# Appendix — UNITED ENGINEERS & CONSTRUCTORS, INC. v. PENNSYLVANIA (Nos. 81-330, 81-280, 81-331, 81-332, 81-333) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0178%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1981 ## Text 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; (C) the desirability or undesirability of concen- 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, v. 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 Page Judgment of the United States Court of Appeals for the Tit Ghee on ccccccccesccfacccecccccoccnansonsent Al Opinion of the United States Court of Appeals for the Third GRID a cccccnceccccsctestconsssscessuaueennee A4 Opinion of the United States District Court for the Eastern Dbstshet of Pommapbvaln ...cccccccccccccccccscoseses AQ Supplemental Opinion of the United States District Court for the Eastern District of Pennsylvania ................. A213 Judgment and Decree of the United States District Court for the Eastern District of Pennsylvania ................ A228 Dest Dasnn Gaber OS 2... ccccccccccccccssnsssccecanean A255 Dost Damen Gale OB unc ccccce ccesccccsosccscesunaean A258 ead Gasman Ge GD nn ccccccccscccscccossenceneannen A265 ee Wieamnw Gee OG 2 cccccccesceccssecssesccuunenenn A266 Sat Brame Gate OB occ cccccccccoccccccocccssssennnne A269 Bad Deenn Ge OD oc cccccccccccccccenecncsesconans A273 Dame Demme Ge OF oc ccccccnscncsccccscduccuceqaueee A275 Dad Tea GP OD. o vcccccoccccvcccessesscossuanane A277 Ped Daren GO OD occ ccccccscenssscnsesecnncenneen A278 Dad Taam Ge GD cc ccc ccncsccoccccsdseccesunenen A282 Pst Damen Gee GE oc cconccssesccescesccscccuuneeee A287 Deed Deanne Gee GED occ cc vcccccccscccssssecncounnnnn A289 ee Gea GR GOD oo cos nécecccccccencuscasccneeee A303 oe FP A305 Dad Dhnsnan GRRE GOED occ ccnvcscsccescensscenseuenen A308 Dank Base Ge GED oc ccccnccccccssccncccecceoeunen A339 Deed Dae Gee Geo cccccccccsccwcsctscesecenmeee AS41 ee Pe A344 Deed Thame GG BED 0 ccccccccnccssccdsecceoccqunmenen A351 Bast Damen Galew GED occccccccvcscccccscccccscsauccun A352 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 A4 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] A7 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 v. 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 (c) Robert Ahmad (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 347 ° 348 ° 350 ° 350 ° 351 ° 352 ° 353 ° 355 ° 357 ° 358 ° 360 ° 360 ° 360 ° 361 ° 362 ° 363 ° PAGE 363 ° 364 ° 364 ° 365 ° 366 ° 367 ° * 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 ° 369 ° 370 ° 370 ° 375 ° 377 ° 377 ° 378 ° 379 ° 380 ° 380 ° 381 ° 384 ° 386 ° 387 ° 389 ° 390 ° 391 ° 394 ° 394 ° 394 ° 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 394 ° 395 ° 397 ° 398 ° 399 ° 399 ° 401 ° 401 ° 401 ° 402 ° 403 ° PAGE 407 ° 409 ° 409 ° 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; (c) all unskilled minority group members who wish, 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. P. 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 (c) Respondent discriminantly fails or refuses to 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0178%3A2. Public record. Not legal advice.