# Petition — Rios v. Enterprise Ass'n Steamfitters, Local No. 638 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0965%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 430 U.S. 911 ## 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) .............- iv 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 2 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) 4 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’ 7 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%) 8 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). 9 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. 10 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 11 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 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 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 12 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. ne 13 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). 14 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. 15 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. 16 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. eS 17 . 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. 18 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 19 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). 20 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). 21 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). 22 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. ee 23 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, v. 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 pe 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 CS 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), v. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0965%3A1. Public record. Not legal advice.