Appendix — UNITED ENGINEERS & CONSTRUCTORS, INC. v. PENNSYLVANIA (Nos. 81-330, 81-280, 81-331, 81-332, 81-333)

Supreme Court brief1981

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18 Reasons for Granting the Writ

fendant class members would have had the right to opt

out of the class. A principal basis for United's position

is that this case, like other defendant class actions, does

not fit within the language of subdivision (b)(2) because

(1) the plaintiffs (the parties “opposing” the defendant

class) could not have “acted or refused to act on grounds

generally applicable to the [defendant] class,” and (2)

plaintifis’ actions or refusals to act could not “thereby”

have made declaratory or injunctive relief appropriate. In

addition, certification under (b)(2) denied United due

process of law, by depriving it of the right to opt out of

the class—a right which Rule 23 gives only to members

of a (b)(3) class. See Rule 23(c)(2).

While several district court decisions have certified

(b)(2) defendant class actions, the only court of appeals

decision which directly considered the question con-

cluded, in accordance with the view expressed by a lead-

ing treatise,"* that as a matter of law defendant class ac-

tions may not proceed under subdivision (b)(2): Paxman

v. Campbell, 612 F. 2d 848, 854 (4th Cir. 1980) (in banc),

cert. denied, 101 S. Ct. 951 (1981).'* Another court of

appeals permitted a (b)(3) defendant class action pre-

cisely for the purpose of giving the defendant class mem-

bers the right to opt out of the class: Appleton Electric

Co. v. Advance-United Expressways, 494 F. 2d 126, 140

& n. 28 (7th Cir. 1974). There is thus a clear conflict

in authority on the propriety of a (b)(2) defendant class

action, a conflict which this Court should resolve.

16. 7A Wright & Miller, Federal Practice & Procedure, § 1775,

at 21-22.

17. In Marcera v. Chinlund, 595 F. 2d 1231, 1238 n. 10 (2d

Cir.), vacated on other grounds, 442 U. S. 915 (1979), the Court

of Appeals permitted a (b)(2) defendant class action but did not

address the objections raised herein.

Conclusion 19

CONCLUSION

For the foregoing reasons, United Engineers & Con-

structors Inc. respectfully requests this Court to grant its

petition for a Writ of Certiorari.

Respectfully submitted,

BERNARD G. SEGAL

Martin WALD

NiIcHOLas N. PRICE

Attorneys for United Engineers

& Constructors, Inc.

SCHNADER, HARRISON, SEGAL & LEwss

1719 Packard Building

Philadelphia, Pennsylvania 19102

Of Counsel.

SUPPLEMENTAL APPENDIX

Statutory Provisions

And Rules Involved

Section 1 of the Civil Rights Act of 1866, codified at

42 U. S. C. § 1981, provides as follows:

All persons within the jurisdiction of the United

States shall have the same right in every State and

Territory to make and enforce contracts, to sue, be

parties, give evidence, and to the full and equal bene-

fit of all laws and proceedings for the security of

persons and property as is enjoyed by white citizens,

and shall be subject to like punishment, pains, penal-

ties, taxes, licenses, and exactions of every kind, and

to no other.

Rule 23(a) of the Federal Rules of Civil Procedure

provide as follows:

(a) Prerequisites to a Class Action. One or

more members of a class may sue or be sued as rep-

resentative parties on behalf of all only if (1) the

class is so numerous that joinder of all members is

impracticable, (2) there are questions of law or fact

common to the class, (3) the claims or defenses of

the representative parties are typical of the claims or

defenses of the class, and (4) the representative par-

ties will fairly and adequately protect the interests of

the class.

Rules 23(b)(2) and (3) of the Federal Rules of

Civil Procedure provides as follows:

(b) Class Actions Maintainable. An action may

be maintained as a class action if the prerequisites of

subdivision (a) are satisfied, and in addition:

(SA. 1)

(2) the party opposing the class has acted

or refused to act on grounds generally applicable

to the class, thereby making appropriate final

injunctive relief or corresponding declaratory

relief with respect to the class as a whole; or

(3) the court finds that the questions of law

or fact common to the members of the class pre-

dominate over any questions affecting only in-

dividual members, and that a class action is

superior to other available methods for the fair

and efficient adjudication of the controversy.

The matters pertinent to the findings include:

(A) the interest of members of the class in indi-

vidually controlling the prosecution or defense

of separate actions; (B) the extent and nature of

any litigation concerning the controversy already

commenced by or against members of the class;

trating the litigation of the claims in the particu-

lar forum; (D) the difficulties likely to be

encountered in the management of a class action.

Rule 23(c)(2) of the Federal Rules of Civil Proce-

due provides as follows:

In any class action maintained under subdivi-

sion (b)(3), the court shall direct to the members of

the class the best notice practicable under the cir-

cumstances, including individual notice to all mem-

bers who can be identified through reasonable effort.

The notice shall advise each member that (A) the

court will exclude him from the class if he so requests

by a specified date; (B) the judgment, whether favor-

able or not, will include all members who do not

request exclusion; and (C) any member who does

not request exclusion may, if he desires, enter an

appearance through his counsel.

(SA. 2)

) a & | Office-Supreme Court, US. |

ra 3 30 Ta ae

2 I. -3 3 2. AUG 14 (961

at-a ALEXANO-R L SYEVAS

Nos. ; asm

Supreme Court of the United States

October Term, 1981

THE CONTRACTORS ASSOGIATION OF EASTERN

PENNSYLVANIA

THE UNITED CONTRACTORS ASSOCIATION

GLASGOW, INC.

BECHTEL POWER CORPORATION

UNITED ENGINEERS AND CONSTRUCTORS INC.

Petitioners,

COMMONWEALTH OF PENNSYLVANIA and

RAYMOND WILLIAMS, et al.

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

APPENDIX TO PETITIONS FOR CERTIORARI

Joun J. McAuezese, Jr. Bernarp G. SEGAL

Tuomas J. McGo.prick Martin WALD

Louis A. MINELLA Nicuo.as N. Price

Cunnirr, Bray & MCALEESE ScHNADER, HaRRIsON, SEGAL

Suite 240 & Lewis

One Bala Cynwyd Plaza 1719 Packard Building

Bala Cynwyd, PA 19004 Philadelphia, PA 19102

Petitioners Attorneys for Petitioner

ontractors Association United Engineers &

Eastern Pennsylvania Constructors Inc.

he United Contractors

Association Rosert W. Kopp

Glasgow, Inc. Davw M. PELtow

Bonn, SCHOENECK & KiInc

One Lincoln Center

Syracuse, NY 13202

Att for Petitioner

international Printing Go., 711 So. S0th St., Phila., Pa. 19143 — Tel. (215) 727-8711

TABLE OF CONTENTS OF APPENDIX

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Appendix.

JUDGMENT OF THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

UNITED STATES COURT OF APPEALS

For THE TuHirp Circuir

Nos. 80-2073/74 & 80-2161/62/63

COMMONWEALTH OF PENNSYLVANIA and RAY-

MOND WILLIAMS, WILLIE McKAY, MARION J.

EADDY, RANDOLPH HUGHES, JR., ARIEL

BROWNLEE, WILLIAM BOSTIC, KENNETH

HOWARD, ALPHA CHRISTMAS, RONALD RICH-

ARDSON, CLARENCE WINDER, RONALD

CRAWFORD, and FRANK GILCHRIST, on their

own behalf and on behalf of all others similarly

situated,

ov.

LOCAL UNION 542 INTERNATIONAL UNION OF

OPERATING ENGINEERS; OPERATING EN-

GINEERS JOINT APPRENTICESHIP AND TRAIN-

ING COMMITTEE OF PHILADELPHIA, EAST-

ERN PENNSYLVANIA, and the STATE OF

DELAWARE; GENERAL BUILDING CONTRAC-

TORS ASSOCIATION OF EASTERN PENNSYL-

VANIA, UNITED CONTRACTORS ASSOCIATION,

and PENNSYLVANIA EXCAVATING CONTRAC-

(Al)

A2 Court of Appeals Judgment

TORS ASSOCIATION, on their own behalf and on

behalf of all others similarly situated,

and

GLASGOW, INC., on its own behalf and on behalf of all

others similarly situated,

The Contractors Association of Eastern Pennsylvania, et al.,

Appellants in Nos. 80-2073/74 & 80-2161

United Engineers & Constructors Inc., nonparty member

of the defendant class in the above-captioned action,

Appellant in No. 80-2162

Bechtel Power Corporation, an unnamed member of the

defendant class of contractor-employers in the above-

captioned matter,

Appellant in No. 80-2168

APPEAL FROM THE UNITED States Districr Court

For THE EASTERN District OF PENNSYLVANIA

(D. C. Civil No. 71-2698)

Present: Serrz, Chief Judge and AupisErt, GrisBons,

Hunter, Weis, and Gartu, Circuit Judges

JUDGMENT

This cause came on to be heard on the record from the

United States District Court for the Eastern District of

Pennsylvania and was argued by counsel on February 24,

1981 and later reargued en banc on May 12, 1981.

On consideration whereof, it is now here ordered and

adjudged by this Court that the orders of the said District

Court entered August 8, 1979, November 7, 1979, March

25, 1980, March 26, 1980, May 30, 1980, June 10, 1980,

Court of Appeals Judgment A3

June 17, 1980 and June 27, 1980, be, and the same are

hereby affirmed, all in accordance with the opinion of this

Court.

[2]

Costs taxed against appellants.

ATTEST:

SALLY Mrvos

Clerk

May 19, 1981

Court of Appeals Opinion

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

UNITED STATES COURT OF APPEALS

For THE Tuirp Circuit

Nos. 80-2073/74 & 80-2161/62/63

COMMONWEALTH OF PENNSYLVANIA and RAY-

MOND WILLIAMS, WILLIE McKAY, MARION J.

EADDY, RANDOLPH HUGHES, JR., ARIEL

BROWNLEE, WILLIAM BOSTIC, KENNETH

HOWARD, ALPHA CHRISTMAS, RONALD

RICHARDSON, CLARENCE WINDER, RONALD

CRAWFORD, and FRANK GILCHRIST, on their

own behalf and on behalf of all others similarly

situated,

LOCAL UNION 542, INTERNATIONAL UNION OF

OPERATING ENGINEERS; OPERATING ENGI-

NEERS JOINT APPRENTICESHIP AND TRAIN-

ING COMMITTEE OF PHILADELPHIA, EAST-

ERN PENNSYLVANIA, and the STATE OF

DELAWARE; GENERAL BUILDING CONTRAC-

TORS ASSOCIATION OF EASTERN PENNSYL-

VANIA, UNITED CONTRACTORS ASSOCI-

ATION, and PENNSYLVANIA EXCAVATING

Court of Appeals Opinion A5

CONTRACTORS ASSOCIATION, on their own be-

half and on behalf of all others similarly situated,

and

GLASGOW, INC., on its own behalf and on behalf of

all others similarly situated,

The Contractors Association of Eastern Pennsylvania,

et al.,

Appellants in Nos. 80-2073/74 & 80-2161

United Engineers & Constructors Inc.,

nonparty member of the defendant class in the

above-captioned action,

Appellant in No. 80-2162

[2]

Bechtel Power Corporation, an unnamed member of the

defendant class of contractor-employers in the

above-captioned matter,

Appellant in No. 80-2163

AppEAL FROM THE UNITED States Districr Court

FOR THE EASTERN District OF PENNSYLVANIA

(D. C. Civil No. 71-2698)

Argued February 24, 1981

Before: Weis and Gartn, Circuit Judges and

Miter, Judge, Court of Customs and Patent Appeals °

Reargued May 12, 1981 In Banc

Before: Serrz, Chief Judge,

AupIserT, Grspons, Hunter, Weis, and Gartu,

Circuit Judges

*The Honorable Jack R. Miller, United States Court of

Customs and Patent Appeals, Washington, D. C., sitting by

designation.

A6 Court of Appeals Opinion

(Filed May 19, 1981)

John J. McAleese, Jr. ( Argued )

Thomas J. McGoldrick

D. Richard Powell, Jr.

Louis A. Minella

Cunniff, Bray & McAleese

240 One Bala Cynwyd Plaza

Bala Cynwyd, Pa. 19004

Attorneys for Appellants

Glasgow, Inc., and

The Contractors Ass'n of

Eastern Pennsylvania, et al.

Martin Wald (Argued )

Nicholas N. Price

Schnader, Harrison, Segal & Lewis

1719 Packard Bldg.

Philadelphia, Pa. 19102

13]

Attorneys for Appellant

and Appellee United

Engineers &

Constructors Inc.

Robert W. Kopp (Argued )

Raymond W. Murray, Jr.

David M. Pellow

Bond, Schoeneck & King

One Lincoln Center

Syracuse, N. Y. 13202

Attorneys for Appellant

and Appellee Bechtel

Power Corp.

Court of Appeals Opinion

John G. Kester (Argued )

John J. Buckley, Jr.

Williams & Connolly

Harold I. Goodman (Argued )

Germaine Ingram

Community Legal Services, Inc.

Sylvania House

Juniper and Locust Streets

Philadelphia, Pa. 19107

Attorneys for

Individually Named and

Class Appellees

Joel M. Ressler

Louis J. Rovelli

Margaret Hunting

Deputy Attorneys General

LeRoy S. Zimmerman

Attorney General

[4]

A8 Court of Appeals Opinion

LeRoy D. Clark

General Counsel

Constance L. Dupre

Acting Associate

General Counsel

Vincent Blackwood

Kenneth J. Burchfiel

Attorneys

Equal Employment

Opportunity Commission

2401 E Street, NW

Washington, D. C. 20506

Attorneys for Amicus

Curiae EEOC

OPINION OF THE COURT

Per CurIAM:

To the extent that the judgment of the district court

is challenged by these appeals, it is affirmed by an equally

divided court.

A True Copy:

Test:

Clerk of the United States Court of Appeals

for the Third Circuit

District Court Opinion A9

[329] °

OPINION OF THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA and RAY-

MOND WILLIAMS et al., on their own behalf and

on behalf of all others similarly situated

LOCAL UNION 542, INTERNATIONAL UNION OF

OPERATING ENGINEERS, Operating Engineers

Joint Apprenticeship and Training Committee of

Philadelphia, Eastern Pennsylvania and Delaware,

General Building Contractors Association, Inc., Con-

tractors Association of Eastern Pennsylvania, United

Contractors Association, and Pennsylvania Excavating

Contractors Association, on their own behalf and on

behalf of all others similarly situated, Glasgow, Inc.,

on its own behalf and on behalf of all others similarly

situated.

Civ. A. No. 71-2698.

United States District Court,

E. D. Pennsylvania,

Civil Division.

Nov. 30, 1978.

[333] °

Harold I. Goodman, M. Taylor Aspinwall, Germaine

Ingram, Andrew S. Price, Bruce Endy, Community Legal

* These page references are to 469 F. Supp. 329 (1978).

Al0 District Court Opinion

Services, Philadelphia, Pa., Robert J. Reinstein, Philadel-

phia, Pa., for plaintiffs Raymond Williams, et al.

Edward G. Beister, Jr., Acting Atty. Gen., D. Bruce

Hanes, Asst. Atty. Gen., Burton D. Morris, Deputy Atty.

Gen., Commonwealth of Pennsylvania, Dept. of Justice,

Harrisburg, Pa., M. Faith Angell, Deputy Atty. Gen., Mar-

gret E. Anderson, Asst. Atty. Gen., Philadelphia, Pa.,

Thomas J. Oravetz, Deputy Atty. Gen., Harrisburg, Pa., for

plaintiff Com. of Pennsylvania.

Andrew F. Mimnaugh, Philadelphia, Pa., for un-

named member of defendant class Barger Const. Co., Inc.

Abraham E. Freedman, Freedman, Borowsky & Lorry,

Philadelphia, Pa., Marvin I. Barish, Marvin Levin, Phila-

delphia, Pa., for defendants Local 542.

Robert G. Kelly, Jr., Philadelphia, Pa., John J.

McAleese, Jr., Thomas J. McGoldrick, Bala Cynwyd, Pa.,

for defendants Glasgow, et al.

Nicholas Price, Martin Wald, Schnader, Harrison,

Segal & Lewis, Philadelphia, Pa., for unnamed member of

defendant class United Engineers & Constrs. and Catalytic.

Arthur R. Littleton, Dennis J. Morikawa, Morgan,

Lewis & Bockius, Philadelphia, Pa., for unnamed member

of defendant class Flour.

Robert W. Kopp, Bond, Schnoeneck & King, Syracuse,

N. Y. for unnamed member of defendant class Bechtel

Corp.

TABLE OF CONTENTS

PAGE

I. INTRODUCTION 335 °

II. Fovprncs 339 °

A. The Hiring System 339 °

B. The Philadelphia Plan 342 °

C. The Benjamin Franklin Programs I and II 345°

* These page references are to 469 F. Supp. 329 (1978).

District Court Opinion

D. Procedural History

E. The Delays and Contempt Issues Involving

Abraham Freedman, Esquire

F. The Named Plaintiffs as of Certification

G. Statistical Evidence

1. Membership Disparities

2. Discrimination in Entry

3. Disparities in Hours and Wages

4. Referrals

H. Other Proof

1. Entry Discrimination

2. Individual Testimony

(a) Samuel Long

(b) Willis Fox

(d) John Dent

(e) Elijah Dukes

[334] °

II. Frnprincs—Continued

H. Other Proof—Continued

2. Individual Testimony—Continued

(f£) Charles Iseley

(g) John Dodson

(h) Lloyd Hudson

(i) Duane B. Johnson

(j) George Benjamin

(k) Timothy A. Roundtree

Ail

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PAGE

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* These page references are to 469 F. Supp. 329 (1978).

Al2 District Court Opinion

(1) Cleveland Allen

(m) Conclusion

I. Rebuttal

1. Experts’ Statistical Analysis

a. Labor Pool

b. Features of Entry

c. Hours and Wages

i. Dr. Wachter

ii. Dr. Perl

iii. Dr. Dempster

d. Conclusion

2. Other Rebuttal of Defendants

J. The Case Against JATC

K. Glasgow, Inc. and the Associations

III. Lecat ConcLusions

A. Appropriateness of Plaintiffs’ Class: Con-

siderations of Standing and the Require-

ments of Rule 23

1. Adequacy and Standing

2. Rule 23(b)

3. Subclassing

4. Motion for Amendment of Plaintiffs’

Class Definition

B. Substantive Claims

1. Claims Against the Union

a. Title VII

i. Title VII Jurisdictional Issues

368 °

369 °

370 °

375 °

377 °

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379 °

380 °

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384 °

386 °

387 °

389 °

390 °

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394 °

* These page references are to 469 F. Supp. 329 (1978).

District Court Opinion

(a) Conciliation

(b) Scope of Suit

ii. The Merits of the Title VII Claim

(a) Intentional Discrimination

(b) Disparate Impact

Discrimination

b. Section 1981 Claims Against Union

c. Section 1985(3)

2. Claims Against Associations and

Contractors

a. Section 1981

1. The NLRA Cases

2. Civil Rights Cases Rejecting

Vicarious Employer Liability

[335] °

III. Lecax Conc.ustons—Continued

B. Substantive Claims—Continued

a. Section 1981—Continued

3. Cases In Which an Employer or

Employer's Association Was Held

Liable for Discrimination Arising

From Terms of Contract

4. Doctrine of Respondeat Superior

(a) Analogies to Civil Rights Suits

Against Municipalities or Su-

pervisory Personnel

(b) The Application of the Doc-

trine of Respondeat Superior

Al3

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PAGE

407 °

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411°

* These page references are to 469 F. Supp. 329 (1978).

Al4 District Court Opinion

b. Employers and Associations Potential

Liability Under § 1985(3) 413°

C. Appropriateness of the Defendant Class as to

Section 1981 Claims 414°

1. Rule 23(a) 414°

2. Rule 23(b) 415°

3. Standing 417°

4. Personal Jurisdiction Over the Defendant

Class 419°

OPINION

A. Leon HiccinsotruaM, Jr., Circuit Judge.°°

I. INTRODUCTION

This employment discrimination suit was instituted in

1971 by twelve black plaintiffs on behalf of a class of

minority workers involved in or desiring admittance to the

operating engineer trade in Eastern Pennsylvania and

Delaware. Also a named plaintiff is the Commonwealth

of Pennsylvania, suing on behalf of its citizens and the

above-described class. Defendants in this action are as

follows: Local 542 of the International Union of Operating

Engineers; a class assertedly represented by Glasgow, Inc.,

consisting potentially of more than 1400 construction con-

tractors and employers receiving referrals through Local

-542’s exclusive hiring hall; four construction trade associa-

tions which represent the employers in contract negotia-

tions; * and the Joint Apprenticeship Training Committee

* These page references are to 469 F. Supp. 329 (1978).

** United States Circuit Judge sitting by designation.

1. Those trade associations are: Contractors Association of

Eastern Pennsylvania; General Building Contractors Association,

Inc.; Pennsylvania Excavating Contractors Association; and United

Contractors Association.

District Court Opinion Al5

(“JATC”), an organization created by Local 542 and the

trade associations for the induction of new operating engi-

neers. This opinion constitutes the findings of fact and

conclusions of law relevant to the liability stage of the

trial of this massive and intricate case.

The active claims of plaintiffs’ class include a Title

VII, 42 U.S. C. § 2000e et seq., employment discrimination

claim against all defendants based upon alleged discrimi-

nation in the membership practices of 542, the operation

of its referral system, and the hours and wages of minority

operating engineers. The foundation of this claim also

serves as the basis for a 42 U. S. C. § 1981 claim and a

conspiracy claim under 42 U. S. C. § 1985(3) against all

defendants, an unfair representation claim under 29

U. S. C. § 158 against Local 542, and a Title VI discrimi-

nation claim against all those of the defendants who have

deprived minority in-

[336] °

dividuals of the benefits of federally funded construction

projects. Local 542’s function as an exclusive hiring hall

in its geographical jurisdiction is at the center of each of

the above claims; however, plaintiff asserts that the con-

tractors and associations, having agreed to such a system

in 1961 or thereafter, are co-participants with the union

and cannot be absolved from liability for discrimination

in the operation of the hiring hall. Although plaintiffs

have frequently characterized their action as being based

on intentional discrimination they are not limited to this

standard particularly in view of the broad allegations in

the complaint. I must therefore consider plaintiffs’ fac-

tual claims in light of the full range of potential liability

under the civil rights statutes involved.

Of course, a very significant aspect of the instant

suit is its class action status. As originally certified on

* These page references are to 469 F. Supp. 329 (1978).

Al6 District Court Opinion

March 13, 1972, plaintiffs’ class was divided into the fol-

lowing subclass descriptions:

(a) all minority group members who currently have

the skills, when measured by objective standards,

of at least a journeyman operating engineer and

who work, or may work, within the territorial

jurisdiction of defendant Local 542;

(b) all minority group members who are partially

skilled, when measured by objective standards, to

perform operating engineers work and who work,

or may work, within the territorial jurisdiction;

or may wish, to acquire skills in the operating

engineers trade and who are physically capable

of acquiring such skills and performing operating

engineers work within the territorial jurisdiction

of defendant Local 542.

Among a number of threshold issues in this case, I also

have before me a request by plaintiffs to recertify plain-

tiffs’ class as well as arguments against certification of

plaintiffs’ class as now constituted and as proposed by

plaintiffs. These arguments by defendants, and several

unnamed members of the defendant class which this court

has permitted to appear post-trial as “nonparties,” * assert,

inter alia, the inadequacy of named plaintiffs as class rep-

resentatives, the lack of standing of named plaintiffs, and

the non-commonality and atypicality of issues, claims and

defenses.

Other threshold issues before me now are plaintiffs’

request for recertification of the defendant class so as to

2. Although notice was provided out of an abundance of

caution to protect the interests of fairness, no unnamed members

sought to intervene in this action.

District Court Opinion Al7

comport with the applicable statutes of limitations, and

the request of non-parties for decertification of the de-

fendant class of contractors. As originally certified on

March 13, 1972, that defendant class now consists of:

(a) all contractor associations which are, or may be,

parties to a collective bargaining agreement with

Local 542, International Union of Operating

Engineers; and

(b) all contractor-employers who are subject to col-

lective bargaining agreements with Local 542,

International Union of Operating Engineers, and

who, pursuant to such agreements, employ or

will employ operating engineers referred to them

by defendant Local 542.

There are an assortment of objections to certification

of the defendant class including the claimed lack of per-

sonal jurisdiction over the unnamed class defendants,

plaintiffs’ lack of standing to assert claims against a de-

fendant class and the asserted inappropriateness of de-

fendant class certification under rule 23(b) (2), F. R. Civ.

For the reasons expressed below I hold that this

action is maintainable as both a plaintiff and defendant

class action, given the modifications as will be set forth.

Furthermore, we find the defendant 542, JATC, and the

defendant class and associations liable injunctively.

The issue of individual monetary recovery as well as

the possible issue of class compo-

[337] °

sition for purposes of damage relief should not now be de-

cided but must await Stage II of this litigation in accord-

* These page references are to 469 F. Supp. 329 (1978).

A18 District Court Opinion

ance with this court’s bifurcation order. The issue of dam-

ages, if any, owed to the plaintiffs who initiated this suit

or to any members of the purported class involves a sep-

arate evidentiary inquiry and a further legal analysis

which would not be appropriate at this stage. The case

was purposely bifurcated with all parties recognizing that

.n a variety of ways, upon a determination of liability, the

discovery and trial of the damage issues could be ex-

pedited. It would be unnecessarily costly to have ex-

panded and made this litigation even more protracted by

considering the damage issues prior to the time when the

correctness of my present findings and judgment on the

liability issues have been fully subjected to final appellate

review. After a final decree has been entered on the lia-

bility issues, I will grant a petition under 28 U. S. C.

§ 1292(b) certifying that an immediate appeal from the

order “may materially advance the ultimate termination

of the litigation . . .”

The facts of the instant case, as detailed below,

demonstrate the complexity and subtlety of the interrela-

tionship of race, collective bargaining, craft unions, the

employment process and that ultimate goal—real jobs

which offer adequate hourly compensation and reasonably

consistent pay checks through the year. Here there are

many contradictions between pronounced policies and

actual practices. Also there are some aspects of viral

nepotism at its worst which had a disproportionate impact

against blacks but also affected many whites. Some of the

practices cannot be categorized as exclusively beneficial

to all whites or as exclusively harmful to all blacks. Thus

there has to be a careful weighing of the relative racial

impacts of many practices and policies.

Here we have not been confronted with policies

which announce publicly doctrines of racial exclusion or

District Court Opinion Al9

segregation as has occurred in some cases in the nation’s

past where such doctrines were announced either by legis-

lative fiat or by proclaimed union or corporate policy.

See Griggs v. Duke Power Company, 401 U. S. 424, 91

S. Ct. 849, 28 L. Ed. 2d 158 (1971); Brown v. Board of

Education, 347 U. S. 483, 74 S. Ct. 686, 98 L. Ed. 873

(1954); Derrick A. Bell, Jr., Race, Racism and American

Law (1973); Sterling D. Spero and Abram L. Harris, The

Black Worker (1931, reprint ed. 1968); Herbert R. North-

rup, Organized Labor and the Negro (1944); Robert C.

Weaver, Negro Labor (1946); H. R. Northrup et al.,

Negro Employment in Basic Industry (1970); Negro

Employment in Finance (1970), vol. 2; Negro Employ-

ment in Public Utilities (1970), vol. 3; Negro Employment

in Southern Industry (1970), vol. 4; Negro Employment

in Land and Air Transportation (1971), vol. 5. See also

House Committee on Education and Labor, H. R. Rep.

No. 718, 89th Cong. Ist sess. 1965; Herbert Hill, “Racial

Inequality in Employment: The Patterns of Discrimina-

tion,” THe ANNALS 357 (January 1965), pp. 30-47. In

some instances some of the union members seemed con-

cerned about increasing the opportunities for minority

members; yet more often than not there was discrimina-

tion on a more sophisticated and subtle level, even though

the consequences could be almost as devastating as the

most crude form of discrimination. At the critical level of

viable jobs and equal opportunities, there were intentional

and persistent efforts to exclude and discourage most of

the minorities who, but for their race, would have been

considered for entry into the union and for the more lucra-

tive jobs.

Of course labor unions and the collective bargaining

process are part of the American democracy. This process

has improved dramatically the options of many. As Pro-

fessor Archibald Cox has observed:

A20

District Court Opinion

The purpose and effect of every labor organiza-

tion is to eliminate competition in the labor market.

Chief Justice Taft’s classic statement observed:

“[Labor unions] were organized out of the neces-

sity of the situation. A single employee was

helpless in dealing with an employer. He was

dependent ordinarily on his daily wage for the

mainte-

[338] °

nance of himself and family. If the employer

refused to pay him the wages that he thought

fair, he was nevertheless unable to leave the

employ and to resist arbitrary and unfair treat-

ment. Union was essential to give laborers an

opportunity to deal in equality with their em-

ployer.”

Each bricklayer’s local seeks to control the supply of

bricklayers’ services available to contractors within

its geographical jurisdiction. United Steelworkers of

America controls the supply of labor available to

United States Steel Corporation. In this sense every

union is an avowed monopolist.

Cox, Labor and the Antitrust Laws—A Preliminary Analy-

sis, 104 U. Pa. L. Rev. 252, 254 (1955) (footnote omitted ).

Similarly, after quoting the above passage, Judge Al-

disert has recently observed that:

“the very essence of the labor movement, as protected

by the national labor policy, hinges on labor's s ——

to seek monopoly in appropriate spheres . .

Muko v. Southwestern Pennsylvania Builders and Con-

struction Trades Council, No. 75-979, slip op. at 6 (3d Cir.,

August 11, 1978).

* These page references are to 469 F. Supp. 329 (1978).

District Court Opinion A21

Yet it is clear that by the nation’s civil rights laws

there are limits to which labor’s “avowed monopolistic”

powers can be extended. Here the union (with the in-

volvement of the contractors) has gone beyond the “ap-

propriate spheres” of national labor policy and conse-

quently has breached the overriding civil rights laws.

Tragically, blacks and other minorities seeking entry most

often were not aided but instead were deterred by will-

ful manipulation of the collective bargaining process.

Measured by the actual results, the antidiscriminatory

proclamations have proven to have been mere rhetoric.

During his campaign for election as business manager Rob-

ert Walsh’s platform was “fair play.” Yet, during his ad-

ministration viable, equal job options were most often de-

nied to minorities, and those relatively few minorities who

received the option were seldom granted the more lucra-

tive long term jobs.

Many explanations are proffered for this despicable

state of affairs. Some assert that the racial disparities were

caused merely by nepotism or union politics. Yet, while it

may seem commendable for fathers to pass on to their

sons and to their other relatives a heritage of lucrative

employment, a union of elected officials all of one race

cannot use their power to implant racially chauvinistic

and discriminatory systems and union power politics create

no special immunity from civil rights law enforcement.

With intensity some employers urge that they agreed to

the exclusive hiring hall system solely as a matter of eco-

nomic survival at the end of a destructive ten week strike

when the union would not compromise for any other hir-

ing alternative. Yet economic pressures, however strong

and harmful they might be, do not create immunity for

employers, at least not in this liability phase.

Finally, it must be emphasized that the economic

stakes here are high. Members of the union could earn

A22 District Court Opinion

from $5.93 to $12.35 per hour. Some earned more than

$30,000 and a few more than $40,000 per year. By now

the average wage for the actively employed member is in

excess of $15,000 per year. Despite its monopolistic pow-

ers, no one union is required to open its doors fully to

admit everyone who applies—for to do so would reduce

the financial options of the more senior union members.

Nevertheless, a union cannot manipulate the collective

bargaining system in claiming that it is restricting entry

options to protect the general economic interest of its

members while at the same time opening the back doors

manipulatively to permit its special friends, relatives and

others to enter through a racially discriminatory system.

In Local 542, there was extraordinary manipulation of the

process by many individuals who maneuvered the system

for their relatives or their special friends—most of whom

were white. Black veterans who had served their country

with honor and distinction by proficientiy operating en-

gineering equipment during the Vietnam War and World

[339] °

War II were dissuaded persistently from applying to the

union. Yet the young sons of the business manager Robert

Walsh could enter the union with ease: one of Walsh's

sons entered at the age of 18 and by his second year was

earning more than $43,000 per year. The son of the hir-

ing hall dispatcher at the age of 18 entered without any

prior experience as an operating engineer's apprentice or

oiler and in violation of the union rules. This pattern of

easy, inappropriate entry and assignment to better jobs

was repeated time and time again for the special friends

of the union. See generally Plaintiffs’ Schedule On Union

Nepotism, Volumes, I, II and ill. Union officials ma-

neuvered the system so that their friends and relatives

* These page references are to 469 F. Supp. 329 (1978).

District Court Opinion A23

achieved entry and better jobs while those on the ouiside

of the union power structure—including both blacks and

whites—were deterred, delayed or refused union mem-

bership and access to the hiring hall. Though a relatively

few blacks benefited, the totality of the union’s conduct

demonstrates that it sought to aid a selfish cause in part

by a deliberate policy of resistance to equal minority par-

ticipation as is shown by the deceptions contained in the

defendaats’ 1968 Affirmative Action Agreement, discussed

below, and by a series of other specific acts which pre-

cluded minorities, mostly blacks, from getting the options

they otherwise might have had.

II. THE FINDINGS

A. The Hiring System

An examination of the facts in this case must begin

with an elaboration upon the structure and operation of

Local 542.

In 1961 Local 542 concluded a bargaining agreement

with the defendants Contractors Association of Eastern

Pennsylvania (“CAEP”) and General Building Contrac-

tors Association (“GBCA”) according to which 542 be-

came the exclusive mechanism through which operating

engineers were to be employed. Another association, the

Delaware Construction Association, had agreed to the ex-

clusive hiring hall earlier in 1961. Prior to 1961 the ne-

gotiating trade associations had resisted efforts to establish

an exclusive hiring hall. Given the reality of a ten week

strike by 542 members and the prospect of serious adverse

economic consequences from a continuing strike, the

CAEP and GBCA agreed to the union’s proposal.*

3. This agreement was negotiated by the CAEP and GBCA

on behalf of its members. Not all employers were members;

however, the defendant class is limited to all employers who have

adhered to the agreement.

A24 District Court Opinion

The hiring hall referral system thus formulated on

paper is essentially the same one as is now embodied in

the collective bargaining agreement. (I am not suggest-

ing that the hiring hall in fact operated as it was supposed

to or that hiring classifications were uniformly honored. )

By the terms of the hiring hall agreement 542 is to main-

tain lists of operating engineers, or would-be engineers,

in four basic categories (“groups”) which are defined by

measuring hours of recent construction experience. When

an employer has need of an operating engineer he will

notify 542 and within 24 hours should receive a referral.

The key provisions of the Bargaining Agreement (“agree-

ment”) are as follows: *

GROUP I

Group I shall consist of all those applicants who

are under Group I and who have qualified for same

as of May 1, 1963, and all applicants who have

worked within the geographical area of the Eastern

half of the State of Pennsylvania and the State of

Delaware five thousand (5,000) hours within the past

eight (8) years; or two thousand five hundred (2,500)

hours for the past three (3) years. All applicants

shall be entitled to priority under Group I who would

have qualified for any of the foregoing classifications

were it not for absence due to military service, or

service as a Union official, or disability within the

provisions of Local 542 Operating Engineers Wel-

fare Plan, ...

[340] °

Group I-A

[This classification added in 1968 by amendment]

4. The basic terms appear consistently in the bargaining

agreements having a bearing on this case.

* These page references are to 469 F. Supp. 329 (1978).

District Court Opinion A25

Group 1-A—Shall be reserved for such jobs that

are not physically demanding. This normally would

be equipment such as compressors, welding machines,

generators, heaters, etc. But recognizing that such or

similar jobs may be physically demanding in certain

instances, the Employer will discuss the details of such

or similar jobs with the Union in order to place the

job in the proper category.

Registration on Group I-A out-of-work list will

be voluntary and will be restricted to those who are

fifty (50) years of age or over, and who have been

continuously in Group I for a period of fifteen (15)

years or more, or those who are physically handi-

capped and who are unable to pursue their normal

occupational classification. . . .

Group II

Group II shall consist of all those applicants who

qualify for any of the following categories: All appli-

cants who have worked within the geographical area

of the Eastern half of the State of Pennsylvania and

the State of Delaware twenty-five hundred (2,500)

hours within the past twelve (12) years; four hun-

dred (400) hours per year during any three of the

past five years; or four hundred (400) hours during

the past year.

Group III

Group III shall consist of all other applicants for

employment. [Article II, § 2(e).]

According to Article II, §2(f), the union is to maintain

a separate list for each group. One’s position on the list

depends on the date of his registration certifying that he is

available for work. Under section g the contract provides

A26 District Court Opinion

that the Group I list is to have priority. After Group I

listees have been placed, Groups I-A, II, and III are to

be used. The agreement provides one basic exception

from the requirement to refer according to date of regis-

tration and that is with respect to jobs requiring special

skills. If an employer needs a specially skilled person,

such as a bulldozer operator or a crane operator, the hiring

hall is empowered to select such a person even if it means

bypassing persons on the list ahead of him not possessing

the requisite skills.°

Although the hiring hall constitutes the exclusive re-

ferral system, each employer has the right, based on his

determination of competency, to refuse to employ one who

is referred. If an employer makes such a refusal he may

receive another referral which in turn he can accept or

refuse. Under Art. II, § d, however, selection for referral

shall be made without discrimination.°

5. Other restrictions pertaining to referral are the three refusal

rule and the 90 day no-recall rule. An operating engineer who

refuses without excuse an offer of employment three consecutive

times is to be placed at the bottom of his out-of-work list. No

employer is to recall outside the referral system after 90 days of

separation.

6. Prior to May 1, 1971, Art. II, § 2(d), expressly mentioned

only discrimination on grounds of non-membership in the union.

The provision read as follows:

(d) The selection of applicants for referral to jobs shall

be on a non-discriminatory basis and shall not be based on,

or in any way, affected by, Union membership, by-laws,

regulations, constitutional provisions or any other aspect or

obligation of Union membership, policies or requirements,

except as outlined in this Agreement.

After May 1, 1971, a provision was added:

No employee, or applicant for employment, shall b« discrim-

inated against by reason of race, religion, color, or national

origin. [Art. II, §1.]

District Court Opinion A27

As originally constituted, for all purposes of this suit,

the divisions of 542 consisted of the parent body, the A

and B branches, and the C and D branches. A Registered

Apprenticeship Program was also instituted in 1966. The

parent body was to consist of experienced operating engi-

neers. The A branch members were to be unskilled oilers,

beginners in the trade; and B branch members were to

be the operators of earth-mov-

[341] °

ing equipment. The C branch members were to work in

yards and shops and D branch members were surveyors:

neither of these two branches were directly subject to the

hiring hall system negotiated and agreed to by the con-

tractor associations. Registered Apprentice (RA) entrants

were to include those novices, frequently doing unskilled

work as oilers of machinery, who seek entry into the union’s

construction branches. This entry could be achieved upon

attaining the status of journeyman operator.

Until 1972, A, B, or C branch members could not run

for or hold union office, and only parent body men’ were

eligible for appointment as master mechanics, a supervisory

position usually paying relatively high rates. In 1973,

however, the A and B branches were eliminated. Their

members were transferred to the parent body. The D

branch was supposedly eliminated by the end of 1975;

however, according to one union exhibit its existence con-

tinued at least until January 2, 1976.* At the present time

the parent body, C branch and the RA program are the

only divisions of 542.

* These page references are to 469 F. Supp. 329 (1978).

7. “Men” is used here because the record establishes that 542

has never had women members of the union.

8. U-261.

A28 District Court Opinion

The registrant program is a classification by which an

operating engineer not eligible for union membership

maintains his referral status. This classification was cre-

ated in 1965 and was initially divided into A (inexperi-

enced) and B (experienced) registrants. That distinction

was theoretically phased out after 1968 because the A reg-

istrants were detracting from the work available to regis-

tered apprentices. Since 1970 a field admission test and

a written test have been required of applicants for regis-

trant status. Registrants can progress to Group I status

without seeking to join the union. (No evidence has

been presented concerning the precise number of regis-

trants who might not seek union membership status. )

After achieving 2500 hours, however, a registrant can,

under the contract, be admitted into the union upon ap-

plication.

Formal entry into the union may also be achieved,

according to procedure established by Local 542, as de-

tailed below, through union organization of a workforce

of an employer not previously subject to a bargaining

agreement with Local 542. Prior to January 1, 1975, con-

struction employees who were organized might enter

either A or B branch. Since January 1, 1975 when these

branches were abolished, all such employees are to enter

into the parent body directly. Yard and shop workers

who are organized are to enter C branch and surveyors

are to enter the D branch. Intra-union transfers from A

and B branches to the parent branch after four and three

years respectively are and have been available. Transfers

out of C branch have occurred either without restriction

or after one year of experience in C branch.’

Geographically, Local 542 encompasses Delaware and

Eastern Pennsylvania. Because of the enormous size of

9. Transfers from other locals can also be achieved once a

clearance card is obtained.

District Court Opinion A29

this jurisdiction, the Local is divided into five districts,

each with its own referral lists and hiring hall but all ul-

timately under one administration. It appears that the

normal but not necessarily the absolute practice is for the

work site hiring hall to make referrals based on its own

district’s listings.

The estimated 1400 contractors who have recently en-

gaged in operating engineering work within Local 542’s

wide range may vary considerably in size. Relatively few

are members of the defendant associations.

CAEP’s active members numbered only 109 during

the period 1965-1971, 88 during 1972-73, and 83 during

1974-75. Defendant GBCA listed its active membership

at 104 for the 1965-1971 period, 99 for 1972-73, and 83

and 74 for 1974 and 1975, respectively. Defendant United

Contractors Association (“UCA”) had 28 active members

at the time suit was filed in 1972, and between 1972-75

lost half of that membership. The remaining defendant

association, Pennsylvania Excavating Contractors Associa-

tion

[342] °

(“PECA”), dissolved in 1972; the record is silent as to its

membership. Notably, both UCA and PECA have con-

sistently delegated their negotiating responsibility to

CAEP

As a result of contracts entered into pursuant to nego-

tiations with CAEP and GBCA in 1961 and subsequent

negotiations with contractor associations, all participating

contractors have passed on the direct managerial control

of their application process to the hiring hall operated by

Local 542. The contractors did not, however, relinquish

power to affect the union's operation of the hiring hall,

for the contract terms remained fully capable of enforce-

* These page references are to 469 F. Supp. 329 (1978).

A30 District Court Opinion

ment in the event they were violated by those operating

the hiring hall and the contract instituted a grievance pro-

cedure by which an appellate tribunal consisting of an

“Employer Representative, a Union Representative and an

Impartial Chairman appointed jointly by the Employer

and Union . . .” would decide whether a complaining job

applicant was aggrieved “ with respect to the functioning

of [the] hiring agreement.” Article II, §2(m). Although

a vast majority of the employers are not and have not been

active members of the defendant associations, the negotia-

tions conducted by those bodies have established a stand-

ard to which the unaffiliated contractors may conform.

The hiring hall system is on its face neutral and pur-

ports to create a bona fide seniority system. Plaintiffs’

allegations of discrimination are not directed against the

hiring hall system per se but against the union’s alleged

intentional refusal to follow their own hiring hall rules,

thus causing intentional discrimination against and a dis-

criminatory adverse impact on minorities. Plaintiffs also

allege discrimination particularly in admission into the

union and admission to the job referral process. This alle-

gation, although not attacking the hiring hall procedures

set forth in the contract, does attack practices which would

render the use of the hiring hall intentionally and other-

wise discriminatory and contradict its bona fide seniority

appearance. The foundation of this case rests on the

statistical documentary and testimonial evidence of dis-

criminatory departures from and applications of the union

hiring hall system.

B. The Philadelphia Plan

On September 24, 1965, shortly after Title VII went

into effect, President Lyndon Johnson issued Executive

10. 30 Fed. Reg. 12319.

District Court Opinion A31

with federal contracts in excess of $10,000 and requiring

affirmative action to ensure non-discrimination. The De-

partment of Labor and the Office of Federal Contract

Compliance (“OFCC”) have principal responsibility for

the enforcement of this Order.

Since much major construction work is done with at

least partial federal funding, the federal government ex-

pressed its concern that the Order be complied with in the

construction industry in the Philadelphia area. Toward

the end of 1966 Bennett Stalvey, Director of the Regional

Philadelphia Office of the OFCC, met with officials of

Local 542 and later with officials of the CAEP and GBCA,

advising them that it was the function of his office to see

that the Order was complied with.

At this point, there was a clear disagreement between

the federal government (OFCC), which wanted a higher

percentage of minority individuals on construction jobs,

and the construction industry, which wanted to use its

traditional methods of employment. In the Philadelphia

area (Philadelphia, Bucks, Delaware, Chester and Mont-

gomery Counties) this matter took on added significance.

Bennett Stalvey, in the fall of 1967, developed what was

known as the “Philadelphia (Pre-Award) Plan,” under

which the requirements of the Executive Order would be

implemented. A low bidder on a construction project in-

volving certain levels of federal funding would be obliged

by the OFCC to maintain a specific level of minority rep-

resentation in his construction

[343] °

workforce." The contractors, however, refused to make

* These page references are to 469 F. Supp. 329 (1978).

1l. The Secretary of Highways of the State of Pennsylvania

objected to the demand for a “manning table” asserting, inter alia,

that such a demand contravened civil rights low. This issue is not

new befure us.

A32 District Court Opinion

the specific commitments and hence in the spring of 1968

federal funds were withheld. Although Stalvey testified

that there were several instances in which funds were

withheld, the record specifically reveals only one low-bid-

der contractor-employer who was to use operating engi-

neers out of 542’s hiring hall and from whom funds were

withheld—Kiewit Sons Company of Omaha, Nebraska, a

company which was to undertake a major highway con-

struction project in Pennsylvania. Kiewit was not at that

time a member of any regional contractor association,

although it had been a member of CAEP by the end of

1967. Stalvey testified, and I find, that a total of at least

$30 million in funds was withheld from highway con-

struction programs through the spring of 1968.

A program was then developed which would accom-

modate the union in serving as an exclusive hiring hall

and at the same time assure a substantial minority par-

ticipation in the operating engineer trade. After a June,

1968, meeting in Washington, D. C., among officials of

542, their international representatives and OFCC officials,

an “Affirmative Action Program” was executed on July 17,

1968. This program, as explained by Howard Minckler,

a CAEP official, specifically included language urged by

the contractor associations expressly making it in lieu of

any other affirmative action plan, ie., the Philadelphia

Plan. Local 542, UCA, CAEP, and PECA were the origi-

nal parties to this agreement, although by August, 1968,

GBCA became an additional party. On the first page the

agreement states:

The parties to this agreement have made a detailed

analysis of employment of minority group workers in

the classifications covered by this agreement and have

determined that, in the area governed by this agree-

ment, approximately 650 members of Local 542 are

District Court Opinion A33

minority group members out of a total membership

of 5400. [Emphasis added. }

The affirmative action thrust of this program was to estab-

lish an apprenticeship program into which minority mem-

bers could be recruited and trained. In addition, there

was to be a program for retraining journeymen, particu-

larly minority journeymen. The federal government ac-

cordingly approved the program in lieu of the Philadelphia

Plan. Thus federal monies were released and no money

has since been withheld. The statement that 650 (12%)

of 5400 members of Local 542 were minority members was

viewed by defendants to be an important factor in ob-

taining federal approval of the substitute Affirmative Act

Program and thereby eliminating compliance with more

stringent federal minority manpower requirements. The

“detailed analysis of employment of minority group

workers” by Local 542, CAEP, UCA, PECA and eventually

GBCA was, however, grossly exaggerated and totally in

error.

In order to appreciate the significance of the over-

statement of minority members in 542, it seems useful to

outline the history of such inaccuracies. In the early

1960s, Robert Walsh, Business Manager of Local 542,

told the Philadelphia Human Relations Commission that

by his guess the figure was 500 of 5000. In 1966 Local

542 officials Walsh, Cahill and Ciavaglia informed Ben-

nett Stalvey that the number was 800-900 of 5000. Later

Minckler in a meeting with Stalvey stated that the num-

ber was “very large.” Based on the figures stated to Stal-

vey, the October 27, 1967 copy of the revised Operational

(Philadelphia) Plan lists the minority composition as

stated by the union at a possible 800-900 of 5000. In a

1967 report to the EEOC the union estimated a figure of

* 650 of 5000 stating, inaccurately, that most of its mem-

A34 District Court Opinion

bers “including Negroes and Spanish Americans have

permanent employment” and therefore do not use the re-

ferral system. In 1968, Robert Emrick, formerly an of-

ficial in the union but at the time coordinator of the

Registered Apprenticeship program, told EEOC

[344] °

investigator James Nunes that his estimate was 600 blacks

in District I and 50 more in other districts. In that same

year the union wrote to Robert Bartlett, Pennsylvania Sec-

retary of Highways, that 11-12% of the union membership

were minority group members. This served in part as the

basis for Bartlett’s objection to the withholding of funds

in 1968. See note 11 supra.

Finally, by 1969, the stated level of minority repre-

sentation began to recede into reality. Stalvey was told

in a February 18, 1969 meeting with union officials Rob-

ert Walsh, Homer Dawson, Joseph O'Donoghue and their

attorney, Martin Vigderman, that there were 400 minority

members among a total of 6000 members. By Decem-

ber of 1970, the union had ascertained that the number

of minority members as of January 1, 1970 was 259 of a

total membership of 6128. This number was reported to

the EEOC by a document dated December 31, 1970,

and signed by Robert Walsh and was referred to in cor-

respondence to the OFCC by Homer Dawson, local union

president, in December of 1971.”

* These page references are to 469 F. Supp. 329 (1978).

12. In a letter from Martin Vigderman, Esq., to Bennett

Stalvey, dated January 8, 1969, the number of minority members

was stated to be about 350 of a total of about 5500 members.

13. Homer Dawson, in a letter to John L. Wilks of the OFCC

dated December 6, 1971, stated that in a 1968 report to the EEOC

the union expressed the result of a questionnaire on minority mem-

bership. The union reported 193 minority members of 2845 re-

District Court Opinion A35

It is not acceptable to describe the repeated gross in-

accuracies as merely incorrect guesses. Those defendants

who signed the Affirmative Action Program agreement

stated that the figure was arrived at after a “detailed analy-

sis.” It obviously was not. Furthermore, Mr. Ciavaglia,

the union official in charge of the hiring hall, with the

assistance of Mary Kelly, a union employee, undertook a

study in 1969 or 1970 based on records and their own

knowledge of the membership, and concluded that there

were an estimated 200 blacks in District I of Loca! 542.

The ultimate unionwide count of 259 minority members

as of 1970 was achieved by a similar method, one which

was available throughout the period during which the

inaccuracy was perpetuated, i.e., through “personal knowl-

edge and identification by the business agents and officials

of the Union and by contacting the last known employer

when not known by the agents.” In addition to these

distortions, 542 failed to include in their semi-annual re-

ports to the OFCC information on where and in what

capacity minority operating engineers were employed al-

though such data was requirec by the Affirmative Action

Program Agreement.

While it is conceivable that in one instance the union

could have inadvertently made a significant error in over-

estimating the number of minorities in the union, it is

incredible that errors of this magnitude could have oc-

curred consistently by any mere coincidence. I find, and

the record permits no other plausible inference, that the

repeated overestimation of the number of minority in-

dividuals in the union, the failure to file complete semi-

annual OFCC reports with the prerequisite data, and the

other related activities of the union on this issue of the

“Affirmative Action Program” were part of a deliberate

13. (Cont’d.)

sponses. A total of 6000 questionnaires were stated to have been

mailed out.

A36 District Court Opinion

scheme of Local 542 to deny to the federal government

accurate information on the percentage of minority in-

dividuals in 542. This scheme was part of an effort to

have federal funds inappropriately released while at the

same time permitting 542 to keep the minority represen-

tation in the union at a far lesser level then it otherwise

would have been if the Philadelphia Plan had been ap-

plied. Only a finding of discriminatory intent can ex-

plain this subterfuge. The Philadelphia Plan would have

resulted in a higher number of minority group members in

the union and in the related industry. I find further that

the Philadelphia Plan would have been adopted by the

defendants if the fraud, deception and scheme of Local 542

had not been pursued by the willful presentation of sub-

stantial overestimates of the number of minorities in the

union.

[345] °

Any argument that, because the union alone had pri-

mary access to the membership data, the contracting asso-

ciations CAEP, UCA, PECA, and GBCA were not at least

reckless participants in this scheme, I find to be devoid of

merit and patently incredible. When these same contrac-

tors sought the release of the 30 million dollars they

showed no hesitation in signing the statement that they

“made a detailed analysis of minority group workers . .

At the time of this certification, there was no real sugges-

tion that any of the signatory contractor associations had

any doubt about the accuracy of the data or had merely

limited knowledge of it; instead they endorsed it. In this

respect their posture is like that of an accounting firm

which has certified that it has counted petty cash monies

or has verified bank statement deposit records when, in

actuality, it has done neither. In the instant situation, the

* These page references are to 469 F. Supp. 329 (1978).

District Court Opinion A37

record reveals a total absence of concern on their part re-

garding the accuracy oi their representation to the federal

government in seeking the immediate release of at least 30

million dollars and doubtless the release of millions more

to follow. The prospect of deriving such an immediate

and substantial financial benefit from the federal coffers

allowed them to become willing parties to the scheme by

capriciously certifying “facts” in anticipation of the govern-

ment’s reliance on them: Having sought to enrich their

members with substantial profits, it is now too late to cry

innocence and cast the blame elsewhere. These were no

innocent prognosticators who were misled by the union’s

scheme to give inaccurate information. Under these cir-

cumstances, I find that these signatory defendant associa-

tions are consequently estopped from repudiating their

certification after their members have had the opportunity

to compete for and after many have received the released

funds.

C. The Benjamin Franklin Programs I and II

In 1968 James Longacre, Executive Director of the

Pennsylvania State Council of Operating Engineers (a pri-

vate organization), formulated a six-month training pro-

gram consisting of on-the-job instruction and classroom

instruction for 100 hard core unemployed males from east-

ern and western Pennsylvania. While there were both

white and black trainees, the majority of the members

were minority individuals. An agreement was reached

between the Council and the Pennsylvania Department

of Labor to implement this plan. Local 542 had some

measure of responsibility for final selection of the partici-

pants from eastern Pennsylvania even though (1) it was

not asked to contribute to the program’s funding, which

came from the federal government ($231,135) and the

Commonwealth of Pennsylvania ($542,884.27), and (2)

A38 District Court Opinion

the Council of Operating Engineers and the Pennsylvania

Bureau of Employment Security were fundamentally re-

sponsible for recruitment. Some equipmeni was donated

by contractors, including Glasgow, Inc., but most was paid

for in rentals from the program’s funding. None of the

associations or contractors were parties to the agreement

or responsible for the Benjamin Franklin I (BFI) en-

deavor and none received federal funds for the administra-

tion of the program.

The recruitment and selection activities by 542 were

conducted through the JATC and particularly by George

“Al” Holland, a black operating engineer who was a union

business agent. Two minority applicants, Ronald Richard-

son and Howard Williams testified that they were told by

Holland at the recruitment stage that upon successful com-

pletion of the BF program they would obtain steady work.

This was repeated during training and at graduation exer-

cises along with the assurances of union membership and

journeyman’s pay. Even a graduation handout stated that

graduates would receive highway construction jobs.

Of the 122 original trainees, 81 graduated from BF I.

Fifty-eight of these were black, 23 white; of this group 37

blacks and 7 whites were from eastern Pennsylvania.

None of these graduates was given any credit for hours

spent in training. This is a matter of no small significance

since the

[346] °

number of hours of experience, described earlier, is sup-

posed to enhance placement in the hiring hall system.

These graduates were placed on the Group III (lowest

priority ) out of work list. Although the director of the

Benjamin Franklin Program, Mr. Nygard, testified that the

graduates needed “follow through” (on-the-job assistance ),

* These page references are to 469 F. Supp. 329 (1978).

District Court Opinion A39

none was provided. Mr. Walsh testified that it was his

expectation that the graduates would work in yards, mills,

or trucking companies but not in construction. As will

be detailed below, many graduates received little work

opportunity.

Toward the close of 1969, a Benjamin Franklin II

(BF II) program was agreed upon, again at the

instance of Mr. Longacre and with the approval of the

Pennsylvania Department of Labor. The same format

was used for recruitment and selection except that a tenth

grade education qualification and screening tests were

required of entrants and the Pennsylvania highway con-

tractors were themselves required to contribute $80,000

statewide in cash or equipment as a condition to con-

tinued eligibility for bidding. The contractors formed

Construction Training, Inc. in order to make the financial

arrangements. Each contractor was to contribute to Con-

struction Training, Inc. a base amount of $200 plus a

rate of $.04 for each hour of time worked by an operating

engineer or apprentice between March and October 30,

1970.

As with the BF I program the defendants had no part

in formulation of BF II. George Holland did, however,

have major responsibility in the process by which the

union recruited applicants. Holland made statements to

John Henry Owes that he would receive 2500 hours credit,

a parent body book, and future on-the-job assistance if he

graduated. Holland also made similar statements to

Thomas Taylor, particularly that he would become a

journeyman and earn $300 to $400 per week."

14. The union never called Holland to testify to refute those

claims even though he was working as an operating engineer dur-

ing most of the time on a construction project in this very court-

house and even though, on occasion, he was a spectator at the trial.

A40 District Court Opinion

The training for BF II took place at the same location

as the BF I training, Resica Falls, Monroe County, Penn-

sylvania. Of the 65 selected, 56 were graduated; of these,

46 were black, 24 from eastern Pennsylvania. Once

again none of the graduates were given time credit, no

one received a journeyman’s status, and after graduation

only a few minority graduates accumulated a significant

number of hours. In BF II, as in BF I, the associations,

contractors and unions did not receive any funding.

The immediate net result of the Benjamin Franklin

Programs was to increase the number and percentage of

minority registrants in Group III status. I find that many

of the BF trainees had been led by the union to believe

they would be put in Group I rather than in Group III

status and thus have the advantage of better job oppor-

tunity. In the years to follow that training, many though

not all would fail to achieve the hours necessary to be-

come members of the union or to enter Group II or Group

I. The Benjamin Franklin Programs figure heavily in the

present action because all of the named plaintiffs are BF

graduates.”*

15. The union, associations and contractors were also obli-

gated as a result of their “Affirmative Action Program” to upgrade

their training opportunities with an emphasis on minority par-

ticipation. Although the “Affirmative Action Program” succeeded

in diverting application of the Philadelphia Plan, it did not, even

ut this basic level, provide the assured attention to minority up-

grading. Operation Stepping Stone, an upgrading project pur-

suant to the “Affirmative Action Program,” gave minimal attention

to the purpose of minority upgrading. No special efforts were

made to notify minority operators or to describe the program as

one which was to emphasize upgrading among minorities. As to

four minority applicants to the program who did not participate,

the record reveals no explanation. A total of six minorities out of

96 participants in the two-session operation spent at least some

upgrading time. Only three minority individuals out of 89 com-

pleted the program.

District Court Opinion A4l

[347] °

D. Procedural History **

Having outlined briefly the hiring hall system of 542

and having discussed some of the important circumstances

underlying this suit, particularly the Benjamin Franklin

training programs and the participation of defendants

Local 542 and contractor associations in a program sub-

stituting for the Philadelphia Plan, attention may mean-

ingfully be directed to the procedural history of this case.

The first major legal challenges to the alleged dis-

crimination began with two charges filed before the

EEOC, one by an EEOC Commissioner Vincent T.

Ximines on July 29, 1968, and one by three BF I gradu-

ates, Raymond Williams, Willie McKay and Donald

Muchison, ca June 17, 1969. EEOC investigator James

Nunes investigated both complaints. Service of Ximines’

charge upon Local 542 was made on October 3, 1968 and

service of Williams’ charge was received on November

28, 1969. Ximines’ charge was directed to the breadth of

542’s procedures:

(a) Respondent discriminates against Negroes ia re-

ferrals for jobs.

(b) Respondent discriminates against Negroes by

limiting and classifying its membership in a man-

ner which deprives Negroes of employment op-

portunities.

* These page references are to 469 F. Supp. 329 (1978).

16. Although certain exhibits containing letters, findings and

decisions pertinent to the administrative disposition of this case

before the EEOC were excluded for substantive purposes, they

must be considered purely in addressing the issue of the existence

of and the extent of jurisdiction. These iegal issues will be dis-

cussed below.

A42 District Court Opinion

admit Negroes to apprenticeship programs.

(d) By these and other acts, Respondent has dis-

criminated and continues to discriminate against

Negroes because of their race in violation of the

provisions of Sections 703(c) and (d) of the Act.

The pro se charges by Williams, McKay and Muchison are

identical to one another. They allege discrimination in

the union’s referral practices:

I was recruited into the training program by a rep-

resentative of the International Union of Operating

Engineers, Local No. 542 and upon completion of the

training program I was promised employment by the

Union. The training program under the sponsor-

ship of the inion ran for a period of six (6) months.

During this time I was trained to operate the follow-

ing heavy equipment: Bulldozers, Graders, Front

End Loaders, Back Hoes, Post Hole Drills, Core

Drills, Scrapers, etc. I was graduated as a qualified

operator on the above equipment. Since my gradua-

tion two weeks ago I have been to the Union Hall

every day to be referred, with no [undecipherable

word] results. 1 feel that I am being discriminated

against because of my race (Negro) and for no other

reason.

On August 30, 1971, the Philadelphia District Director

of the EEOC, Ralph A. Allen, advised Local 542 in separate

letters of the decisions of the EEOC that reasonable cause

existed to believe (1) that Ximines’ charge was true and

(2) that the charges of Williams, McKay, and Muchison

were true. The three claimants, in the decision in their

case, were deemed entitled to receive the EEOC’s decision

District Court Opinion A43

dated August 6, 1971, on the Ximines charge. The letter

of decision on their own case stated that, as members of

the class harmed by the discrimination alleged by Ximines,

the three individuals were entitled to such notice:

The Companion case . . . concerns a charge lodged

against Respondent by an EEOC Commissioner.

Pursuant to our Procedural Regulations, 29 C F. R.

1601.25b (June 18, 1970), 35 FR 10005, Charging

Parties will be entitled to receive copies of our deci-

sion in [the companion case] both because they are

currently aggrieved by practices found to be unlaw-

ful in that decision, and because they were members

of the class of potential Negro members which was

aggrieved by several of Respondent’s unlawful em-

ployment practices at the time the Commissioner's

charge was filed.

[348] °

Right to sue letters dated October 14, 1971, were sent to

Williams and McKay.’ Within 30 days thereafter, on

November 8, they and the other named plaintiffs in this

suit filed their class action complaint with the district

court. On January 3, 1972, a class of plaintiffs and de-

fendants was certified, as described above.

During the discovery stage which followed there was

an unexpected and very unfortunaie development in re-

taliation for the filing of plaintiffs’ suit. On June 19, 1972,

Marion Eaddy and John Dent, both named plaintiffs, were

attacked by white operating engineers in the union hir-

ing hall offices. Dent's testimony, which I credited in my

* These page references are to 469 F. Supp. 329 (1978).

17. The record does not make reference to the sending of a

right to sue letter to Muchison.

A44 District Court Opinion

previous opinion at 347 F. Supp. 268, 275-76 (E. D. Pa.

1972), affd, No. 72-1901 (3d Cir., May 21, 1973), was

particularly graphic. Marion Eaddy had been hit over

the head from behind with a chair. Two men then con-

tinued punching and kicking him as he lay on the floor.

Dent pulled one man away from Eaddy and shouted for

help from the others in the hiring hall who included the

union’s business agent, Mr. Ciavaglia, his assistant, a C

branch agent and twelve to fifteen union members. Dent

himself was then struck over the head with a chair by

a white operating engineer. The police were never called.

The victims were not forewarned or aided by those wit-

nessing the occurrence. Although Ciavaglia testified that

he did not know the attackers, one of them had been in

his office just a few minutes before.

On the following day the violence increased. Four

or five pickup trucks in each of which were several white

men, some of whom Dent recognized as operating en-

gineers, came to the hiring hall en masse shortly after work-

ing hours. Despite the presence of a policeman, Dent,

Eaddy and Cleveland Allen were beaten by groups of

white operating engineers in front of the hiring hall. 347

F. Supp. at 276-77.

After an extensive examination of the facts and law

this court entered an order enjoining pendente lite Local

542 and all those acting in concert with or on behalf of

Local 542 from interfering in anyway with or retaliating for

plaintiffs’ exercise of their federal statutory and constitu-

tional rights to institute their employment discrimination

action.

Following four years of discovery, I entered an order

bifurcating the trial into two stages: the first on the issue

of liability and the second, if liability was found, on the

issues pertinent to recovery of damages.

District Court Opinion A45

E. The Delays and Contempt Issues Involving

Abraham Freedman, Esquire

During the course of the trial which began on Janu-

ary 19, 1976 and continued through June 28, 1977, there

were two other unusual occurrences deserving mention.

Local 542’s counsel, Abraham Freedman, Esquire, was

twice cited for criminal contempt for his courtroom con-

duct. 73 F. R. D. 551 (E. D. Pa. 1976), affd, 552 F. 2d

498 (3d Cir.) (affirming both criminal contempt orders),

cert. denied, 434A U. S. 822, 98 S. Ct. 67, 54 L. Ed. 2d 79

(1977); 73 F. R. D. 544 (E. D. Pa. 1976) (denial of mo-

tion for stay of action pending Freedman’s appeal of

first criminal contempt order). The first contempt order

followed a lengthy and undirected reading by Mr. Freed-

man of Bennett Stalvey’s deposition during his cross-exam-

ination. After four transcript pages of such unfocused read-

ing, plaintiffs objection was sustained. Mr. Freedman

responded by objecting to the court’s ruling. He stated

his intention further to state his ground for objection. He

was ordered not to do so with the assurance that he would

be the beneficiary of all possible grounds. After numer-

ous repetitions of the order, 73 F. R. D. at 548-50 ( Appen-

dix A), Mr. Freedman, wilfully persistent in his course,

was held to be in contempt. Freedman received a thirty-

day sentence whicli has since been modified to a $500 fine

upon Freedman’s motion for resentencing.

The second contempt order was a result of Mr.

Freedman’s calculated dilatory tactic to continue reading

from Samuel Long's work record (in evidence as an ex-

hibit) de-

[349] °

spite an order to cease such reading. 73 F. R. D. 551

(E. D. Pa. 1976). For this refusal Mr. Freedman was

fined in the amount of $500.

* These page references are to 469 F. Supp. 329 (1978).

A46 District Court Opinion

From the very beginning of this lawusit Mr. Freed-

man’s tactics of delay and reprehensible conduct were wil-

fully designed and executed with the intent to obstruct

and preclude a proper judicial determination of the real

facts of the case. It is my judgment that he sought to

subvert this intensely controversial matter to a mistrial so

that years of investigation and discovery would have to

begin again. Although his conduct was as reprehensible

and as irresponsible as any I have seen during thirteen

years as a trial judge, nevertheless, with patience and hope-

fully discernment, I have tried to disassociate those tac-

tics from the essential fact finding process here.

Fortunately, for all the litigants including his clients,

Abraham Freedman was not successful in aborting the trial

process; however, he did succeed in making most difficult

the presentation of those issues which would have been

easy to discern from a fact-finding standpoint and which

could have been ruled on and adjudicated promptly. As

to the more complex matters in the case, he persistently

tried to make it impossible to comprehend their nuances

and to preclude any rational presentation of the case. By

reason of this daily persistent level of counsel irresponsi-

bility, discovery, trial and adjudication have extended far

beyond any reasonable time span which any case would

warrant—even one involving a most intense vigorously

litigated controversy.

Perhaps the tone of the trial can be best conveyed by

the opinion of the Court of Appeals on the two contempt

citations. Commonwealth of Pennsylvania v. Local Union

542, 552 F. 2d 498 (3d Cir.), cert. denied, 434 U. S. 822,

98 S. Ct. 67, 54 L. Ed. 2d 79 (1977). After evaluating

Mr. Freedman’s conduct, the Court of Appeals reviewed

cases where similar conduct of non-lawyers was held to be

inexcusable and then the Court noted:

District Court Opinion A47

If non-lawyer Seale’s defiance of a judge’s order was

inexcusable, how much more so should be the conduct

of appellant Freedman, a seasoned trial lawyer. We

agree with the Seventh Circuit, and hold that a trial

attorney’s belief that certain action is necessary to pro-

tect the record for appellate review does not excuse

his deliberate defiance of the trial judge’s explicit and

repeated orders. The phrase “preserving the record

for appeal” is not a talisman that absolves a lawyer

from his usual obligation to comply with a trial judge’s

direct orders.

Freedman’s conduct was an affront to the trial judge’s

authority to control the proceedings in his own court-

room. An attorney who, in deliberate disregard of

seven direct and explicit orders by the trial judge,

pursues a course that he determines to be in the best

interests of his client, offends the dignity and author-

ity of the court and thereby obstructs the administra-

tion of justice. United States v. Seale, 461 F. 2d 345,

371 (7th Cir. 1972). To hold otherwise would be to

strip trial judges of their power to supervise the pro-

ceedings before them, and to clothe counsel with the

authority to conduct trials in whatever manner they

deem appropriate. Furthermore, we note that Freed-

man’s conduct was obstructive because it resulted in

a wholly unnecessary and not insignificant delay of

the trial. For this reason, too, we conclude that his

conduct arose to the required level of disruptiveness.

Freedman’s action was intentional, constituted mis-

behavior which caused an actual obstruction of the

administration of justice, and occurred within the

presence of the court.

A48 District Court Opinion

Freedman concedes that his conduct did not vilify

the judge, and we cannot agree that the judge’s com-

ments demonstrate a bias against Freedman. The

judge’s description of appellant's conduct was nei-

[350] °

ther acid nor sarcastic; it was simply accurate. The

trial judge exhibited patience and restraint, and did

his utmost to preserve order and decorum; he did

not engage in wrangling or bickering, and used the

summary contempt power only as a last resort... .

Appellant [Abraham Freedman] mistakes judicial dis-

approval for personal pique A judge who objec-

tively expresses his antipathy toward contumacious

conduct does not thereby disqualify himself from

adjudicating the contempt under Rule 42(a). Under

the circumstances of this case, we see no need for

another proceeding to adjudicate what one judge has

already witnessed. Summary disposition, we hold,

was appropriate.

After the contempt citations had been sustained and

on the last day for modification of his thirty day sentence,

he filed a petition requesting that he not be sent to jail—

even though the sentence had been affirmed and no fur-

ther judicial relief seemed available. I modified the

prison sentence by vacating the imprisonment and impos-

ing a fine of only $500. This was done not because there

were any fundamental mitigating factors but solely be-

cause if, at his present age of more than three score and

ten, he has never learned or has now lost totally the rec-

ognition of the standards of permissible conduct for law-

yers, then 30 days in jail would not be a true deterrent

for the future. Thus the jail sentence was not eliminated

* These page references are to 469 F. Supp. 329 (1978).

District Court Opinion A49

because of any view that it was ever unfair, for I am still

confident that Mr. Freedman’s conduct was as inexcusable

as it was so often disgraceful.

F. The Named Plaintiffs as of Certification

As has been noted all twelve of the named plaintiffs

are graduates of either Benjamin Franklin I or II. Be-

cause of the importance of the characteristics of these

named plaintiffs in determining whether they satisfy the

class action requirements and rule 23(a), the plaintiffs

will be described with reference to some basic features.

At the time of the certification, on March 13, 1972,

one of the named plaintiffs (Marion Eaddy) was a listee

in Group I, five were in Group II (Randolph Hughes,

William Bostic, Ronald Richardson, Ronald Crawford,

Willie Frank Gilchrist) and the remaining six in Group

III (Raymond Williams, William McKay, Arel Brownlee,

Kenneth Howard, Alpha Christmas, Clarence Winder).

One, Marion Eaddy, a graduate of BF I, did become a

member of Local 542’s parent body. Two of the named

plaintiffs, Randolph Hughes and Alpha Christmas, also

BF I graduates, were applicants to the Joint Apprentice-

ship Training Program, although neither had received a

final disposition of his application. The JATC files of

Hughes and Christmas indicate no disposition but simply

make reference to the Benjamin Franklin program. All

plaintiffs were alleged to have been victims of the referral

practices and practices relating to admission to Local 542

and discriminatory advancement in their profession.

The hours worked by named plaintiffs range from

none at all to over 2500 in the period between their BF

graduation and class certification. Three, Raymond Wil-

liams, William McKay and Clarence Winder never re-

ceived registrant books, the first and lowest step in attain-

ing entry to the union.

A50 District Court Opinion

Although it is clear that the Group III plaintiffs are

different from the Group II and Group I plaintiffs in terms

of their supposed priority in referrals, I find there is no con-

flict between such plaintiffs for purposes of trying the

legal issues of this suit. Plaintiffs are not attacking the

hiring hall system as constituted but rather are attacking

practices which, while forming no part of the hiring hall

system’s stated foundation, nevertheless have a profound

impact on its operation.

G. Statistical Evidence

An important part of plaintiffs’ case lies in its proof

of discrimination in membership in Local 542 and its proof

of discrimination in hours and wages of minority union

mem-

[351] °

bers. Plaintiffs’ proof on both issues is based in part on a

statistical probability analysis. See International Brother-

hood of Teamsters v. United States, 431 U. S. 324, 97

S. Ct. 1843, 52 L. Ed. 2d 396 (1977). For the sake of

orderliness we will take the statistical proof of membership

discrimination first.

Plaintiffs’ expert, Dr. Bernard Siskin, is an Associate

Professor at Temple University and Chairman of the De-

partment of Statistics. He has written numerous articles

and a text book in the field of statistics and has particular

expertise in social statistics. At trial he presented a num-

ber of studies of 542’s composition, ascertaining, inter alia,

the number and prcportion of minority union members,

the pool of minority persons available for operating en-

gineer work, the number and proportion of minority en-

tries from 1966 to 1975, the numbers of minority persons

* These page references are to 469 F. Supp. 329 (1978).

District Court Opinion A51

entering the union via the various available means, and

the comparative hours and wages of minority members.

From such studies he was able to draw conclusions relating

to the likelihood of discrimination in the 542 hiring hall

system. This case, like most cases involving statistical

proof, involves among the expert witnesses some evi-

dentiary conflicts which require the fact finder in turn to

make findings of credibility. Upon balance I find Dr.

Siskin’s testimony to be credible, persuasive and accurate

on these subjects and on the other subjects of his testi-

mony. The testimony of the other experts who differ does

not cause me to repudiate or modify my finding as to Dr.

Siskin’s credibility.

1. Membership Disparities

Based on the computer tapes of a “Master List of Ac-

tive Members” provided to Dr. Siskin by the union (with

key punch errors being corrected through the annual pen-

sion files), Dr. Siskin determined the union membership

to be 6,051 as of December 31, 1971. This figure in-

cludes the parent body, branches A through D, and the

Registered Apprenticeship enrollees. (Holders of regis-

trant books are not counted in this tabulation and are not

considered by the union as members.) There were two

hundred and thirty-five black members. Thirty-three more

were members of another minority. Thus the composition

among active members of Local 542 at the end of 1971

was 3.9% black. When all minorities are considered, the

minority composition of the union was 4.4%. These 1971

percentages are very nearly identical when pension wel-

fare, and honorary members (inactives) are included in

the membership definition. The following table reflects

the composition of 542, including pension, welfare and

honorary members, for the years 1966-71:

A52 District Court Opinion

Number of Percent

Year Membership _ Minorities Minority

1966 5092 174 3.42

1967 5385 182 3.38

1968 5703 216 3.79

1969 5995 261 4.35

1970 6192 255 4.12

1971 6453 289 4.48

1972 6631 307 46

1973 6942 344 5.0

1974 7066 356 5.0

1975 6974 36 48

Based on the 1970 census data for the area covered

by Local 542’s jurisdiction, the total population is 7,729,115

of which 888,370 or 11.5% are black and 33,073 or .4% are

members of another minority group. Limiting the popula-

tion to males between the ages of 18 to 65, in order to

define more precisely the pool of potential applicants, the

figures become 11.0% black and 11.5% minority. The 11.0%

and 11.5% figures are a conservative statement of the

available black or minority labor pool. This was Dr. Sis-

kin’s conclusion and I agree. Siskin’s best estimate, how-

ever, was 12.7 to 13.4% black and a total of 13.2 to 13.9%

minority, taking into account by his calculations labor force

participation rates, the census undercount, education and

occupation and disregarding particularly the suggested

factors of automobile and telephone ownership.

Using the conservative 11.0% and 11.5% result, the

membership of Local 542 as of 1971 was grossly dispro-

portionate to the 3.9% black and 4.4% minority percentage

in the labor pool. The likelihood that such a disparity

would occur by chance is less than

District Court Opinion A53

[352] °

1 in 100 trillion, less than 10~°. Of course, if Siskin’s

greater percentage figures, which I find on a preponder-

ance of the evidence to be accurate, were used, the dispar-

ity would increase still further. Notably the disparity re-

mained extremely significant as against the conservative

labor pool figures as of 1975 when the minority percentage

(four years after the initiation of this suit) had risen to

only 4.8%.

2. Discrimination in Entry

In addition to demonstrating this gross disparity,

plaintiffs’ expert, Dr. Siskin, compiled data principally from

union exhibits indicating the ratios of minority entry into

the union (parent, A, B, C, and D branches and the RA

program). During the period 1966-1971, 2601 new mem-

bers entered 542. Minorities entered at the following

rates:

Blacks fan nnn

1966 5.1% 5.5%

1967 2.6% 2.8%

1968 5.8% 5.8%

19€9 8.2% 9.8%

1970 3.8% 4.8%

1971 6.8% 8.7%

The total black entries for the union as a whole were 143

or 5.5% over the course of these years and the total minor-

ity number was 166 (6.4%). The direction of the entry

rate (increasing or decreasing) fluctuated during this

period, so it is not possible to deduce with absolute cer-

tainty any definite trend, although in the last three years

before suit (1969-1971) the average entry rate was 6.4%

A54 District Court Opinion

black and 7.9% minority. The difference between this

average and the conservative labor pool percentage is

statistically significant at less than 1 in 1,000,000 (i.e., the

probability that the difference can be explained by chance

is less than one out of one million). On the basis of ran-

dom entry one might reasonably expect almost 300 minor-

ity entries between 1966 and 1971. The difference be-

tween this expected number and the lesser actual number

is 133—44%. By the end of 1974, the minority member-

ship of Local 542 was 4.3% black and 4.8% minority out of

6725 members. As will be developed below, there are no

other factors which would fairly require a finding that this

gross disparity is not the result of discrimination. There

is no sufficient evidence to explain that this disparity oc-

curred because of any valid job-related qualifications not

possessed either by members of the minority labor pool or

by actual applicants for union membership.

Even after suit, from 1972-1974, the minority entry

ratio into the union is at 7.4%, not far f 9m the 6.4% pre-

suit figure applicable between 1966 and 1971 and less than

the 7.9% rate between 1969 and 1971. In 1972, 5.9% of

entrants were minority; in 1973, 8.1%; in 1974, 8.0%; and

in 1975, based on union data after excluding reinstatement

and withdrawals, only 1.5% (adjusted from 2.8%)."*

In the data given above, C and D branch members

were properly included in asses. g the extent of 542’s dis-

crimination in part because the C and D members are

indeed union members and because transfers can be af-

fected from C and D into the parent body construction

trade, thus affecting the general measure of availability of

entry into the construction trade and the employment

* These page references are to 469 F. Supp. 329 (1978).

18. The adjustment is made by subtracting the withdrawals

and reinstatements from the group considered to have entered in

1975.

District Court Opinion A55

prospects of the plaintiff class. (The entry data for the

years 1972-1975 does not include D branch members." )

Plaintiffs’ arguments that Local 542 has discriminated are

indeed based in part on the assertion that the union main-

tained primarily white entry methods and primarily mi-

nority entry methods. For purposes of analyzing this con-

tention the data on entries into the union will be broken

down (in rounded figures) into branch or division.

[353] °

Parent, A & B C&D

Black Minority Black Minority

1966 3.7 3.7 8.4 9.0

1967 2.2 2.7 2.4 2.4

1968 6.0 6.0 6.4 6.4

1969 8.1 8.9 8.7 11.1

1970 5.3 5.3 0 1.9

1971 10.7 12.7 2.0 4.1

The overall average entry rate from 1966-71 is:

Union A&B&P C&D RA

Black 5.5 6.4 46 4.3

Min. 6.4 7.0 6.0 5.0

The overall average entry rate from 1969 to 1971 is:

Union A, B, P C,D _RA

Black 6.4 8.3 3.3 6.4

Min. 7.9 9.4 5.8 75

19. Union’s Exhibit 254 indicates that there were only two

D branch members between 1972 and 1975.

* These page references are to 469 F. Supp. 329 (1978).

A56 District Court Opinion

For each of the three year averages (1969-71) the dis-

parity from the minority labor pool percentage is statis-

tically significant (less than a 5% probability of chance

occurrence). For the union as a whole, including C and

D branches, during this three-year period the disparity is

significant such that the likelihood of these overall figures

occurring by chance is less than 1 in 1,000,000.

In the period from 1972 to 1974, 7.4% of entries into

542 were minority members: 8.0% parent body, A, or B;

1.7% C Branch; 18.2% RA.” The very high RA figure

comprises entrants into the four-year program. If instead

of examining the number of minority entrants into the

RA program we look to the number of minority graduates

moving from RA status into the operating branch for this

period, the 18.2% figure diminishes to about 5.9%. This

latter percentage is in many respects the most meaningful

in measuring the minority participation of registered ap-

prentices. Furthermore, as the minority RA entrants have

increased in this period, the minority C Branch entrants

have diminished somewhat, so that apparent increases

in participation by minorities in the RA program are not

absolute increases. If the RA minority graduate figures

are used instead of RA entry figures, the overall percent-

age of minority entrants into Local 542 during 1972-74 is

4.9% instead of 7.5%; this makes a decrease since the filing

of this suit in 1971 when the average rate of minority

entry between 1971 and 1966 was 6.4%. Although the

RA program will be discussed separately under the head-

ing “JATC,” it is clear that a careful evaluation of the

statistical proof reveals continuing discrimination. Thus

as of 1976, two years after A and B branches were abol-

ished, the Parent Body was 5.8% minority, the C Branch

3.9%, and the Registered Apprentice Program (including

20. This last figure may actually be 18.9% based on calcula-

tions from Plaintiffs’ Exhibit 253(f)-(h) indicating the rate of

minority entry from 1972-74.

District Court Opinion A57

entrants) 12.7%. Excluding inactives the percentage of

minority union members (counting RA entrants) at the

outset of 1976 was 4.87%. The fluctuations in methods of

entry strongly suggest manipulation. This is corroborated

by other proof.

3. Disparities in Hours and Wages

The second major component of plaintiffs’ statistical

proof concerns the proportionality vel non between the

hours worked and wages received by white members and

by those minorities who were able to become members of

Local 542. Dr. Siskin performed two basic studies in-

quiring into this matter. In the first he compiled from

the union’s Master List of Active Members all the hours

worked by whites and minorities during 1969-71 and esti-

mated by a standard formula of hours worked in recent

years just who was in Group I, II or III. In the second,

using the Master List he examined the hours worked and

wages obtained during 1972, making correlations to the

out-of-work list and the respective operating branches of

542 so as to compare even more closely like groups of

white and minority workers. Both studies excluded con-

sideration of C Branch and D Branch and registrants.

The result of Siskin’s first study based upon health,

welfare and pension records is indicated in the following

table.

[354] °

Year % White Hours % Minority Hours

1969 96.42 3.58

1970 96.30 3.70

1971 96.38 3.62

When one compares the minority labor pool percentage

(11.58) to the minority member percentage of hours

* These page references are to 469 F. Supp. 329 (1978). ap

A58 District Court Opinion

worked, the disparity is still greater than that revealed by

the comparison between the minority labor pool and the

542 operating membership.

Plaintiffs’ first study sought to account for differences

in age, district, branch, seniority, and out-of-work list

status by use of a regression analysis. After accounting

for these factors, Dr. Siskin nevertheless concluded that

white operating engineers in the studied branches worked

109 hours per year longer and at higher rates than minority

members on account of race. Siskin concluded that the

racial disparity was statistically significant and would not

be decreased by the addition of other variables. This

means that minority members received $717 per year less

than whites. 'n addition to this loss, Siskin concluded

that minorities lost on the average $262 per year due to

maldistribution among branches.

Upon receiving master list data for 1972, including for

the first time exact wage information and group status,

Dr. Siskin repeated his analysis for that year, excluding

from consideration all those individuals on the list who be-

gan during the course of 1972. Siskin also analyzed in

this study the raw wage and hour differential among the

branches and among out-of-work listings. Once again,

only Parent, A, B, and RA branches unionwide were

analyzed:

Group Ave. Hrs. Ave. Hrs.

List White Minority Difference

P I 1799 1592 207

B I 1713 1587 126

B II 1483 1171 312

A —_ 1684 1513 171

RA — 1580 1415 165

District Court Opinion A59

The average racial difference in wages by branch and

group list unionwide is correspondingly as follows: *

Ave. Wages Ave. Wages

White Minority Difference

P I $16,312 $15,044 $1,268

B I 14,250 13,566 684

B Il 11,489 9,889 1,600

A —_ 11,512 9,928 1,584

RA — 11,046 9,487 1,559

The average overall disparity unionwide in 1972 hours

and wages is revealed by the following table:

White Minority Difference

Average

Hours _—1727 hrs. 1551 hrs. 176 hrs.

Average

Wages $14,718 $13,232 $1,486

[355] °

After also subjecting the raw 1972 results to a regres-

sion analysis (so as to equalize factors of age, district,

21. The possibility of an interdistrict effect on these differ-

entials was also explored by analyzing District I according to the

same standards. District I holds 85% of 542 but only about 50% of

white members. Siskin concluded that the District I analysis

produced the “same general result.” P-168, Rpt. 7 at 12. This

analysis produces results reasonably comparable to those for the

union generally: whites of any branch and list group work more

hours than minorities of comparable status. Notably, the rate of

pay differential between minority and whites in District I is greater

for A branch, B branch (Group I), and RA, but the 1972 study

roughly confirms Siskin’s earlier estimate of the differential.

* These page references are to 469 F. Supp. 329 (1978).

A60 District Court Opinion

branch, seniority, and group out-of-work list status ), Siskin

concluded that whites on the average worked 97.5 hours

more than minorities in 1972 and earned $749 more. This

is indeed close to the 1969-71 estimated result. It must be

emphasized that the disparity in average hours worked is

not a result of the effects of low priority out-of-work list

group or seniority. The discrepancies accrued while these

factors were equal.

4. Referrals

Closely tied to plaintiffs’ proof of a differential in

minority hours and wages is the proof of an arbitrary sys-

tem of referrals. Siskin’s analysis on this subject was lim-

ited to District I, although in a separate analysis union-

wide clustering of minorities with a limited number of

employers was also shown to exist. First I will detail the

District I study.

Siskin’s study of the District I referral system involved

an analysis of seventeen out-of-work lists from among the

various groups (five from Group I, one from Group II,

five from Group 1-A, and six oilers and RA lists). The

seventeen lists were the remainder after eliminating all

lists during that period with less than forty names. This

was to assure statistical significance. Each list had been

used for one of any of the months between 1969 and 1971.

A rank was then assigned to each person. on the list accord-

ing to his position. Referrals were counted based on the

first referral date marked in a listee’s work records. (A

referral constituted any attempt to contact a worker in-

cluding acceptances, refusals, or failures to achieve contact

so long as noted in work records.) By computer, seven-

teen “selection” lists were created reflecting the actual

order of referral.

By creating the selection list, Siskin was able to com-

pare actual referral rankings to the work list ranking in

District Court Opinion A61

order to determine the coefficient correlati: « the two lists

positively, negatively or neutrally. The appropriate

numerical correlation (the Spearman rank correlation co-

efficient (“r”)) ranges from “ — 1” to“ +1”. A“ +1”

correlation would mean that the two lists are identical; a

“— 1” would mean that they bear a perfect reverse order

correlation; a “UO” correlation would mean that the relation-

ship appears random. Based on Siskin’s analysis the r cor-

relation coefficients for the seventeen lists are as follows:

Group I lists

List number r

# 4 .20

#7 55

#10 52

#13 46

#16 62

Group II

# 2 08

Group I-A

# 3 .22

#5 40

#9 37

#12 43

#15 54

RA & Oilers

# 1 .24

# 6 38

# 8 Ad

#11 Ad

#14 46

#17 A5

A62 District Court Opinion

While all of the lists except list #2 from Group II were

clearly on the positive correlation side, further analysis by

Siskin revealed that virtually none of the lists reflecting

actual referral rankings was significantly similar to the

corresponding out-of-work list.

This conclusion was reached after calculating the

“variance.” In the present context the correlation co-

efficient (r) when squared (r*) measures the variance in

selection rank which is explained by the out-of-work list

rank. The formula 1-r* measures the variance in selection

not explained by the out-of-work list. Of the seventeen

lists examined, on only one was more than one-third of

the selection rank predictable or explainable based on out-

of-work list rank. On another list the position on the

out-of-work list explained only .6% of the selection list

ranking.

[356] °

Percent

Variance

Rank Percent Not

Correlation Variance Explained

List Coefficient (r) Explained (+2) (1-r2)

Grp. I-A

# 3 22 48 95.2

#5 40 16.0 84.0

#9 37 13.7 86.3

#12 43 18.5 81.5

#15 4 29.2 70.8

Grp. I

# 4 .20 4.0 96.0

#7 55 30.3 69.7

#10 52 27.0 73.0

#13 46 212 78.8

#16 62 38.4 61.6

* These page references are to 469 F. Supp. 329 (1978).

District Court Opinion A63

Percent

Variance

Rank Percent Not

Correlation Variance Explained

List Coefficient (r) Explained (r2) (1-r2)

Grp. Il

#2 08 0.6 99.4

Oilers & RA

#1 24 5.8 94.2

# 6 38 14.4 85.6

# 8 44 19.4 80.6

#11 44 19.4 90.6

#14 46 21.2 78.8

#17 45 20.3 79.7

The average for all lists indicates that 82.5% of variance is

the result of factors other than order on the out-of-work

list. Although there exists a possibility that selections

based on skill could theoretically have created discrepan-

cies in selection rank, plaintiffs point out, and I agree,

that the low correlation on the single skill oilers and RA

lists (a correlation very like that for the other lists) itself

tends to disprove the theory that “skills” explain the vari-

ance.”

22. It is also noteworthy that the process of making referrals

based on skill was not an absolutely formal one and did not, ac-

cording to Mr. Ciavaglia, the District I dispatcher, arise “that

often.” Tr. 2035. Skill reversals were made by Ciavaglia accord-

ing to his memory and work record notations. The work records

are a wholly unreliable source of skill information.

AG4 District Court Opinion

The next statistical test performed on the seventeen

lists was to determine whether predictability of selections

from out-of-work list ranking increased depending on the

type of list. A table indicating the percent of explained

variance within groups, with and without ranking those

who were not referred at all, is below:

Including Deleting

Group non-referred non-referred

I-A 15.7 14.2

I 20.6 21.9

II 0.6 2.0

Oilers & RA 15.8 14.1

17.5 17.6

The percentage of explained variance is relatively small.

Siskin prepared yet another chart, an “expectancy

chart,” indicating the probability of selection for persons

listed in respective quintiles of each out-of-work list:

[357]

Percentage Probability of Selection Order

Compared to Work List Order

Percent Selected in Quintile of Selection List

Ist 2nd 3rd 4th Sth

Quintile Ist 24.0% 24.0% 17.8% 175% 16.6% 100

onout- 2nd 290 283 155 15.1 121 100

of-work 3rd 322 289 172 126 93 100

list § 4th 140 187 341 174 158 100

5th 21 11 167 364 438 100

100 100 100 100 += 100

* These page references are to 469 F. Supp. 329 (1978).

District Court Opinion A65

As can readily be seen the probability of selection is not

increased by being in the first or even second quintile on

the out-of-work list, although someone in the fifth quintile

of the out-of-work list is not at all likely to be selected

among the first or second selection list quintiles. While

this analysis in itself does not seek to identify race as the

factor creating the lack of correlation, it confirms that the

out-of-work list ranking is simply not the principal basis

for selection. This corroborates plaintiffs’ claims of dis-

crimination in the sense that it proves there is much room

for arbitrary and standardless selections. When combined

with the other statistical disparities considering the race

factor directly, this correlation study aids the inference of

discrimination.

Corroborative of the above data is the calculation of

data indicating clustering of minority workers referred

through the hiring hall system of Local 542. For the

period 1969-1971, Dr. Siskin examined union pension

records for all districts and determined that 69.6% of the

1488 employers reporting hours for the period reported

no minority hours at all. The breakdown by years is as

follows:

Active Firms Percent

Firms Reporting Reporting

Reporting No Minority No Minority

Year Hours Hours Hours

1969 1034 773 74.8

1970 1061 762 71.8

1971 1035 757 73.1

Twenty-three employers, according to Siskin, em-

ployed minorities during the three-year period as at least

A66 District Court Opinion

10% of their total hiring hall employees. These companies

were all in District I. They accounted for 32.41% of all

minority hours in that district but only 5.96% of total Dis-

trict I hours. Further, these employers received 17.17%

of District I minority referrals but only 7.43% of all Dis-

trict I referrals.

H. Other Proof

Proof of gross statistical disparities may itself consti-

tute a prima facie case of intentional pattern and practice

discrimination. International Brotherhood of Teamsters

v. United States, 431 U. S. 324, 97 S. Ct. 1843, 52 L. Ed.

2d 396 (1977); Hazelwood School District v. United

States, 433 U. S. 299, 97 S. Ct. 2736, 53 L. Ed. 2d 768

(1977). In this case there is more than statistical dis-

parity. There is evidence of the local union’s intentional

deceptions to avoid application of the Philadelphia Plan

as well as evidence of deception in denying the Benjamin

Franklin graduates union membership. These deceptions

(particularly relating to the Philadelphia Plan) were, I

find, engaged in with the purpose of appearing to advo-

cate equal minority participation, and hence of assuring

the flow of federal contract monies, while at the same time

duplicitously resisting such participation at meaningful

steps of implementation. Plaintiffs need offer no more

than this to establish their class claim of intentional dis-

crimination and bring the abstract statistics to life. Plain-

tiffs other proof consists, in part, of evidence showing

specifically enumerated departure from customary entry

[358] °

methods and a relation between method of entry and race

which cannot be viewed as coincidental. Plaintiffs also

* These page references are to 469 F. Supp. 329 (1978).

District Court Opinion A67

have presented testimony of twelve minority individuals

relating their experiences in seeking access to the union

hiring hall. Both types of evidence seek to prove a pat-

tern of discriminatory conduct, or to corroborate other

proof of discrimination, without relying directly on an

expert's opinion concerning the exact probabilities that the

specific instances can be generalized. Such evidence has

long been an important part of employment discrimina-

tion suits and assumes evidentiary significance by estab-

lishing or tending to confirm in the concrete that which

statistics have abstractly assured was highly probable.

Both types of non-statistical proof may create or corrobo-

rate an inference of discrimination.

1. Entry Discrimination

First for consideration is the proof of a variety of

methods for entering Local 542 which have either departed

from the customary entry avenues, and in the process have

provided primarily white entry routes, or in the ordinary

course of operation have resulted in the exclusion of a dis-

proportionate number of minority applicants.

The initial formally permissible methods of, or steps

toward, entry are through what are called A and B branch

Organization, C and D branch Organization, C branch

Miscellaneous, the Registered Apprenticeship Program,

and the Registrant Program. As indicated earlier intra-

and inter-union transfers may also be accomplished.

Entry through A and B Organization may occur when

employers previously not committed to the union bargain-

ing agreement decide to become committed. Their con-

struction work forces are issued union books at that time

without having to meet any qualificational criteria. (A

and B branches were abolished as of December 31, 1974).

Entry through C and D branch Organization is accom-

A68 District Court Opinion

plished when non-union workers choose the union as their

bargaining agent, usually by an election procedure. C

branch Miscellaneous entry is the entry route for new

workers hired by employers whose workforces had previ-

ously been organized. The Registered Apprenticeship

Program, a four-year training program, provides an entry

method for essentially unskilled would-be operators who

meet certain qualifications and who pass written tests.”

Lastly, there is the registrant program, A and B. A-regis-

trants were unskilled persons desiring to be operating

engineers who simply registered with the union and ob-

tained an A-registrant book. After achieving 2500 hours

of experience membership in the union became available.

This method of entry was eliminated in 1968. B-Regis-

trants, prior to August 1, were those claiming to be ex-

perienced operating engineers who were issued B-registrant

books. On August 1, 1970, however, a written and field

testing procedure went into effect to verify the qualifica-

tions of B-registrants. These tests have not been validated

as to their job-relatedness.

Intra-union transfers render entry into the non-con-

struction branches relevant to the issue of entry into the

construction branches. Branch members may transfer into

construction, by varying accounts, either after attaining

2500 hours, after attaining journeyman C branch status, or

without restriction or specific rules. Transfers into the

parent body could be effectuated from A branch after four

years or B branch after three years. Inter-Union transfers

have also been permitted.

The following table, based on union records, indicates

the minority composition of persons entering 542 through

the above described methods between 1970 and 1975:

23. This is described more fully under the heading JATC

below.

District Court Opinion A69

[359] °

A Registrant,

A Organization B Registrant RA

B Org.; C Org.; (Skills (test and

Entries C Misc. Required) diploma) Total

White 1414 581 338 2333

Minority 27 79 59 165

Total 1441 660 397 2498

% Min. 1.87 11.98% 14.86 6.6%

From this data it is a simple matter to determine that

most (60.6%) white entrants into 542, or into a category

through which access to 542 could be attained, entered

without being subjected to any standards of qualification.

Only 16.4% of new minority entrants or affiliates, however,

entered in such a way. Only 14.5% of whites entering or

becoming affiliated with 542 entered through the Regis-

tered Apprentice Program, although 35.8% of minority en-

trants or affiliates came into their positions through the RA

program. A significant 47.9% of all new minority entrants

or affiliates in this period became B registrants, while only

24.9% of whites achieved this status.

A closer breakdown reveals even more emphatically

the minority underrepresentation in entries via B branch

Organization:

A Org. B Org.

Total Minority Total Minority

1970 1 0 27 1

1971 5 0 58 1

1972 3 0 76 2

1973 1 0 103 0

1974 0 0 93 3

1975 0 0 20 0

* These page references are to 469 F. Supp. 329 (1978).

A70 District Court Opinion

Only seven out of 377 B Organization entries were minori-

ties, a total of about 1.9%, much less than either the minor-

ity labor pool percentage or the percentage of minority

union members.

Focusing on C-Branch also reveals diminutive minor-

ity participation in the new entries to that branch. Be-

tween 1970 and 1975 only 8 (1%) of 768 C Miscellaneous

entries were minority members, and only 11 (4.5%) of

242 individuals entering by way of C Organization were

minority members. By 1976 minority representation in C

branch was only 3.9%.

As the minority rate of entry into and population of

C branch has become relatively insubstantial, the minority

representation among registrants has been fairly constantly

greater than the minority labor pool percentage in the 542

geographical realm.

District I Union

Year Total Min. % Min. Total Min. % Min.

1972 233 49 21.0 340 55 16.2

1973 163 32 19.6 224 3A 15.2

1974 145 32 22.1 196 33 16.8

1975 121 27 22.3 169 28 16.6

1976 144 24 16.7

The rate of minority entrants into the registrant program

between 1969 and 1975 was itself commensurate with

labor pool percentages at 12.4% (103 out of 832). Of 44A

registrants entering Local 542 between 1970 and 1975 only

1 was a minority. Given these indicia, it is reasonable

to conclude that there was among entrants a minority

concentration in the B registrant non-member group.

District Court Opinion AT71

[360] °

What is indicated by these discrepancies is that the

union maintained channels of access which were in prac-

tice primarily white entry channels or primarily black

entry channels. Those channels which were primarily

black tended to be the ones with the strictest requirements.

The B registrant entry and RA entry were the only methods

requiring any testing.

The segregative channelling effect is explained some-

what by other non-legitimate methods through which entry

or affiliations with 542 have been accomplished. Foremost

among these methods is the simplest—direct and unex-

plained entry. Plaintiffs have assembled a list of forty-

three white individuals who have entered 542’s parent

body or A or B branches since 1970 without having been

registrants and without having entered through organiza-

tion, C branch, RA program or interunion transfer. No

minorities have entered in this way.

Particular instances of direct entry also provide an

insight into the union management's role therein. The

direct entry of one Nicholas D’Ambrosia, Jr., son of a

former member of 542’s Executive Board, received em-

phatic treatment in plaintiffs’ proof. Testimony at trial

reveals that Robert Walsh, business manager of 542, was

informed that D’Ambrosia possessed no union book of any

kind. Walsh instructed Ciavaglia to remove D’Ambrosia if

this was found to be true. Ciavaglia determined that

D’Ambrosia had been improperly referred as an oiler by

one of the District I business agents, Joseph O'Donoghue.

O'Donoghue refused to alter his position, while not deny-

ing its impropriety in his discussion with Ciavaglia.

D’Ambrosia was never removed from his job. This case is

illustrative of the numerous instances of nepotistic direct

* These page references are to 469 F. Supp. 329 (1978).

A72 District Court Opinion

entries documented by plaintiffs. Although these instances

cannot here be detailed, plaintiffs’ documentation as re-

ferred to in the Introduction is credited.

2. Individual Testimony

The experiences narrated below, while not necessarily

presented to establish individual claims of intentional dis-

crimination, reveal a pattern which is consistent with and

therefore relevant to the pattern of resistance to union

entry established by other evidence including statistical

proof. It is with this characterization that the following

redaction of individual testimony is provided. The order

of presentation is primarily based on the date of union

affiliation.

(a) Samuel Long

Years ago Samuel Long learned to operate heavy

equipment in the Army in a segregated unit which trained

at Fort Bragg. After service time on construction in

Africa, Long was honorably discharged in 1944.

Long unsuccessfully attempted entry into 542 by

seeking work three times between 1950 and 1956 from a

master mechanic at the United States Steel plant in Mor-

risville. His father-in-law was an operating engineer there.

(In the meantime he had been employed by non-union

contractors at the Philadelphia Navy Yard until 1953 and

later in private industry.) In 1956 Long was accepted

into the union as a B branch member after finally obtain-

ing employment at the U. S. Steel plant. In 1959 Long

entered the parent body and in 1960 he was on the cam-

paign committee for Robert Walsh, who, Long testified,

campaigned for the position of Business Manager on a

ticket opposing discrimination against blacks, Irish and

Italians.

Long’s testimony does not reveal discrimination by

the union against him. He apparently did not apply di-

District Court Opinion A73

rectly for union membership during his efforts to obtain

employment at U. S. Steel. However, Long's testimony as

to the foundation of Mr. Walsh’s campaign for business

manager provides some background evidence that the

issue of racial discrimination was alive prior to the time

period defined by the statute of limitations in this suit.

(b) Willis Fox

In April, 1958 Willis Fox obtained a job with a Phila-

delphia contractor, Amenio De Paul, and began work as a

laborer. He was

[361] °

later assigned to backhoes and other equipment before

being laid off in June, 1961.

Fox's initial attempt to join Local 542 was in August

1961. At that time James Grant, the hiring hall agent,

iuformed him that the books were frozen—that too many

men were out of work and his application would not be

accepted. Fox returned to work for De Paul, and later

worked for Mario Massi, first as a truck driver and then

as an operator. In August 1964, Fox returned to the Hall

again seeking entry into Local 542, and was told to re-

turn in October. In October Grant told him to return in

November at which time he completed his application,

paid $40.00 in fees, and was issued a B registrant book.

Three years later, in 1967, he became a member of Local

542.

Fox testified that both as a registrant and B branch

member his referrals were exclusively dirt work jobs op-

erating loaders and pippins (relatively low-paying ma-

chinery); he received no referrals for cranes or graders.

When he complained in early 1969 about this, Ciavaglia

stated that upgraded referrals were impossible because

* These page references are to 469 F. Supp. 329 (1978).

A74 District Court Opinion

so many men were ahead of him. Fox’s response was to

find crane work through another local in New York, and

over the next five years, sp:aning July 1969 through Feb-

ruary 1974, he worked intermittently in New York as a

crane operator. Fox's association with Local 542 con-

tinued through that period.

Fox reported being sent out by Ciavaglia on a Heister

roller to the Glasgow, Inc. on August 23, 1973. All three

rollers at that job site were operated by blacks. The

master mechanic had promised that Fox would be reas-

signed to higher paying equipment when it came in, but

instead assigned whites over him. At that point Fox quit

and returned to New York.

Robert Ahmad received training in sheet metal draft-

ing before completing a correspondence course in survey-

ing, maintenance, and the operation of front end loaders,

dozers and scrapers from the Training Service Institute.

His field training consisted of a one-month course in

operating the front-end loader, dozers and scraper, and

was completed in Avenst 1963. Ahmad gained work ex-

perience as an operating engineer from George Saul

Metals, a non-union contractor.

Ahmad’s first attempt to join Local 542 was in Oc-

tober 1963. James Grant told him that the books were

closed and no work would be available until the summer.

Ahmad’s frequent subsequent contacts with the hiring hall

in search of employment proved fruitless, and by spring

1964 he had accepted a job as a truck driver. Although

Ahmad testified he continued to contact the union weekly

throughout 1964, he received no referrals. Ahmad got

his first job in July 1965 by volunteering for a three-day

job and falsely representing that he had the required

registrant’s book. He ultimately worked three weeks on a

District Court Opinion AT75

front-end loader and was laid off when the job ended.

When James Grant, the hiring hall agent, later confronted

him with his misrepresentation, Ahmad explained that it

was the only way he felt he could get work. It was then

that Grant accepted Ahmad’s tender of union fees 2nd

dues, issued him a B registrant's green book, and told him

he would get oiling jobs.

Between September and November 1965, Ahmad re-

ceived six referrals, four of which were oiling jobs. His

next referral did not come until May 1966—a one-day

job. Ahmad testified that his referrals appeared to cease

at a point in November 1965, a time when William

Ciavaglia replaced Grant as the hiring hall dispatcher.

Ahmad filed a complaint of unfair discrimination with the

Commission on Human Relations sometime during this

period, but the Commission ruled against him.

Ahmad applied for the union apprenticeship program

on December 27, 1965, but was told by Robert Emrick,

the apprenticeship coordinator, that he was ineligible be-

cause he had previous experience on operating engineers’

equipment. Emrick then stamped a “B” on Ahmad’s

registrant's book, designating it an operator's book. In

[362] °

spite of this Ahmad continued to pursue admission to the

apprenticeship program, for upgrading his skills, and took

a written test. In May 1966 he was notified of his dis-

qualification because of low scores.

On July 3, 1966 Ahmad was again contacted by James

Grant, then the C Branch agent, and told to report to the

Union Paving Company. Grant informed Ahmad that his

affiliation would be with the C Branch; Ahmad’s accept-

ance was under protest that as a B registrant he wanted

* These page references are to 469 F. Supp. 329 (1978).

A76 District Court Opinion

work commensurate with his operating engineer branch

status. For the next two years Ahmad did no operating

work, but did non-construction C branch type work, earn-

ing between $2.50 and $2.78 per hour. During that time

Ahmad also accumulated over 3,000 hours. Because of

this, Grant verbally informed him that his branch affilia-

tion would have to change formally to C. Again, under

protest, Ahmad acquiesced. He stated he was never in-

formed of his eligibility to transfer from C Branch into the

parent body of Local 542.

Ahmad participated in three training programs while

in the C branch. Grant informed him of Operation Step-

ping Stone although Ahmad received no written notice.

Ahmad completed the program on April 13, 1969, having

received training on the back hoe. Ahmad also trained at

the union training site in Delaware for a period of one

month in both 1970 and 1972, learning crane operations.

After Operation Stepping Stone Ahmad received no

union referrals for backhoe or crane work. Under Grant's

encouragement, he finally accepted a job as a cement mixer

with Warner Company at $3.36 per hour. He later testi-

fied that while at Warner he worked in five different shops,

and from his experience, only whites, were crane operators

or front-end loaders. Mixers, he testified, were black. As

of November 1976 he was still employed at Warner in the

same capacity, but earning $8.00 per hour. Ahmad indi-

cated that since his work with the C branch was perma-

nent, he had decided against leaving, having relinquished

hope of obtaining work as an operating engineer.

(d) John Dent

John Dent received his initial training in heavy equip-

ment operation during three years of military service end-

ing in March 1963. In January, 1964 he enrolled in the

District Court Opinion AT77

Associated Heavy Equipment School in Florida, complet-

ing a six-week combined crane and diesel mechanic course.

He then moved to Philadelphia in March, 1964, seeking

work as an operating engineer, and discovered that hiring

practices required that he proceed through the union.

Dent's first contact with Local 542 was in late March

or early April 1964, at which time he was informed by

James Grant that no work was available and that he should

return in the summer. He was given no information re-

garding the operational procedures of the union or its

branches, nor was he given an application form, despite

his stated intent to apply for membership.

Over the following two years Dent made numerous

unsuccessful attempts to gain entry into Local 542. Fi-

nally, with no apparent indication of why his request for

entry to the hiring hall system was accepted, Dent was

permitted to become a green book registrant on April 1,

1966. He paid $30.00 in dues and completed an appren-

ticeship training application, leaving it with Ciavaglia and

Grant. Dent, however, never participated in the ap-

prenticeship program. Although Robert Emrick, the

apprenticeship coordinator, had informed him sometime

during the summer of 1966 that he was listed and would

be notified, he was informed seven months later in No-

vember 1966 by Emrick’s secretary that he was not on the

list. In a follow-up inquiry in early 1967, Emrick in-

formed Dent of his ineligibility for the program based on

his green book registrant status. (As indicated below a

number of white B registrants were admitted to the RA

program.) Dent also did not receive his first job referral

until November 1966, seven months after his registration.

This job was with a rental company and Dent was laid

off after one week; his second referral was not until June

1967.

A78 District Court Opinion

[363] °

All in all, during his green book registrant period, ten of

Dent's fifteen referrals were rental company jobs (short-

term work) operating pippin back hoes. He received no

referrals for the high paying crane work. He was never

officially informed of the upgrading program Operation

Stepping Stone. After becoming aware of its existence

through the Labor Department and from other journey-

men members of 542, Dent subsequently applied and com-

pleted the six-week program in February 1969.

In December 1969 Dent became a B branch member,

having completed the requisite 2500 hours.* Even with

B branch status, about 90% of Dent’s work was limited to

the pippin back hoe—there were no referrals for cranes and

other heavy equipment—and these jobs were primarily

rental company referrals. Dent also discovered that whites

below him on the out-of-work list were being called ahead

of him. He testified that he had checked the out-of-work

list positions of several whites whom he observed on jobs

for which he was qualified and discovered after examining

the lists that they occupied a list position beneath his. He

also witnessed a situation in which a black, ostensibly laid

off due to the unavailability of work, was replaced by a

white worker on the next day.

During Dent's association and membership with Local

542, dating from June 1967, his jobs ranged in length from

one day to several months, although short-term jobs were

the norm. Dent was laid off either when there was no

need for his equipment or when his jobs were finished.

The record also indicates five instances between June

1968 and July 1974 when Dent refused work referred to

him by the union, and one instance where he quit a job

* These page references are to 469 F. Supp. 329 (1978).

24. Dent became a parent body member in August of 1973.

District Court Opinion A79

in July 1972. Dent’s refusals to work were based alter-

nately on his objections to the distances involved, the

brevity of the work during cold weather, and his lack of

familiarity with the equipment used. His quitting incident

was precipitated by a disagreement over work rules with

the job contractor.

On June 20, 1972, Dent was one of those attacked by

a group of white operating engineers at the District I

hiring hall in retaliation for the filing of the present suit.

He recounts being treated poorly on his job afterwards.

He testified that he was given particularly undesirable

work, such as a summer job in the “hole,” 40 to 50 feet

underground, breaking concrete with a hydraulic hammer.

Two years later, in August 1974, Dent and his family left

Philadelphia to relocate in Georgia, because of what he felt

to be intolerable working conditions existing in Philadel-

phia.

(e) Elijah Dukes

Elijah Dukes began his operating work in the 1950s.

The first union contractor who employed him was the

Plumbing and Heating Service Co. At laborer’s wages, he

operated a pippin for about five years. In 1958, Dukes

was told by a 542 business agent—a Mr. O’Donoghue—

to leave his equipment. He did not hold a union book

or a registrant's book. His immediate replacement was a

white employee. The business agent told Dukes that in

the next spring he would be taken into the Local. But

Mr. Grant refused even to give Dukes an application. (At

some time Dukes did file a card with 542 but was never

contacted and did not know the significance of the card. )

Once, twice, or more per week Dukes returned for a time

to the 542 hiring hall in vain.

Dukes moved on to another union construction

company but was still unable to enter the union.

A80 District Court Opinion

On about three more occasions he was removed from an

operator's job at the behest of a union business agent.

This time such removal resulted merely in reassignment to

another pippin. All in all it took Dukes eight years, until

August 1, 1966, to obtain a registrant’s book.

(f) Charles Iseley

Charles Iseley, after successfully completing in 1966 a

six-week privately operated training course for operating

engineers,

[364] °

sought entry into the union. He was not aware of the

existence of the registrant or apprenticeship programs, and

despite conversations with Ciavaglia was never advised.

Iseley’s attempt to enter the operating engineers profes-

sion was met with advice from Ciavaglia to obtain two

references. He could not obtain such references at the

hiring hall after repeated visits. Although Ciavaglia ad-

vised him to see Al Holland, Ciavaglia did not give him

Holland's phone number. He admitted that Holland was

difficult to find. On one occasion he obtained work from

a union employer, but when three men asked him whether

he had a book and he responded negatively, they asked

him to leave the equipment. He refused, but was dis-

missed several days later. Thereafter he was employed

in the Philadelphia prison system.

Much later, responding to a newspaper notice re-

garding an Outreach Program, Iseley met Al Holland.

Thereafter in 1971 Iseley applied for and took a written

and field test for classification as a B registrant. Although

he passed the written test he failed the field test which

related to front-end loaders. Admitting his failure on this

piece of equipment, Iseley observed: “I guess I may have

* These page references are to 469 F. Supp. 329 (1978).

District Court Opinion A81

been a little rusty after 66 to that point.” Tr. 6387. He

then became employed at Community Legal Services as

an investigator and has never since worked as an operat-

ing engineer.

(g) John Dodson

John Dodson attained experience operating cranes,

bulldozers, and other heavy equipment in the Philadelphia

Navy Yard and several other places, and in 1954 was em-

ployed by Cheltenham Township, a suburban community

north of Philadelphia, as a dump truck driver and then as

a heavy equipment operator. Because Cheltenham had

a contract with 542, the union business agent, Robert Hel-

man, objected to his working on equipment without a

“book.” Dodson sought a book only through his employer,

not directly from the union. Even after several years he

had not received one.

Dodson later worked for Marino Massi as an equip-

ment operator. Massi’s company was a union company,

but Massi was aware that Dodson was not a member and

had no book. Two business agents removed Dodson

from his job a total of about seven or eight times between

them. In about 1960 Dodson went to the hiring hall re-

questing an operators’ book and was denied one because,

in the recounted words of union official James Grant,

“We got too many men out of work ourselves.” Tr. 7049.

On another occasion in 1967 or 1968, Dodson took to the

hiring hall a note from Mr. Massi saying he owned two

pieces of equipment, on the theory that it would help him

obtain a book. Grant told him that if an operator were

put on both pieces he would consider Dodson’s request.

Dodson then related: “So, I said, what am I supposed to

do? He said, well, go drive a truck.” Tr. 7051. Shortly

thereafter, th» dates are somewhat confused, Dodson re-

moved to New York where he did receive a parent body

A82 District Court Opinion

book from Local 15. Subsequently he returned to Phila-

delphia and spoke to Grant who told him 542 needed oper-

ators. Sometime in 1968 he received a book and began

receiving referrals. Although Mr. Walsh wished at first

to give Dodson a B registrant book, Dodson insisted on

and ultimately received a parent body 542 book on the

ground that he was a parent body member of Local 15.

(h) Lloyd Hudson

Lloyd Hudson is a Vietnam veteran, honorably cis-

charged in 1966. In order to begin a career as an operat-

ing engineer he attended a Training Services Institute pro-

gram in Northeastern Pennsylvania from April 1968 to

September 1968. This program has no apparent connec-

tion to Local 542 or any other defendant, and Hudson be-

came aware of it through the Commonwealth’s Bureau of

Employment Security (BES).

Having successfully completed his six month pro-

gram, Hudson went to the union hiring hall and spoke to

Al Holland, showing him his training certificate. Holland

said he would be in touch with Hudson “in

[365] °

the near future.” Tr. 6400. Holland took Hudson to

Emrick who also said he would be in touch. With the

exception that Hudson subsequently encountered Holland

at the hiring hall and was told that nothing was available,

no one from the union ever called or contacted him.

(Hudson did make a phone call to the union and spoke to

some unspecified individual who referred him to Holland.

Although Hudson was told that he “first must be a mem-

ber of the Local,” Tr. 6403, it is not positively clear that

* These page references are to 469 F. Supp. 329 (1978).

District Court Opinion A83

Hudson ever told that person that he was inquiring into

anything but membership in the union.) At no time,

however, was Hudson ever advised of the existence of a

JATC, registrant or C branch entry.

On September 23, 1968, after receiving no satisfactory

communication from the union, Hudson took (at the sug-

gestion of Mr. Sgrow from BES), a BES test, one of the

two tests used to determine admittance to the JATC pro-

gram at that time. Mr. Sgrow wrote to Emrick the fol-

lowing day stating that Hudson scored “considerably

higher than the minimum scores required.” (Emphasis in

original.) Hudson, never knowing of the JATC’s RA pro-

gram, did not file any application for it; nor di’ he re-

ceive any correspondence or other communication from

the JATC. A file at JATC, however, reveals Hudson was

rejected by letter of May 5, 1969, for failure to take the

JATC test, of which he received no notice. Until 1970

Hudson was residing at the address he originally gave the

union.

Cross-examination established that Hudson had been

convicted of fraud in cashing stolen United States Govern-

ment Social Security checks, a crime for which he received

a three year sentence.

(i) Duane B. Johnson

Duane Johnson received his training in operating en-

gineers’ equipment during his service in the armed forces,

accumulating four years of experience by the time of his

October 28, 1969 discharge. Following a two-month pro-

gram in equipment repair and maintenance, Johnson served

for eighteen months in the Construction Engineer Unit in

Germany operating front-end loaders, back hoes, graders,

and dozers. In 1967 he was sent to Vietnam as a heavy

equipment operator in the 15th Combat Engineers Unit,

A84 District Court Opinion

operating the same equipment, including cranes, often-

times in the combat zone. Returning to the United States,

he was assigned to the 75th Construction Engineers at

Fort Meade, Maryland, again as a heavy equipment oper-

ator handling front-end loaders, dozers, graders, backhoes,

scrapers, compactors, rollers and cranes.

Johnson’s first attempt to join Local 542 was in Sep-

tember 1969 when he was advised by Ciavaglia to reapply

after his discharge. Johnson returned within a week of

that date, and was informed that his military service was

not suitable for civilian purposes. Ciavaglia told him that

further training at a heavy equipment operating school

would be necessary. Johnson was not told of the union’s

registrant program, procedures for obtaining a green book

or taking a field test, the apprenticeship program, poten-

tial C branch membership, or the necessity of paying a

service fee for work referrals.

Johnson borrowed $1,000 to cover the cost of attend-

ing a two-month program at the American Training Serv-

ices, Inc., in New Jersey. We trained on the identical

equipment he had used in the army. Upon completion in

February 1970, Johnson returned to Ciavaglia and was

told that because of the large number of unemployed, it

would take at least one to two years for him to obtain work,

but he would be put on the out-of-work list. Johnson

continued to call or visit the hall weekly, but was unable

to procure any jobs from Local 542 through the end of

1970. Johnson was informed at this point of the RA pro-

gram and he applied for entry thereto toward the end of

1970. He was never notified concerning that application.

Between October 1969 and December 1970 Johnson

worked as an operating engineer on two nonunion jobs.

In February 1971 he accepted a nonunion engineering job

with I. T. & T. in Greenland where he worked until the

end of 1971.

District Court Opinion A85

[366] °

Johnson’s third but unsuccessful attempt to join Local

542 followed his return to Philadelphia from Greenland

at the end of 1971. At the beginning of 1972 he applied

a second time to the Apprenticeship Committee, and at

that time met Emrick. At the end of their conversation,

Emrick gave Johnson his card, indicating that he should

present it to Ciavaglia, the dispatcher. Ciavaglia refused

to acknowledge the gesture, and Johnson was still without

work,

In May 1972 Johnson was tested on the front end

loader, back hoe, and bulldozer as part of the union field

test. He passed; this was the same equipment he had used

in the army. He later spoke with Ciavaglia who again in-

dicated that high unemployment had virtually foreclosed

present and near-future work opportunities for him. John-

son was not given a green book, and he was advised by

Ciavaglia that it was unnecessary to pay dues since it

would take at least two to two-and-one-half years before

he would obtain work. He was told that he would be

placed on the referral list. On cross-examination Johnson

acknowledged he had on February 17, 1972, signed regis-

trant papers which contained notice of referral fees, but

he said that he did not pay the fees based on Ciavaglia’s

statement to him. He never received any subsequent no-

tification from the union that his registration card had been

withdrawn for any reason.” Concerning his RA applica-

tion, Johnson was notified that because of changes in fed-

eral regulations he would have to reapply. He was told

this after having successfully achieved a waiting list sta-

* These page references are to 469 F. Supp. 329 (1978).

25. It must be noted that despite Johnson’s skills on several

types of machinery and although he informed the union of these

skills, no machinery skills were listed on the work record.

A86 District Court Opinion

tus. He had not received any response to his reapplica-

tion.

Johnson made other unsuccessful attempts to get

union work during the summer of 1972 and throughout

1973. Finally, on August 30, 1973 he filed a charge of

discrimination with the EEOC. One month later he re-

ceived a call from Ciavaglia asking if he was available for

work. Johnson testified that when he found out it was for

“one or two days” he refused acceptance because he then

held a steady job. As of November, 1976, Johnson has

had no additional offer of jobs through Local 542, although

he indicated that he still wanted to be an operating en-

gineer and a 542 member.

(j) George Benjamin

As a young boy George Benjamin operated machinery

on his father’s farm in South Carolina. By the time he

moved to Philadelphia at age eighteen, he had operated

tractors, dozers, cranes and front-end loaders. For several

years he worked as a general laborer for wrecking com-

panies, and in 1962 was hired by Hauser. Within a few

months he was promoted to foreman, responsible for

moving (not operating) heavy equipment on Hauser’s

union jobs. In 1963 or 1964 he began operating heavy

equipment—including crane loaders, small dozers, and

pans—on a nonunion job at a Hauser dump. Benjamin

worked there through 1973 when he left to start his own

demolition business. Never financially successful at this

venture, he went to work for Hargrove Company, doing

nonunion work on crane loaders and backhoes. As of No-

vember, 1976 he had returned to Hauser, again moving

heavy equipment.

Benjamin attempted to join the union in the spring

of 1969 and spring of 1970. Both times he was told by

District Court Opinion A87

Ciavaglia that the books were closed and no applications

were available. On his third attempt in 1971 he was

given an application and later notified of his eligibility

to take the registrant test (written and field). Benjamin

passed the tests on October 21, 1971, and was told he

could obtain a registrant’s book at the hiring hall. On

November 2, 1971 Benjamin paid $49.00 in fees and was

issued a green book. He testified that Ciavaglia and

Holland told him he would be notified for work, and rely-

ing on that did not actively pursue employment by regu-

larly contacting the union. Benjamin’s first job offer came

[367] °

letter almost two years later, arriving while he was in

North Carolina visiting his mother who was ill. His wife

phoned him this information and he returned to Philadel-

phia that night, visiting the hiring hall in the morning.

Ciavaglia had already dispatched another operator saying

he could not reach him.” No other jobs were ever offered

to Benjamin.

In addition, in spite of Benjamin’s timely remittance

of dues throughout the period from November 1971

through November 1976 (totaling $500), his name was

omitted from the Group III out-of-work list from Decem-

ber 1973 through June 1975. In addition, testimony also

indicates that although his name was on the July 1973 list,

it was crossed off and he was not advised of that fact.

* These page references are to 469 F. Supp. 329 (1978).

26. Benjamin's phone number had not changed since he be-

came a registrant. He also testified that someone was generally

at home even when he was not.

Benjamin also testified that he informed Ciavaglia at the time

he was issued a green book that he could operate several specific

types of machinery; however, no skills were listed on his work

record.

A88& District Court Opinion

(There is no testimony indicating whether he was ex-

cluded from the August through November 1973 out-of-

work lists. )

Benjamin's most recent union contact was in October

1976 when he spoke to William Sautter about his situation.

Sautter requested that he fill out a work sheet, and then

advised him that the employment situation was bad but

that he would be notified of the availability of work later.

(k) Timothy O. Roundtree .

Timothy O. Roundtree became a green book reg-

istrant of Local 542 on January 2, 1970, after two previous

unsuccessful attempts to gain entry. His first attempt was

in October 1968. An unidentified woman at the union

office informed him that the books were closed and that

she could not help him. Roundtree’s second attempt was

in July, 1969, following a reprimand by Holland for han-

dling operating engineers’ equipment for Tony DePaul

without union clearance. Holland directed Roundtree to

contact Ciavaglia for union registration; however, when

Roundtree approached Ciavaglia with Holland’s message,

Ciavaglia disclaimed any knowledge of that contact. Fol-

lowing a second reprimand in later December, Holland

finally agreed to meet personally and register Roundtree

at the Union.

Roundtree paid his $27.00 dues and his application

was accepted despite Ciavaglia’s protest that his entry be

delayed until spring. At that time Roundtree was not

provided with either a green book or a copy of the union

contract. He was also not informed of the hiring hall

procedures, including the 2500 hour work requirement for

union membership, although he was warned against oper-

ating any equipment without prior union approval.

At the time of his registration, Roundtree was em-

ployed by Tony DePaul for whom he had been working

District Court Opinion A89

since 1960 as a laborer and truck driver. It was there that

he gained experience handling operating engineers’ equip-

ment. However, after Roundtree became a registrant,

DePaul requested the union to clear Roundtree for work

as an operating engineer. This request was refused.

Roundtree thereafter continued to work for DePaul in a

non-operating engineering capacity until he was laid off in

December 1972.

Despite his status as a green book registrant during

the period between 1970 and 1976, Roundtree never once

obtained work as an operating engineer—this despite the

fact that he remained constantly available, tendered

timely payments of his union fees (totaling $700.00) and

pursued employment by regular calls and visits to the

union. On one occasion, as late as January 1976, when

he complained to Ciavaglia and Walsh about his lack of

work, Roundtree was told that times were bad and many

persons were without work. However, several months

earlier, during a June 1975 visit to the District I hiring

hall, Roundtree had discovered that he was not listed on

the union out-of-work list. He complained at that time to

Ciavaglia’s assistant. Exhibits admitted at trial showed

that his name did not

[368] °

appear on out-of-work lists from December 1973 through

January 1975, but that on the Group III list for the com-

bined months of January through June 1975, his name

did appear in handwriting above the other typewritten

names.

The cross examination of Roundtree focused on the

issue whether Roundtree’s name was omitted from the

work list due to his failure to notify the union of his change

of address. Roundtree’s testimony is that he did advise

* These page references are to 469 F. Supp. 329 (1978).

A90 District Court Opinion

the union of the change of address in October 1972 when

he paid his dues by mail (that notice was sent accompany-

ing his dues book and payment). The union’s position is

that it did not receive notification until April 2, 1975 when

Roundtree informed Ciavaglia of the change during a

visit to the hall, as documented in his work record. The

union thus inferentially attributes the omission of Round-

tree’s name from the list to his failure to respond to a letter

of August 16, 1973. Roundtree, on the other hand, testi-

fied that he never received the August 1973 letter because

it was not sent to his new address, and that the union had

been notified of that change in October 1972. Roundtree

supports his position by testimony that the union has con-

tinued to return his dues book to his new address with each

subsequent payment he has made since October 1972.

(1) Cleveland Allen

Cleveland Allen accumulated six years experience op-

erating heavy equipment while serving in the armed forces

from April 1965 through March 1971. Following com-

pletion of a three month training program in the U. S.

Corps of Engineers where he learned to operate dozers,

bulldozers, rubber tire pans, trench machines, and air

compressors, Allen was sent as an operating engineer to

Vietnam twice (and received three commendations there ).

He was also sent to the Korean DMZ, and assigned to

several stateside engineering units working with civilian

operating engineers. Soon after his discharge on March

24, 1971, he further supplemented his training by attend-

ing the Universal Heavy Construction School.

In June 1971 Allen was referred to Local 542 by a

state employment office. At the hiring hall he spoke with

William Ciavaglia who provided him with an apprentice-

ship application. Several weeks later he was notified by

letter that he was to take the union’s written and field

District Court Opinion AQ]

examinations on August 28, 1971. Allen passed both tests

and became a green book registrant that day. He was

never accepted in the apprenticeship program. His first

job referral as a grader operator was with J. D. Morrissey

on August 31, 1971. He testified that although he had

worked satisfactorily as a grader operator for the first three

weeks, he was unexplainably replaced by a white opera-

tor and reassigned to a lower paid roller position. On

November 22, 1971 when he was laid off, he noted that

the operator who Lad replaced him on the grader was still

working. Allen also testified about his referral to the In-

dustrial Construction Company as a grader on June 8,

1972. When he reported to work he was assigned to a

lower paying roller position and, when he called = com-

plain, was then told by Ciavaglia to keep it. Allen indi-

cated that these switches occurred frequently in his ex-

perience.

Allen’s last job working as an operating engineer was

in October 1973 with Union Paving Co. Following that,

he worked as a laborer for Buchtel Power Company at its

Lynnewood Plant from August 27, 1974 through October

27, 1976 when he was laid off.” He once again contacted

Local 542 in an attempt to get work, but was told by

William Sautter that as a Group II out-of-work registrant

700 Group I out-of-work operating engineers were ahead

of him.

Allen testified that he had never refused a job from

the union and had always been available for work as an

operating engineer; that he had never been fired or sus-

27. Working the 8:00 a.m.-4:30 p.m. shift, Allen reported that

he observed Local 542 operating engineers on the job, numbering

85 to 100 men. Of that number no more than 5, at any given

time, were black—and they were working primarily as oilers, not

operators.

A92 District Court Opinion

[369] °

pended; and that he had always tendered timely payment-

in-full of his union fees. In 1971 Allen worked 522 hours;

in 1972, 689 hours; and in 1973, 575% hours.

(m) Conclusion

The above individual narrations reveal in varying de-

grees a pattern of delay or diversion either in acting upon

or in entertaining minority applications for hiring hall

status as well as a pattern of neglecting to advise these

minority applicants or would-be applicants of the avail-

able methods of entry. Each of the above individuals

had the requisite qualifications to obtain entry through

at least one entry method. The resistance to entry of

these individuals was not based upon a view that they

lacked such qualifications. In most of the cases, years

passed before any access was obtained, and once regis-

trant or other hiring hall status was achieved, the referrals

to operating engineer jobs were few. Some of the above

individuals were replaced on the job by white operators

without explanation or were deleted from the out-of-work

list without cause.

I find the above narrations credible in their descrip-

tion of resistance to equal minority opportunity through

the hiring hall. The testimony of Fox, Ahmad, Dent,

Dukes, Iseley, Dodson, Hudson, Johnson, Benjamin,

Roundtree, and Allen persuade me that union officials

acted deliberately to delay and resist applications, to fail

to advise applicants of methods of entry and application

procedures, and to fail in some instances to include on

out-of-work lists those entitled to be listed. This conduct

is consistent with the kind of deliberate resistance to minor-

ity participation shown by the deceptions contained in

* These page references are to 469 F. Supp. 329 (1978).

District Court Opinion A93

the Affirmative Action Program Agreement, replacing the

Philadelphia Plan, and in the treatment of Benjamin Frank-

lin trainees and other acts detailed above. This individual

proof in turn supports the statistical and other proof of

intentional discrimination (although such support is not

here deemed essential) much as did the evidence in

Teamsters that

“[nJumerous qualified blacks and Spanish-surnamed

American applicants who sought line driving jobs at

the company over the years, either had their requests

ignored, were given false or misleading information

about requirements, opportunities, and application

procedures, or were not considered and hired on the

same basis thet whites were considered and hired.”

[ Teamsters, 431 U. S. at 338, 97 S. Ct. at 1856 (quoting

district court) ].

In this case the individual minority applicants above

were sometimes ignored in their efforts to apply and were

given misleading or incomplete information about meth-

ods of entry. Although in most instances plaintiffs have

not specifically shown that the resistance to entry or em-

ployment of these individuals was followed by specific

instances of unresisted entry of white applicants in com-

parable positions, the evidence does show that there was

a constant flow of entries into the union and into the reg-

istrant program during every year in question. Union or

affiliated entrants viewed in general have been, dispro-

portionately to the labor pool percentage, white entrants.

In this respect the requirements of McDonnell Douglas

Corp. v. Green, 411 U. S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d

668 (1973), have been met, although they need not have

been to have rendered the individual proof relevant. Cf.

Furnco Construction Corp. v. Waters, 438 U. S. 567, 98

S. Ct. 2943, 57 L. Ed. 2d 957 (1978). This individual

A94 District Court Opinion

proof is not to be viewed out of the context of the other

proof in this case and I repeat that its principal effect is

to illustrate through individual instances how entry and

participation of minority applicants (statistically and

otherwise proven to have been intentionally discriminated

against) was resisted by union officials.

I. Rebuttal

Plaintiff's suit involves claims of both a pattern of in-

tentionally discriminatory treatment, International Broth-

erhood of Teamsters v. United States, 431 U. S. 324, 97

S. Ct. 1843, 52 L. Ed. 2d 396 (1977), and discriminatory

disparate impact, Griggs v.

[370] °

Duke Power Co., 401 U. S. 424, 91 S. Ct. 849, 28 L. Ed.

2d 158 (1971). Under Title VII, and by analogy under

§ 1981 in the employment discrimination context plaintiff

bears the burden of proof (persuasion) on the basic ele-

ments of his claims—(1) that intentional discrimination

took place or (2) that some employment practice pro-

duced a disparate racial impact.

As to the claim of intentional discrimination particu-

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