Local 638 is a labor union whose territorial jurisdic-

tion consists of the five boroughs of the City of New York

and Nassau and Suffolk connties.

2. Local 638 is a member of the United Association of

Journeymen and Apprentices of the Plumbing and Pipe-

fitting Industry (“United Association”).

3. Local 638 represents its members in collective bargain-

ing 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 surnmed

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

* Computed from the stipulated number of members in 1971 plus

the stipulated number of additional members during 1972.

App. 40

6. Since 1960, the number of members of the B Branch

has been as follows:

_Year Members Blacks pa A

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 advance-

ment and for earning overtime pay.

9. Workers in the construction steamfitting industry are

engaged in the installation of refrigeration, air condition-

* Approximate. Figures were not available for prior years.

App. 41

ing, heating, ventilating, pneumatic tube, and sprinkler sys-

tems 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 re-.

quire. It is necessary for a steamfitter to know how to meas-

ure, cut, thread, and connect pipe. In addition, it is neces-

sary that at least some of the steamfitters on a job site

know how to weld pipe “in position.” Since incompetent

work may necessitate redoing the job or may endanger

fellow workers or future occupants of the structure, steam-

fitters must know and follow recognized safety procedures.

10. MCA is a trade association of approximately 60 heat-

ing, ventilating, and air conditioning contractors in the

New York area. While the total number of contractors em-

ploying steamfitters exceeds 300, the 60 MCA members

employ the major share of the steamfitter labor force. MCA

represents its members in collective bargaining negotiations

and other labor relations matters with Local 638.

11. Pursuant to a 1960 Declaration of Trust, the Steam-

fitters Industry Educational Fund was created, with a

Board of Trustees, four of whom are chosen by Local 638

and four by MCA. The trustees appoint JAC, a joint labor-

management committee of eight members.

12. All of the present and past officers and business

agents of Local 638 are white. All of tffe present and past

officers of MCA are white. Since its formation, all members

and employees of JAC have been white.

13. In 1973, the nonwhite membership of the A Branch

(191 members) constituted 4.5% of the total membership of

App. 42

the A Branch. According to 1970 census figures, the related

population statistics for the seven counties within the juris-

diction of Local 638° are as follows: Black and Puerto Rican

persons constitute 25.09% of the total population of the

seven counties; black persons and persons reporting the

Spanish language as their mother tongue constitute 30.06%

of the total population of the seven counties.

14. Each applicant for membership in the A Branch

must have at least five years of practical working experi-

ence in the plumbing and pipefitting industry and must be

of good moral character. In some instances, these require-

ments have not been strictly adhered to.’

15. Procedurally, applicants to the A Branch send letters

to the union stating their qualifications, which letters are

reviewed by a committee composed of three of the union’s

officers. These applications are kept on file and when addi-

tional members are needed—a determination which is based

upon the demand for labor—applicants are called down,

interviewed, and if they have the necessary qualifications,

accepted.

16. The steamfitting industry is subject to fluctuations

and cyclical unemployment. During the years from 1960

®* Local 638’s jurisdiction covers the following counties: Bronx,

Kings, Nassau, New York, Queens, Richmond, and Suffolk. The

population figures are taken from U. 8. Department of Commerce,

Bureau of the Census, Census of Population: General Social and

Economic Characteristics, New York (PC (1)—C34 N.Y.) (1970).

*For example, the evidence at trial disclosed that Thaddeus

Kryjak became a member of the A Branch of Local 638 through

the sponsorship of his father-in-law after about three years experi-

ence; Frederick Gruter became a member of the A Branch after

about two years as a helper; Frank Catapano transferred to the

A Branch from the b Branch after 4 years of experience.

App. 43

to 1969, the total dollar value of all steamfitting contracts

awarded to members of MCA to be performed within New

York City and Nassau and Suffolk counties was as follows:

1960 $ 88,830,736

1961 92,464,643

1962 104,869,893

1963 99,095,020

1964 94,227,895

1965 77,570,242

1966 93,103,558

1967 95,759,129

1968 107,966,466

1969 118,990,480

17. In the post-war era, there has been a shortage of

construction steamfitters in the New York area as well as

a shortage of welders. Employers have been required to

expend substantial monies for overtime, A computer study

of overtime hours from 1967 to 1971 indicates the following:

Total overtime Average

_Year hours* per week

1967 481,967 2.47

1968 432,206 2.97

1969 453,807 2.96

1970 541,195 3.55

1971 724,172 3.67

18. By reason of the shortage of manpower, Local 638

has referred B Branch men to work as construction steam-

fitters.

*The term “overtime hours” includes both hours worked in

excess of the normal 7-hour day and also hours worked outside

of the usual work schedule, from 8 :00 a. m. to 3:30 p. m.

App. 44

19. Local 638’s application procedures are designed to

keep the A Branch from being flooded, by admission of only

a small number of new A Branch members, which tends to

continue the shortage of A men and tends to give them

job security and overtime.

20. Local 638 does not maintain a hiring hall, nor does

it keep formal records of available jobs or of unemployed

steamfitters who are seeking work within its territorial

jurisdiction. The general practice is for steamfitting con-

tractors to maintain steady crews, which are moved from

job to job as work on new contracts begins and old con-

tracts are completed. Hiring of men in addition to the

steady crews is done directly by some contractors; other

contractors hire men through their superintendents and in

fewer instances through their foremen,

21. There is no formal method of referring workers for

employment in the steamfitting industry in the New York

area. Information concerning available employment is cir-

culated informally by word of mouth and other means.

Steamfitters seek work primarily by contacting A Branch

members of Loca] 638, employers’ foremen and superin-

tendents, and occasionally officers and agents of Local 638.

Employers seek steamfitters by contacting members of

Local 638 through their superintendents and foremen, and

by contacting Local 638 and MCA.

22. JAC conducts a 5-year apprenticeship training pro-

gram consisting of a total of 720 hours of classroom work

at the Delehanty Institute and Voorhees Technical Institute

and 9100 hours of employment with steamfitter employers

at construction sites. Upon successful completion of the

App. 45

program, an apprentice becomes a journeyman member of

the A Branch. The apprenticeship program was designed

and developed by the United Association and the Mechani-

cal Contractors Association of America in consultation with

the United States Department of Labor, Bureau of Appren-

ticeship and Training. The national program has been reg-

istered with the United States Department of Labor, and

the local program has been registered with the New York

State Department of Labor.

23. Apprentices are paid a percentage of a journeyman’s

wages according to the following schedule:

lst year 40% of journeyman wages

2nd year 50% ” ” ”

3rd year 60% ” a

4th year 70% ” - -

5th year 85% ” ” os

In addition, apprentices receive fringe benefits. The col-

lective bargaining agreement also requires contractors to

pay apprentices for five of the seven hours of class which

apprentices attend once every other week, with some mem-

bers of MCA voluntarily paying apprentices for the full

7-hour work day.

24. The first apprenticeship class was formed by JAC

on December 15, 1947. As of July 19, 1971 (after the most

recent class was indentured) 973 of the journeymen mem-

bers of the A Branch had at some time been enrolled in

the apprenticeship program. This number constitutes less

than 25% of the total membership of the A Branch at

present, though the percentage of members of the A Branch

who are graduates of the apprenticeship program is in-

creasing.

App. 46

25. Prior to 1964, apprenticeship applicants were selected

on the basis of a personal interview conducted by members

of JAC and there was no formal method of announcing

the formation of new apprenticeship classes. No non-whites

became apprentices prior to 1964.

26. JAC instituted a written aptitude examination as

part of the apprenticeship program selection procedure in

1964. In that year, JAC, with the advice of New York

University, was responsible for the selection of the tests

and the determination of the passing score. There were no

classes indentured in 1965 and 1966. In 1967, 1968, 1969,

1970, and 1971, JAC, with the advice of the Stevens Insti-

tute of Technology, was responsible for the selection of the

tests and determination of the passing score. The written

aptitude examination was in four parts: 1) Verbal mean-

ing (the ability to understand ideas in words); 2) Numeri-

eal ability (the ability to work with numbers and handle

simple quantitative problems); 3) Mechanical reasoning

(the ability to understand and apply basic mechanical prin-

ciples); and 4) Spatiai relations (the ability to visualize

objects in 3-dimensional space).

27. In 1964, no applicant was refused admission to the

program on the basis of his test scores. Since 1967, the test

results have been as follows: Of the 1177 white applicants

who have taken a written examination, 487 (41.37%)

passed; of the 106 black applicants, 11 (10.37%) passed;

and of the 18 Spanish-surnamed applicants, 2 (11.11%)

passed.*

*The parties stipulated to the breakdown of the test scores as

set forth in the Appendix.

App. 47

28. Since 1966, applicants have been required to furnish:

1) a high school or equivalency diploma; 2) evidence that

they are between 18 and 24 years of age, with an allowance

for military service up to the age of 28; 3) a listing of

arrests and the outcome of each, except for minor traffic

violations ; 4) evidence of residency in the New York metro-

politan area for three years (reduced to one year in 1968) ;

5) sponsorship by a member of the A Branch; and are re-

quired to undergo a physical examination by a doctor se-

lected by JAC. Applicants were also given an oral inter-

view by members of JAC to orient them to the apprentice-

ship program, but there is no evidence that admission to the

apprenticeship program has been denied solely on the basis

of the oral interview.

29. Since the filing of the Rios action in 1971, JAC has

modified its standards for admission to the apprenticeship

program.

30. With respect to the class to be indentured in 1973,

JAC proposes the following requirements: 1) that the ap-

plicant take and pass one of the tests (S-61R) of the Gen-

eral Aptitude Test Battery (GATB) of the United States

Training and Employment Service; 2) that the applicant

be between the ages of 18 and 24 (with credit for military

service up to the age of 28); 3) that the applicant have a

high school or equivalency diploma; and 4) that the appli-

cant demonstrate physical capacity to do the work. In addi-

tion, JAC proposes to conduct an interview of applicants

and at such time to inquire about each applicant’s motiva-

tion, education, work history, health, and family back-

App. 48

ground, though at the time of the trial, no format for the

interview had been determined.’

31. As of July 9, 1971, there were 408 participants in the

apprenticeship program of whom 12 (2.94%) were black

and 4 (0.98%) were Spanish-surnamed. In June 1972, 32

apprentices (all of them white) graduated from the pro-

gram; currently there are 376 participants in the appren-

ticeship program of whom 12 (3.19%) are black and 4

(1.08%) are Spanish-surnamed,

32. Since 1964, 492 apprentices have been indentured of

whom 464 (94.3%) were white, 23 (4.67%) were black, and

5 (1.01%) were Spanish-surnamed, as follows:

White Black —_, Total

1964 a er 1 55

1965 0 0 0 0

1966 0 0 0 0

1967 43 2 0 45

1968 86 5 2 93

1969 94 5 2 101

1970 94 2 0 96

1971 100 2 0 102

1972 0 0 0 0

Totals 464 23 5 492

33. Of the 492 apprentices who have been indentured

since 1964, 31 whites (6.7%) and 7 nonwhites (25%) had

dropped out of the program by the end of 1971.

* During the pendency of this action, JAC conducted interviews

of approximately 1400 apprenticeship applicants for the 1973 class.

The Court was advised that based on the information obtained at

the interviews and on the results of the written examination, the

applicants were ranked from “1” to “1400”. The parties propose

that selections be made from this list.

App. 49

34. MCA, in its collective bargaining negotiations in 1966

and 1969, proposed to amend the previous agreements to

require the indenturing into the industry of a minimum of

150 new apprentices annually, which proposals were not in-

corporated in the resulting collective bargaining agree-

ments. The union’s stated reason for rejection of such pro-

posals was to ensure reasonably continuous employment

opportunities for apprentices as required by the New York

State Department of Labor, Bureau of Apprenticeship

Training.

35. The principal affirmative action taken by Local 638

and JAC to increase non-white participation in the steam-

fitting industry has been its participation in the New York

Plan since its inception in 1971. The New York Plan is a

joint effort of the construction industry, New York City,

and New York State to increase the participation of minor-

ity employees in the construction industry, The Plan’s goal

has been to recruit and place in jobs 800 minority trainees

who are above the age of enrollment in the various appren-

ticeship programs in the construction industry.

36. Of the 800 trainee positions, 90 “slots” were allocated

to Local 638, which placed 81 trainees. Currently, 66

trainees are actively employed. The qualifications of those

trainees are assessed by representatives of Local 638, MCA,

and a minority group representative of the Plan. Some of

the Local 638 trainees have received advanced placement

and, consequently, receive the wages of more advanced

apprentices.

37. The New York Plan has not been an unqualified suc-

cess. Trainees are not told that they will automatically be-

App. 50

come members of the A Branch when they complete the pro-

gram, and only one nonwhite has become an A Branch mem-

ber. In January, 1973, New York City withdrew from the

Plan on the grounds that the small number of trainees

placed was unacceptable.

38. In the past, Local 638 has discriminated against

minority workmen in admitting members to the A Branch.

There were no nonwhite journeyman members of the A

Branch until 1967, Since 1967, only five nonwhites have

become journeyman members of the A Branch through the

apprentice program.

DISCRIMINATION IN ADMISSION

TO THE A BRANCH

In issuing the preliminary injunction of January 3, 1972

(in the Government action), this Court found that Local 638

‘had discriminated against nonwhites in admissions to the A

Branch. Both the admission figures for 1972 and the mem-

bership and population statistics indicate that discrimina-

tory practices have not been corrected.

Since January 1, 1972, 160 black and Spanish-surnamed

workers already employed in the steamfitting industry were

admitted to full journeyman status in the A Branch; this

number represents 154 of the 169 workers whose admission

was directed by Order of this Court dated January 3, 1972,

and 6 who were admitted pursuant to agreement between

the Government and Local 638. Other than as a result of

this Order, no nonwhites were admitted to the A Branch in

1972. On the other hand, 156 whites were admitted to the

A Branch without completing the apprenticeship program

and without taking either a written or a practical examina-

tion, and an additional 32 whites were admitted to the A

App. 51

Branch through the apprenticeship program. This practice

of admitting whites by informal standards and without ref-

erence to the apprenticeship program while denying such

admission to nonwhites is discriminatory and unlawful. See

United States v. Bethlehem Steel Corporation, 446 F.2d

652 (2d Cir. 1971).

The membership and population statistics also suggest

that Local 638 has engaged in a pattern and practice of dis-

crimination against nonwhites. The present membership of

the A Branch of Local 638 is 4.5% nonwhite, while the pop-

ulation of New York City and Nassau and Suffolk Counties,

according to available 1970 census statistics, is approxi-

mately 25.09% to 30.06% nonwhite. These figures and the

testimony at trial support the prima facie showing of dis-

criminatory conduct made by the Government at the time

of the issuance of this Court’s preliminary injunction. See

United States v. Wood, Wire and Metal Lathers Interna-

tional Union, Local No. 46, 471 F.2d 408, 414 n.11 (2d Cir.),

cert. denied, 41 U.S.L.W. 3643 (U.S. June 11, 1973) ; 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, 247 (10th Cir. 1970); United

States v. Hayes International Corp., 415 F.2d 1038, 1043

(5th Cir. 1969). Cf. Stone v. F.C.C., 151 U.S.App.D.C. 145,

466 F.2d 316, 332 (1972); Roberts v. St. Louis Southwest-

ern Ry., 329 F.Supp. 973, 977 (E.D.Ark. 1971).

It is not necessary to determine whether Local 638 has

purposefully discriminated in admissions to the A Branch

in order to find its practices unlawful, As the Supreme

Court declared in Griggs v. Duke Power Co., 401 U.S. 424,

432, 91 S.Ct. 849, 854, 28 L.Ed. 2d 158 (1971):

“G]ood intent or absence of discriminatory intent does

not redeem employment procedures or testing mecha-

App. 52

nisms that operate as ‘built-in headwinds’ for minority

groups and are unrelated to measuring job capability.”

See also Chance v. Board of Examiners, 458 F.2d 1167,

1175-1178 (2d Cir. 1972), aff’g 330 F.Supp. 203, 223 (S.D.

N.Y. 1971).

In light of the foregoing, the Court finds that Local 638,

in the past and continuing to the present, has engaged in a

pattern and practice of discrimination against nonwhites in

admission to the A Branch.

Under Title VII, district courts have been vested with

broad power to grant affirmative relief to combat the often

subtle practices of discrimination. United States v. Wood,

Wire and Metal Lathers International Union, Local No.

46, supra, 471 F.2d at 413 & n.9. The evidence at trial, in-

cluding the testimony as to various Armed Forces programs

for training men in basic plumbing and steamfitting skills,”

satisfies the Court that the basic skills of the steamfitting

trade can be readily taught to nonwhites. Moreover, the his-

tory of past discrimination makes it imperative that non-

white workmen should be admitted to the A Branch as soon

as they can demonstrate that they have the necessary skills.

Certainly, graduates of the apprenticeship program

should qualify for admission to the A Branch as soon as

they complete the program. But in addition, a way should

conducts a training program for utilities men covering the basic

skills of pipefitting, plumbing, boile: operation, water treatment,

sanitation, refrigeration, and air conuitioning. The course (termed

the “A School’) includes both classroom and practical instruction

and lasts 14 weeks. Afterwards, the men receive ratings as desig-

nated utilities men, end they are sent out to work with a naval

construction battalion for further “on the job training” for a period

of approximately 2 years. In addition, the Navy maintains a school

(the “B School’) for more advanced training.

App. 53

be devised to admit others who have experience in the

trade and who demonstrate, by means of a practical exami-

nation, that they possess the skills necessary to work as

journeymen steamfitters.

DISCRIMINATION IN WORK REFERRAL

The general practice in the steamfitting industry is for

contractors to maintain steady crews of men, which are

shifted from site to site as construction needs change.

When additional men are needed, site foremen or super-

intendents generally hire men from among those who apply

for work by visiting the sites and contacting the foremen.

Steamfitters learn of openings by contacting A Branch

members who are working on sites needing men or who

hear of openings; occasionally they seek the help of Local

638’s business agents or officers.

Local 638, however, does not maintain a hiring hall, nor

is there any formal referral mechanism or service in the

industry in New York City. Local 638 does not keep formal

records of available jobs nor of steamfitters seeking work.

The foremen and on-site superintendents, who occasionally

hire steamfitters to supplement their regular crews, are for

the most part white,” and, as the evidence at trial indicated,

many are present or former members of the A Branch of

Local 638. In addition, at least 11% of the members of the

A Branch as of the commencement of the present actions

1 The evidence indicates that at the time of the trial, there were

two nonwhite employers and two nonwhite foremen in the New

York area. The evidence also discloses that al! of the present officers

and business agents of Local 638 and all the ofiicers of MCA are

white.

App. 54

are related by blood or marriage to other members of

the union.

While there is no evidence that either Local 638 or MCA

has engaged in purposeful discrimination against non-

whites” the conditions of the industry set forth above, in

combination with the history of discrimination in admis-

sions to the A Branch of Local 638, give whites advantages

in obtaining employment. The result is the preservation

of the effects of past discrimination. Accordingly, the re-

ferral practices of the steamfitting industry must be modi-

fied if past discriminatory patterns are to be corrected. See

United States v. Local 638, Enterprises Association, etc.,

et al., 347 F.Supp. 169, 180-181 (S.D.N.Y. 1972) (Gurfein,

J.), and cases cited therein.

This Court has broad power under Title VII to grant

affirmative relief to correct the subtle and elusive patterns

of discrimination. Cf. Morrow v. Crisler, 479 F.2d 960 (5th

Cir. 1973). A first step should be to require that Local 638

and MCA maintain up to date records of jobs available”

and of steamfitters seeking work. These records should be

open to all interested parties, including employers, MCA,

union business agents and officers, individual steamfitters,

‘2 Compare the situation found to exist in the metallic lathing,

furring, and concrete reinforcing trade, where Judge Frankel

found in numerous specific instances that favoritism for whites

and discrimination against blacks had been proven. United States

v. Wood, Wire and Metal Lathers International Union, Local Union

46, 328 F.Supp. 429, 436-438 (S.D.N.Y. 1971), aff'd, 471 F.2d

408 (2d Cir.), cert. denied, 41 U.S.L.W. 3643 (U.S. June 11, 1973).

' The list of employers under contract with Local 638, which is

now maintained by the union and is furnished to union members,

will serve as a starting point. By itself, however, this list is insuf-

ficient to inform steamfitters looking for work of which contractors

have job opportunities available.

App. 55

and “minority referral services.”** In addition, the Ad-

ministrator to be appointed hereunder, after studying the

industry, will consider and recommend to the Court the

adoption of other affirmative action measures to increase

nonwhite participation in the steamfitting industry.

DISCRIMINATION IN THE APPRENTICESHIP

PROGRAM

The present apprenticeship program conducted by JAC

requires that an apprentice complete five years of training

consisting of 720 hours of classroom work and 9100 hours

of on-the-job experience before he may become a journey-

man member of the A Branch of Local 638. According to

testimony at the trial, the present program was designed

in consultation with the United Association and the Me-

chanical Contractors Association of America and is reg-

istered with the United States Department of Labor and

the New York State Department of Labor.

For the reasons below, however, the Court finds that the

present apprenticeship program does not fully meet the re-

quirements of Title VII. Accordingly, the program will be

altered as described below and will be subject to further

alteration upon the recommendation of the Administrator

to be appointed hereunder.

In determining whether the apprenticeship program

meets Title VII requirements, the starting point is Griggs

v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d

158 (1971):

“ E.g., the Recruitment and Training Program, Inc. (formerly

the Joint Apprenticeship Program of the Workers Defense

League).

App. 56

“The [Civil Rights] Act proscribes not only overt dis-

crimination but also practices that are fair in form,

but discriminatory in operation. The touchstone is

business necessity. If an employment practice which

operates to exclude Negroes cannot be shown to be

related to job performance, the practice is prohibited.”

401 U.S. at 431, 91 S.Ct. at 853.

The initial question is whether plaintiffs have established

that features of the apprenticeship program have a suffi-

ciently discriminatory impact on nonwhite applicants to im-

pose upon the defendants the burden of establishing “job

relatedness.” Plaintiffs must show that the program dis-

advantages nonwhites to a “significant and substantial” de-

gree. Chance v. Board of Examiners, 458 F.2d 1167, 1175

(2d Cir. 1972). If plaintiffs make such a showing, then de-

fendants must demonstrate that the practice is justified not-

withstanding its discriminatory effect. Chance v. Board of

Examiners, supra. This involves demonstrating both a

“business necessity” for the practice and also that its

legitimate ends canont be served by a reasonably available

alternative system with less discriminatory effects. See

United States v. Bethlehem Steel Corp., 446 F.2d 652, 662

(2d Cir. 1971). The requirements of these cases apply with

respect to both the method for selecting apprentices and

the length and content of the program.

A. Selection of Apprentices

The first apprenticeship class was formed by JAC in

1947. Until 1964, there were no nonwhites in the program.

Since 1964, 492 apprentices have begun training, of whom

464 (94.3%) were white, 23 (4.6%) were black, and 5

(1.01%) were Spanish-surnamed. In 1971 (when the last

App. 57

apprentice class was formed), nonwhites constituted ap-

proximately 3.9% of the total number of participants in the

apprenticeship program. Population statistics from the

1970 census indicate that nonwhites constitute approximate-

ly 25.09% to 30.06% of the total population of New York

City and Nassau and Suffolk Counties. This is sufficient

to indicate a prima facie case of discrimination against non-

whites in the selection of apprentices. See United States

v. Wood, Wire and Metal Lathers International Union,

Local No. 46, supra, 471 F.2d at 414 n. 11; Parham v. South-

western Bell Telephone Co., 433 F.2d 421, 426 (8th Cir.

1970), and cases cited therein. Therefore, the burden is on

the defendants to show that the features of the present

selection system are justified, notwithstanding the discrim-

inatory impact on nonwhites.

1. The Written Examination

The stipulated results of the written tests given to ap-

prenticeship applicants since 1967 (but not including the

tests given in 1973) indicate that they have had a differen-

tial impact on nonwhites when compared with the results

for whites. While the passage rate fcr whites was 41.37%,

the passage rate for blacks was 10.37%, and for Spanish-

surnamed applicants, 11.11%.

To show that the tests were “job related,” defendants

produced testimony at trial that the tests were widely used

and professionally designed; that they were administered

by Stevens Institute of Technology, a reputable testing in-

stitution; and that they were reasonably related to measur-

ing the aptitudes they were designed to measure in the

following four areas: verbal meaning, numerical ability,

mechanical reasoning, and spatial relations. This, however,

App. 58

is not sufficient to demonstrate the written examinations’

validity or “job relatedness.”

The Equal Employment Opportunity Commission Guide-

lines on Employee Selection Procedures (“EEOC Guide-

lines”), 29 C.F.R. § 1607, et seq., recognize three methods

of validating the job relatedness of a given test: criterion-

related validity, content validity, and construct validity.’

With respect to the tests given by Stevens Institute, while

there was some evidence of construct validity, there was

no evidence of their criterion-related validity nor that a eri-

terion-related study had been completed or planned. With-

out such evidence, the tests used by JAC from 1964 to

1971 cannot be considered job related, notwithstanding the

difficulty of devising a fair test or of testing it for validity.

Cf. Vulcan Society of New York City Fire Department, Inc.,

et al. v. Civil Service Commission, et al., 360 F.Supp.

1265 (S.D.N.Y., filed June 12, 1973) (Weinfeld, J.).

JAC indicated at trial that in the future it intended to

employ a different test to select apprentices. This test

is part of the General Aptitude Test Battery (“GATB”) of

15 These terms are defined in American Psychological Association,

Standards for Educational and Psychological Tests and Manuals

at 12-15 (1966). Evidence of ecriterion-related validity is pre-

ferred ; it is demonstrated by “comparing the test scores with one or

more external variables considered to provide a direct measure

of the characteristic or behavior in qucstion.” In employment test-

ing, the comparison is made between | st scores and measures of

job performance; if there is a sufficient correlation, then the test

is considered to have validity in predi« mg job performance and

thee to be “job related.” nteut vPrlidity is demonstrated by

“showing how well the content o. the test samples the class

situations or subject matter about which conclusions are to be

drawn.” A test has content validity when the content of the test

matches the content of the job to be performed. Construct validity

is evaluated by “investigating what qualities a test measures, that

is, by determining the degree to which certain explanatory con-

cepts or constructs account for performance on the test.”

App. 59

the United States Training and Employment Service and

has been denominated “S-61R”. A validation study was

done on this test in Texas in 1954, though the study did not

separately determine the effect of the test on minorities.

Cf. EEOC Guidelines, 29 C.F.R. § 1607.5(b)(5). While at

the present time there is no evidence that S-61R may not

discriminate against nonwhites, there is equally no evidence

that it does. It appears that in other contexts courts have

approved use of the GATB. See, e. g., United States v. Lo-

cal 86, Ironworkers, D.C., 315 F.Supp. 1202, 1246 (1970),

all’d, 443 F.2d 544 (9th Cir.), cert. denied, 404 U.S. 984,

92 S.Ct. 447, 30 L.Ed.2d 367 (1971). In view of the lack of

evidence that S-61R has a differential impact on nonwhites

and since JAC does not intend to disqualify apprentice-

ship applicants solely on the basis of their test results, the

Court will permit the use of S-G1R pending a further recom-

mendation from the Administrator to be appointed here-

under,

2. Age Requirements

At present, the apprenticeship program is only open to

those applicants who are between the ages of 18 and 24,

though credit is given for years spent in military service

up to the age of 28. No evidence was presented that this

requirement itself had a discriminatory impact on non-

whites ; however, in view of the history of past discrimination

in the steamfitting industry, this requirement may operate

to exclude from the apprenticeship program nonwhites who

are now too old to apply. Accordingly, provision will be

made so that nonwhites who may have been excluded from

the program in the past but who have nevertheless ac-

quired experience in the trade will have the opportunity

App. 60

during a specified period of time to seek admission to the

A Branch by passing a practical examination or by obtain-

ing the certification of an employer who is a party to the

collective bargaining agreement. In addition, provision will

be made so that applicants between the ages of 18 and 30

may apply to the program. JAC may continue thereafter

to use an age requirement for admission to the apprentice-

ship program, though such requirement will be subject to

modification upon the recommendations of the Adminis-

trator.

3. Educational Requirements

The present requirements are that applicants have a high

school or equivalency diploma. According to 1970 census

statistics, 45.8% of nonwhite males between the ages of

18 and 24 and 76.1% of white males between the ages of 18

and 24 in the New York Standard Metropolitan Statistical

Area had completed high school. This disparity indicates

that such a requirement has a differential impact on non-

whites, operating to exclude a greater number of nonwhites

from the apprenticeship program.

In Griggs v. Duke Power Co., supra, the Supreme Court

found that the requirement of a high school diploma as a

condition of employment in a generating plant did not bear

a demonstrable relationship to successful job performance.

401 U.S. at 431, 91 S.Ct. 849. On the other hand, in United

States v. Local No. 86, lronworkers, supra, the district court

approved the use of the high school diploma requirement

for applicants to apprentice programs in certain construc-

tion trades. 315 F.Supp. at 1246.

On the present evidence, a determination cannot be made

as to whether a high school or equivalency diploma is a

App. 61

job-related requirement for admission to the apprentice-

ship program. It cannot be said, however, that there should

be no educational requirement. Certainly, to understand

the classroom instruction offered during the apprentice-

ship prograni, apprentices must have some schooling. Ac-

cordingly, pending a recommendation by the Administrator

and the adoption of an aflirmative action program, the

present educational requirement will be continued.

4. Physical Ability

The present requirement is that applicants demonstrate

the physical capacity to do the work required of a steam-

fitter. Since no evidence was introduced that this require-

ment had a differential impact on nonwhites and since phys-

ical ability to perform the work is obviously job-related,

this requirement needs no further justification.

5. The Interview

As with the apprenticeship class of 1973, JAC proposes

to have applicants interviewed orally by 2-man teams of

JAC members (one to represent Local 638 and one to

represent steamfitting contractors). In the interview, the

teams will inquire into each applicant’s motivation, educa-

tion, work history, health, and family background. In addi-

tion, the interviewers propose to ask each applicant whether

he has been convicted of a job-related crime within the

past 5 years.

Since the present format of the interview is a new feature

of the selection process, there is no evidence as to whether

it has a differential impact on nonwhites. Unless such a

showing is made, the Court will permit the use of the inter-

App. 62

view in the selection of apprentices, pending a recommenda-

tion from the Administrator.

B. Length and Content of the Apprenticeship Program

The present program is 5 years long and includes both

classroom instruction for one day every two weeks and also

on-the-job experience. The classroom instruction is compre-

hensive, including both theoretical as well as practical

subjects relating to the steamfitting field. The program was

developed with the consultation and approval of Local 638

and MCA.

While there is some evidence that nonwhites drop out

of the program with greater frequency than whites,” the

evidence introduced at trial does not disclose with specificity

what the underlying reasons were. In any event, JAC plans

in the future to decrease to 4 years the length of the

program.

On the present record, a determination of whether the

length and content of the apprenticeship program conforms

to the requirements of Title VII cannot be made. Moreover,

this is a determination better left to the affirmative action

program, which will be adopted after considering the recom-

mendations of the Administrator to be appointed here-

under. Accordingly, pending the adoption of the affirmative

action program, the present apprenticeship program will

be continued in its present form but will be shortened to

4 years.

The dropout figures indicate that 31 white (6.7%) have left

the program as compared with 7 nonwhites (25.0%).

App. 63

MCA’s MOTION TO DISMISS

MCA was named in the government action as a defendant

for purposes of relief only. In the Rios action, however,

MCA was named as a defendant on the merits on the

grounds that it is an “employer” within the meaning of

42 U.S.C. § 2000e(b) or an “employment agency” within

the meaning of 42 U.S.C. § 2000e(c). In addition, the Rios

plaintiffs contend that MCA is properly named as a defen-

dant under 42 U.S.C. $1981 and 4 1983.

Section 2000e(b) provides:

“The term ‘employer’ means a person engaged in an

industry affecting commerce who has twenty-five or

more employees ... and any agent of such a person.”

Section 2000e(c) provides:

“The term ‘employment agency’ means any person reg-

ularly undertaking with or without compensation to

procure employees for an employer or to procure for

employees opportunities to work for an employer and

includes an agent of such a person.”

Section 2000e(a) provides:

“The term ‘person’ includes one or more individuals,

labor unions, partnerships, associations, .. .”

In Williams v. New Orleans Steamship Association, 341

F.Supp. 613 (E.D.La. 1972), the Court held that an asso-

ciation of employers would be treated as a single employer

for purposes of Title VII. There, the complaint named as

defendants the New Orleans Steamship Association, its 28

member companies, and 4 local unions, together with the

International Longshoremen’s Association. Twelve of the

App. 64

member companies moved to dismiss the complaint against

them for lack of jurisdiction inasmuch as they had fewer

than the required number of employees to subject them to

Title VII’s coverage. The Court denied the motion, relying

on EEOC policy that “if establishments are part of an

integrated enterprise, they may be treated as a single

employer for Title VII coverage.” 341 F.Supp. at 615. Plain-

tiffs there had shown that the association controlled employ-

ment on the waterfront and established uniform employ-

ment policies and practices applicable to all member

companies, In addition, the association owned and operated

a central hiring hall at which all longshoremen were hired,

and derived its broad authority by delegation from its mem-

ber companies. In determining whether the 28 companies

should be treated as a single employer through the entity

of the association, the Court followed the practice of the

EEOC in focusing on whether there was an interchange

of employees and centralized control of labor relations.

In view of the national public policy reflected in Title VII

to end employment discrimination based on race, color, or

national origin, see Hackett v. McGuire Brothers, Inc., 445

F.2d 442, 446-447 (3d Cir. 1971), this Court finds the factors

summarized in Williams to be persuasive here. Section

2000e(b) includes within the definition of “employer” both

a person “who has twerty-five or more employees” and “any

agent of such a person.” MCA, as a trade association for

purposes of unified collective bargaining, performs the fune-

tions of an agent for its member coniractors. In addition,

MCA is equally represented with Local 638 on JAC, which

administers the industry’s apprenticeship program. MCA

members employ the major share of the steamfitter work

force in New York City and Nassau and Suffolk Counties,

and the terms of the collective bargaining agreement nego-

App. 65

tiated between MCA and Local 638 prevail throughout the

industry. Though there is no hiring hall for steamfitters in

the New York area, there is sufficient uniformity of employ-

ment conditions, at least with respect to the employment of

nonwhites, to support the conclusion that MCA is a proper

party defendant in the Rios action.

The district court’s decision in Contractors Association of

Eastern Pennsylvania v. Secretary of Labor, 311 F.Supp.

1002 (E.D.Pa. 1970), aff’d, 442 F.2d 159 (3d Cir. 1971),

cited by MCA, held that an association of employers, as

apart from its members, did not have standing to challenge

a regulation issued by the Department of Labor known as

the Revised Philadelphia Plan. MCA argues the same

reasoning should apply here. The Court of Appeals, how-

ever, termed this holding “at least doubtful.” Since the

affected contractors were already before the court and since

they had all been represented by the same attorney, the

Court of Appeals found that “the presence or absence of

the Association as a plaintiff [had] no practical signifi-

cance.” 442 F.2d at 166.

Similarly, in United States v. Bricklayers Local No. 1,

et al., No. C.-71-65 (W.D.Tenn., filed November 29, 1972),

the Court found that the Mason Contractors Association

of Memphis, Inc. (“MCAM”) was not a proper entity

against which relief could be obtained because each of the

twelve members of MCAM were also named individually as

defendants.

In the present case, MCA has greater influence over and

responsibility for employment practices applying to the

industry as a whole than any single employer. Moreover,

the participation of MCA in an affirmative action program

is a necessity if the steamfitting industry is to correct the

discriminatory effects of past employment practices.

App. 66

Having found that MCA was properly made a party

defendant in the Rios action, this Court, however, does

not of course imply that MCA has been responsible ipso

facto for all the employment practices here found unlaw-

fully discriminatory or that it is liable in damages to the

plaintiffs in Rios. Plaintiffs have shown no specific in-

stances of MCA discrimination. Rather, plaintiffs have

demonstrated only that there has been a lack of nonwhite

employment in the industry generally and that, in conse-

quence, the industry’s referral practices must be changed.

For the future, MCA will bear responsibility with Local 638

and JAC to take appropriate affirmative action to correct

this situation.

Accordingly, MCA’s motion to dismiss the Rios action

as to it is denied.”

This disposition makes it unnecessary to consider the other

grounds for relief urged by the Rios plaintiffs, particularly

since little evidence was brought out at trial bearing on

issces other than those presented by the Title VII claims.

Plaintiffs in Rios seek back pay on behalf of members of

the class who can show they have been victims of past dis-

criminatory practices (42 U.S.C. § 2000e-5(g)), and for

costs and attorneys’ fees (42 U.S.C. § 2000e-5(k)). These

issues are reserved for later determination.

The foregoing constitutes the Court’s findings of fact and

conclusions of law. F.R.Civ.P. 52(a).

The Order and Judgment, in the form reviewed with the

attorneys for all parties, is being filed herewith.

It is so ordered.

'TIn view of the foregoing, it is unnecessary to decide if MCA

was properly named as a defendant under 42 U.S.C. § 1981 or

§ 1983.

APPENDIX

: # White (%) # Black (%) Spanish At

Passing Applicants hites Applicants lacks Surnamed Syynamed

Date Test Score Taking Test Passed _ Taking Test_ Passed Taking Test Passed

4/4/67 Differential Aptitude,

Form M—Verbal Reason-

ing, Numerical Ability,

Mechanical Reasoning 50% or 173 41(23.69%) ll 2(18.18%) 3 0

and Space Relation Tests higher

12/16/67 Scat 2A

Multiple Aptitude Tests

Applied Science and

Btial Hele IID 50

pati tions Yor 188 44(23.40%) 31 1(3.22 7 1(142

& I1ID higher *) ®)

7/20/68 Scat 2B

Atkins Spatial I and II

Survey of Mechanical 50% or' 137 37(27%) 25 1(4.0%) 4 1(25.0%)

Insight higher

1/25/69 Henmon-Nelson Form B

Bennett Mechanical 25% or? 157 100(63.69%) 16 2(12.5%) 3 0

Atkins Spatial higher

1/31/70 Scat 2B Parts II and

III Bennett Mechanical

Form T Minnesota Paper 25% or 202 107(52.97%) 16 3(18.75%) 0 0

Form Board AA higher

11/21/70 Bennett Mechanical

Form 8 Multiple

Aptitude Test—#8

Two Dimensions

Differential Aptitude

Test—Form in 25% or 320 158(49.37%) 7 2(28.57%) 1 0

Verbal and Numerical higher

Totals 1177 487(41.37%)* 106 11(10.837%) 18 2(11.11%)

1 In addition, eleven other applicants were offered admission to the program. Eight of these eleven

were chosen on the basis of their cumulative score for all four parts of the exam, from amongst those who

had achieved a score of 40th percentile or higher in each of the four components. In addition, three

other individuals who had achieved a score of 30th percentile or higher on all four components were

invited into the pro

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.