Petition — Carpenters 46 Northern California Counties Joint Apprenticeship and Training Committee and Training Board v. Linda Eldredge

8172027

- Supreme Court. U

Ho. FILED

APR 3B 1962

In the Supreme Co

OF THE ALEXANDER L. STEVAS.

CLERK

United States

Ocroser Term, 1981

Cxrpenters 46 NortHern Catirorn1a Cours

Jomuvr APPRENTICESHIP A&D TnaIx G COMMITTEE

anp Trarntnc Boarp,

Petitioner,

vs.

Lanpa Expreper and Curistive A. Mazor, individually

and on behalf of all others similarly situated,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIROUIT

SrepHen Moka

COUNSEL OF RECORD

Wastl S1z00

Moors, S1zoo & CaxTrWIII.

1333 Broadway, Suite 1040

Oakland, California 94612

Telephone: (415) 893-0717

On Behalf of the Petitioner

Above Named

BOWNE-PERNAU WALSH ¢ 190 NINTH ST. © &.F., CA 841038 + (415) 864-2500

QUESTION PRESENTED

Whether construction industry employers who provide

on-the-job training for carpenter apprentices, and who are

alleged to discriminate against women applicants, are nec-

essary parties in au action against an apprentice training

committee charged with sex discrimination because it allows

applicants to solicit jobs directly with employers, where the

employers can, as a practical matter, prevent realization of

any relief designed to assure women the same access to

apprentice training as men.

TABLE OF CONTENTS

Question presented

Opinion below

Jurisdicti

Provisions of law involved

Statement of the case

Reason for granting the writ

A. The decision below conflicts with decisions of

this court and several circuit courts of appeals

requiring joinder, pursuant to Rule 19, of absent

parties who can, as a practical matter, frustrate

intended relief

Conclusion

19

iii

TABLE OF AUTHORITIES CITED

Cases

Cedillo v. International Association of Bridge and

Structural Iron Workers, Local Union No. 1 (7th

T

Evans v. Sheraton Park Hotel (D.C. Cir. 1974) 503

F. 2d 177

Gilmore v. Kansas City Terminal Railway Company

(8th Cir. 1975) 509 F. 2d 48 ————

Gnerich v. Rutter (1924) 265 U.S. 388

Griggs v. Duke Power Company, 401 U.S. 424 (1971)

International Brotherhood of Teamsters v. United

States, 431 U.S. 224 (1977)

Kaplowitz v. University of Chicago (N. D. III. 1974)

387 F.Supp. 42

Kendig v. Dean (1878) 7 Otto (97 U.S.) 423

Leber v. Canal Zone Central Labor Union and Metal

Trades Council (5th Cir. 1967) 383 F.2d 110, cert.

den. 389 U.S. 1036

Louisiana v. United States, 380 U.S. 145 (1965)

NLRB v. Doug Neal Management Company (6th Cir.

1980) 620 F. 2d 1133

Provident Tradesmans Bank and Trust Company v v.

Patterson (1968) 390 U.S. 102

Regal Knit Wear Company v. National Labor Rela-

tions Board (1945) 324 U.S. 9, 13-14 (194557

Schutten v. Shell Oil Company (5th Cir. 1970) 421 F. ad

Shields v. Barrow (1855) 17 How. (58 U.S.) 130

Southbridge Plastics Division v. Local 759 (5th Cir.

1978) 565 F. 2d 913

Stevenson v. International Paper Company (5th Cir.

1975) 516 F.2d 103

Warner Valley Stock Company v. Smith (1897) 165

US. 28

15

14

is

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iv

Taste or AuTHortties Crrep

“Oe Statutes

Civil Rights Act of 1964 Title VII. 4, 9, 13, 14, 15, 16, 17, 19

23 U.S. C. Section 1254(i) 2

42 U.S.C. Section 2000(e)-5 4,17

| Rules

Federal Rules of Civil Procedure:

Rule 19 2,5, 11, 12, 15, 16

Rule 19(a) 10, 11

Rule 19(a) (1) 11

Rule 65(d) 17

Other Authorities

12 Wright & Miller, Federal Practice and Procedure,

appendix C, pages 401-405 (1972) 12

No.

In the Supreme Court

United States

Ocrosgr Team, 1981

Carpenters 46 NortHesn CaLironni1a CouNnTIES

Joixr APPRENTICESHIP AND Trarntnc CoMMITTEE

anp Trarnine Boarp,

Petitioner,

vs.

Ina Exvpreper and Ceristivs A. Mazovr, individually

and on behalf of all others similarly situated,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner Carpenters 46 Northern California Counties

Joint Apprenticeship and Training Committee and Train-

ing Board respectfully prays that a Writ of Certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Ninth Circuit entered in

this proceeding on November 4, 1981. ;

2

OPINION BELOW

The opinion of the Court of Appeals, not yet reported,

appears in the Appendix hereto. The opinions of the Dis-

trict Court for the Northern District of California are re-

ported at 83 F.R.D. 136 (N. D. Cal. 1979) and 440 F.Supp.

506 (N.D.Cal. 1977) and also appear in the Appendix.

JURISDICTION

Judgment of the Court of Appeals for the Ninth Circuit

was entered on November 4, 1981. A timely petition for

rehearing and suggestion of rehearing en banc was denied

on February 8, 1982, and this petition for certiorari was

filed within ninety days of that date. The court’s jurisdic-

tion is invoked under 28 U.S.C. Section 1254(1).

PROVISIONS OF LAW INVOLVED

Rule 19, Federal Rules of Civil Procedure. Joinder of

Persons Needed for Just Adjudication

(a) Persons to be Joined if Feasible. A person who is

subject to service of process and whose joinder will

not deprive the court of jurisdiction over the subject

matter of the action shall be joined as a party in the

action if (1) in his absence complete relief cannot be

accorded among those already parties, or (2) he claims

an interest relating to the subject of the action and is

so situated that the disposition of the action in his

absence may (i) as a practical matter impair or im-

pede his ability to protect that interest or (ii) leave

any of the persons parties subject to a sub-

stantial risk of i double, multiple, or other-

wise inconsistent obligations by reason of his claimed

interest. If he has not been so joined, the court shall

order that he be made a party. If he should join as a

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plaintiff but refuses to do so, he may be made a de-

fendant, or, in a proper case, an involuntary plaintiff.

If the joined party objects to venue and his joinder

would render the venue of the action improper, he

shall be dismissed from the action.

(b) Determivation by Court Whenever Joinder Not

Feasible. If a person as described in subdivision

(a)(1)-(2) hereof cannot be made a party, the court

shall determine whether in equity and good conscience

the action should proceed among the parties before it,

or should be dismissed, the absent person being thus

regarded as indispensable. The factors to be consid-

ered by the court include: first, to what extent a judg-

ment rendered in the person’s absence might be preju-

dicial to him or those already parties; second, the

extent to which, by protective provisions in the judg-

ment, by the shaping of relief, or other measures, the

prejudice can be lessened or avoided; third, whether

a judgment rendered in the person’s absence will be

adequate; fourth, whether the plaintiff will have an

adequate remedy if the action is dismissed for non-

joinder.

|

STATEMENT OF THE CASE

Two women applicants for apprenticeship in the car-

penters trade, Linda Eldredge and Christine Mazur,

coniplained that the Carpenters 46 Northern California

Counties Joint Apprenticeship Training Committee and

Training Board, or JATC, encouraged sex discrimination

by allowing applicants for apprenticeship to solicit em-

ployment through direct contact with building contractors.

4

The JATC, defendant in this proceeding and petitioner

here, had established a program accepting for classroom

instruction any person who met minimal criteria and who

could find a participating contractor to provide employ-

ment and the corresponding on-the-job training. Eldredge

and Mazur complained that this program had a disparate

impact because women had greater difficulty than men in

obtaining employment in this fashion, and they invoked

Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section

2000e-5 et seq., to secure a system of referral which mini-

mized employer selectivity in hiring. In May 1976, 13 of

3,209 carpenter apprentices in Northern California were

women.

There was no issue of systemic discrimination in the

process by which applicants were indentured by the JATC

or claim that the JATC applied neutral criteria in a dis-

criminatory fashion. Instead, Eldredge and Mazur claimed

that the JATC had a duty under Title VII to prevent or at

least minimize the opportunity for discrimination by em-

ployers who hired apprentices.

The JATC contended it had no role in hiring or dispatch

of apprentices and provided training to any person who

met the minimal qualifications and was employed by a con-

tractor signed to the carpenter’s agreement. The authority

granted in its trust agreement was limited by and subject

to collective bargaining agreements which preserved for

employers the right to select their employees. The JATC

asserted that it had no power to require employers to hire

or keep apprentices and that any order of the court di-

rected against the JATC alone would not improve em-

hae

Pe

8

5

ployment opportunities for women apprentices. It claimed

that the individual signatory employers, as the alleged

source of discrimination, were indispensable parties under

Rule 19, Federal Rules of Civil Procedure, because, as a

practical matter, they could prevent realization of the

intended relief.

The JATC is a joint labor-management committee estab-

lished in 1963 under a trust agreement by various local

unions of the United Brotherhood of Carpenters and Join-

ers of America and eleven contractor associations repre-

senting employers of carpenters in Northern California.

The trust agreement empowered the JATC, acting as a

board of trustees, to establish a program for educating and

training journeymen or apprentices to supply a pool of

skilled journeymen. The trust agreement provided, in

Article VIII, Section 1, that in all matters pertaining to

the authority of the JATC the terms of the controlling col-

lective bargaining agreements prevailed:

Section 1. Subject to the provisions of the Collec-

tive Bargaining Agreements, the rights and duties of

all parties, including the Employers, the Signatory

Associations, the Individual Employers, the Unions,

the Local Unions, the District Councils, the Employ-

ees and Trustees, shall be governed by the provisions

of this Trust Agreement and contracts procured or

executed pursuant to this Trust Agreement. (CR 36,

Exhibit 10, Apprenticeship and Training Trust Fund,

page 18).

Employment of union carpenters in Northern California

was covered by two master agreements with different em-

“CR” refers to the clerk's record below by docket number.

ployer associations, whose terms were identical for pur-

poses of this action. (CR 36, Exhibits 11 and 12). Individ-

ual employers who were not builder members of one of

those associations, known as “independents,” signed Mem-

orandum Agreements” by which they promised to comply

with the master agreement and to be bound by the cor-

responding trust agreements. Independents were respon-

sible for approximately one-half of all hours reported for

union carpenters in Northern California. Altogether, ap-

proximately 4800 employers were active under one or more

of these agreements.

Under the collective bargaining agreements, an employer

had complete freedom of selectivity in hiring and was per-

mitted to reject any job applicant referred by the union

for any reason, or to terminate any employee for cause

which he deemed sufficient, providing that he did not un-

‘lawfully discriminate against an employee for reasons of

union activity or on the grounds of age, sex, race, color or

national origin. (CR 36, Exhibits 11 and 12, Section 49).

Hiring hall provisious of the agreement required an em-

ployer who needed carpenters to place a request with the

local union or district council which operated a hiring hall

in the particular geographical area. An employer could re-

quest by name workers who had been employed by him

within the jurisdiction of a local union or district council

within three years previously, and those would be given

preference. He was also entitled to designate up to 25

percent of his employees notwithstanding hiring ‘all pro-

2

7

7

In August 1974, the JATC, with the approval of the

Division of Apprenticeship Standards, Department of In-

dustrial Relations for the State of California, implemented

a uniform affirmative action plan, Annex C-1, to cover each

of 43 local committees organized under 10 district offices.

To qualify under Annex C-1, an applicant was required to

meet certain minimum qualifications not challenged in this

case. Additionally, he had to obtain a position on a new

applicant referral list” established by the local committee

in the area in which he wished to work, and to obtain em-

ployment with a signatory contractor. (CR 36, Exhibit 6).

He obtained a position on the new applicant referral list

by appearing in a district office at a date and time speci-

fied in notices circulated to numerous public agencies, news

media and outreach programs. If the applicant met the

minimum requirements, he was placed on the new appli-

cant referral list in the order in which his application was

received, until the number of persons on the list reached

150 percent of the number of openings for new apprentices

which the local committee expected in the succeeding year.

When the list was filled, the district coordinator reviewed

it to determine whether it complied with goals and time-

tables for minority hiring established under Annex C1,

then posted the list and provided copies to each union

dispatcher and various outreach programs.

Once on the referral list, an applicant could obtain em-

ployment either by contacting employers directly, known

as the “hunting license,” or by referral off of the new

applicant referral list. Under the first procedure, an appli-

cant could ask an employer to place a request by name

with the local committee. The applicant was then inden-

ese

tured and sent to the local union for dispatch to the

employer as a registered apprentice. The vast majority

of all new carpenter apprentices located work in this

manner.

The second method came into play in rare cases when

an employer telephoned the union dispatcher and requested

an apprentice but did not specify a particular individual.

If there were no indentured apprentices on the union’s

hiring list at the time, or if the employer expressly re-

quested a beginning apprentice, the dispatcher asked the

local committee to provide him with the name of the

top person on the new applicant referral list and that per-

son, if available, was indentured and sent to the union for

dispatch. The employer had the right under the collective

bargaining agreement to refuse to accept the person dis-

patched, and his only obligation to the rejected apprer-

tice as to pay for two hours’ “show-up time.” (CR 36,

Exhibits 11 and 12, Section 49).

In either event, once a new apprentice was indentured,

the apprenticeship committee was no longer involved in

the hiring process and the apprentice reported to the union

hiring hall for all future job dispatches. The JATC co-

ordinated a program of classroom instruction to supple-

ment on-the-job training given by the employers.

Closing the new applicant referral list at 150 percent

of anticipated referrals excluded many people from avail-

ability for selection as apprentices and employers objected

to limitations on the pool of applicants. Beginning in the

fall of 1976, some of the local committees who had met

Prey

- a il

their goals for minority participation obtained approval

of the Division of Apprenticeship Standards for an

“amended Annex C-1,” which was different from Annex

C-1 only in that it created an open-end new applicant

referral list. Under amended Annex C-1, it was not nec-

essary to register with the local committee before looking

for employment, neaning that any applicant finding em-

ployment could be indentured. Amended Annex C-1 has

since been approved for a majority of local committees.

Linda Eldredge and Clristine Mazur registered as appli-

cants for apprenticeship on August 18, 1975, when the

closed list procedure of Annex C-1 was still in effect.

Linda Eldredge registered with the local committee in

San Francisco and Christine Mazur registered in Martinez.

Both obtained positions near the top of the new applicant

referral list in their respective areas. After orientation

meetings where applicants were told about the two alter-

natives for obtaining employment, both waited to be

called from the top of the new applicant referral list.

Neither contacted employers directly for almost one year

afterward.

Within two weeks after registering with their local com-

mittees, Eldredge and Mazur filed charges of discrimina-

tion with the Equal Employment Opportunity Commission.

On September 30, 1975, the day of the orientation program

of the San Francisco committee, Eldredge and Mazur sued

under Title VII to enjoin the use of the “hunting license”

and for an order requiring referral on a first-come, first-

served basis, for an affirmative action plan including goals

and timetables for the advancement of women from ap-

prentice to journey status, and for back pay.

10

On November 3, 1977, the District Court ordered respon-

dents to join as edditional parties within 60 days the em-

ployer contributors to the apprenticeship trust fund and

local urions who dispatched registered apprentices. The

District Court held that participating employers were par-

ties in whose absence the action could not proceed under

Rule 19(a), Federal Rules of Civil Procedure, because the

employers, as the apparent source of discrimination, were

situated as a practical matter where they could impair the

effectiveness of relief; and because employers had a sub-

stantial interest in their freedom to select apprentices

which could not be impaired without joining them as par-

ties. See pp. 40-87 of Appendix E. The court also held that

the local unions who dispatched apprentices registered with

the apprenticeship committee had an interest in the main-

tenance of an effective apprenticeship training program

and were in a position to impose domands upon the JATC

which might conflict with any remedy awarded by the

court. The court concluded therefore that the local unions

were also indispensable parties.

After extensions totaling approximately one year, El-

dredge and Mazur filed a motion to amend their complaint

in which they named as additional defendants one of the

principal contractor associations, the Northern California

Home Builders Conference, and the United Brotherhood

of Carpenters and Joiners of America. The District Court

held that joinder of the association was not a satisfactory

substitute for jvinder of the individual employers, since a

majority of the employers were independents or members

of other associations, and because no member had con-

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11

sented to have the association appear on its behalf in the

action. See pp. 9-12 of Appendix D. The District Court

dismissed the action for failure to comply with the order

of November 3, 1977. Appendix C.

The District Court’s judgment was reversed by the

Ninth Circuit, which said that the “complete relief” with

which Rule 19(a)(1) is concerned is only “relief as be-

tween persons already parties, not as between a party and

the absent person whose joinder is sought.” Appendix A,

p. 8. The Court of Appeals stated that absent employers

were not made necessary parties, and consequently could

not be indispensable parties, merely because “employers

could defeat any order against JA.TC by refusing to hire

any apprentices, by hiring only unregistered, non-union

apprentices, or by rejecting al! female apprentices dis-

patched to them.” Appendix A, p. 9.

REASON FOR GRANTING THE WRIT

A. The decision below conflicts with decisions of this

court and several circuit courts of appeals requiring

joinder, pursuant to Rule 19, of absent parties who

can, a8 a practical matter, frustrate intended relief

Rule 19(a), Federal Rules of Civil Procedure, requires

joinder of a party if “in his absence complete relief cannot

be accorded among those already parties.” The District

Court below interpreted this to mean that joinder was

necessary if, for reasons of due process, the court could

not, without joining additional parties, bring about a rem-

ray fulfiling the purpose of the statute under which plain-

ance

12

tiffs inveked the court’s authority. If women were denied

apprentice training because employers refused to hire them,

Title VII's goul of removing barriers to employment could

be met only by joining those employers as defendants.

Reversing, the Ninth Circuit concluded that all Rule 19

required was that the relief requested—modification of the

referral procedure for new applicants—was within the

power of the existing defendant. Appendix A, pp. 9-10.

Rule 19 did not, according to the Ninth Circuit, require a

comprehensive remedy for sex discrimination.

The Advisory Committee notes to the 1966 amendment

say with regard to Rule 19(a) :

“Clause (1) stresses the desirability of joining those

persons in whose absence the court would be obliged

to grant partial or ‘hollow’ rather than complete relief

to the parties before the court. The interests that are

being furthered here are not only those of the parties,

but also that of the public in avoiding repeated law

suits on the same essential subject matter.” See 12

Wright & Miller, Federal Practice and Procedure,

appendix C, pages 401-405 (1972).

The Supreme Court has said, [A] court can make no de-

cree affecting the rights of an absent person, and can make

no decree between the parties before it, which so far de-

pends upon the rights of an absent person, that complete

and ‘inal justice cannot be done between the parties to this

svi. withont affecting those rights.” Shields v. Barrow

(4855) 17 How, (58 U.S.) 130.

The District Court below recognized that, regardless of

any restrictions that might be placed by the Court or the

apprenticeship committee on the order or means by which

13

applicants were referred to the union for dispatch to sig-

natory employers, the ultimate decision to give or deny

employment was one which rested exclusively with the in-

dividual employer under his collective bargaining agree-

ment. Appendix E, pp. 47, 51-52. If the goal of Title VII

was to assure that women had the same access to appren-

tice training as men, then the employers who provided

training on the job had to be joined as defendants. The

District Court said in its amended memorandum dated No-

vember 8, 1977, “The plain fact is that the opportunity to

gradually integrate the trade exists now to the same extent

and subject to the same obstacles as it would under any

decree that could be fashioned against the JATC alone.

There is. no evidence that the change in referral system

sought here would have any effect on the apparent source

of the discrimination alleged—the absent employers.” Ap-

pendix E, p. 54. The District Court had earlier said, Al-

though the legal position of the present defendant and its

theoretical ability to comply with an order are relevant,

they may be outweighed by a finding that parties may as a

practical matter prevent the full realization of the in-

tended relief. The Court must guard against the formula-

tion of ‘“‘paper” decrees which neither adjudicate nor, in

the end, protect rights.“ Appendix E, pp. 45-46, quoting

in part from Schutten v. Shell Oil Company (5th Cir. 1970)

421 F.2d 869, 874.

The Ninth Circuit’s opinion here turned upon the view

that the practical ability of absent employers to undermine

relief ordered against the apprenticeship committee was

not relevant as long as the committee itself could be made

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14

to comply with the court’s order. By reasoning that the

employers could defeat the remedial affect of any order

against the apprenticeship committee by refusing to hire

women apprentices dispatched to them, said the Ninth

Cireuit, “the District Court misapprehended the legal in-

quiry required by Rule 19(a)(1).” Appendix A, p. 9.

Instead, the Ninth Circuit said, “JATC may not avoid its

own liability for practices illegal under Title VII by relying

on the employers’ possible future conduct that might frus-

trate the remedial purposes of any court-ordered changes

in the apprenticeship program.” Appendix A, pp. 9-10.

This court, as well as several circuit courts of appeal,

has stated that the public has an interest in allocating

the finite resources of the judicial system for the “com-

plete, consistent and effective settlement of controver-

sies. Provident Tradesmans Bank and Trust Company v.

Patterson (1968) 390 U.S. 102, 111. It has required that

absent parties be joined or the action dismissed when the

essential purpose of the relief sought could not be effectu-

ated without the performance of some act by an absent

party. See, for instance, Kendig v. Dean (1878) 7 Otto (97

US.) 423; Warner Valley Stock Company v. Smith (1897)

165 U.S. 28; Gnerich v. Rutter (1924) 265 U.S. 388. To pro-

ceed otherwise is to risk that the “court would find itself

in the position of having made a decree it could not

enforce, of attempting to give relief which was beyond

its power, because the party whose action was necessary to

that relief was not a party of the suit.” Kendig v. Dean,

supra, 7 Otto (97 U.S.) at 425.

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15

According to the Fifth Cireuit, whether a party must be

joined depends upon the purpose of the litigation, not upon

whether there is a prayer or request for any affirmative |

action on the part of the absent party. Leber v. Canal Zone

Central Lahor Union and Metal Trades Council (5th Cir.

1967} 383 F.2d 110, 115, cert. den. 389 U.S. 1036. A party

cannot avoid the requirements of Rule 19 by requesting only

limited relief, which can be performed by existing parties

but does not serve the purpose of the statute.

This court has said, with regard to discrimination pro-

hibited by Title VIi, “What is required by Congress is the

removal of artificial, arbitrary, and unnecessary barriers

to employment when the barriers operate invidiously to

discriminate on the basis of racial or other impermissible

- classification.” Griggs v. Duke Power Company, 401 U.S.

424, 431 (1971). To remedy discrimination, “The court has

not merely the power but the duty to render a decree which

will so far as possible eliminate discriminatory effects of

the past as well as bar like discrimination in the future.”

Louisiana v. United Siates, 380 U.S. 145, 154 (1965). By

contrast, the court has no power to modify terms of em-

ployment if the change will not have the effect of remedying

unlawful discrimination. Southbridge Plastics Division v.

Local 759 (5th Cir. 1978) 565 F.2d 913, 916; Stevenson v.

International Paper Company (5th Cir. 1975) 516 F.2d 103,

118.

Responding to the purposes of Title VII and Rule 19,

the Court of Appeals for the District of Columbia has re-

fused to issue “rather ineffective symptomatic relief,

leaving the root (sexually segregated locals) to continue,”

in a suit charging sex segregation in two local unions,

ee “a

9

16

where the plaintiffs had not joined the parent interna-

tional union as defendant, and where only the international

union could merge, suspend or terminate operation of the

two locai unions. Evans v. Sheraton Park Hotel (D.C.Cir.

1974) 503 F.2d 177. Similarly, the Eighth Circuit, in Gil-

more v. Kansas City Terminal Railway Company (8th Cir.

1975) 509 F. 2d 48, ordered absent unions joined in a Title

VII action against an employer because the evidence sug-

gested that they were “at least partially responsible for the

absence of minority persons within the requisite training

for at least the lower-level supervisory positions.” Id. at

52-53. See also Cedillo v. International Association of

Bridge and Structural Iron Workers, Local Union No. 1

(7th Cir. 1979) 603 F.2d 7. The ruling of the Ninth Circuit

here is inconsistent with each of these decisions.

The Sixth Circuit, in NLRB v. Doug Neal Management

Company (6th Cir. 1980) 620 F.2d 1133, has expressly

followed and quoted from the reasoning of the District

Court in this case, while denying reinstatement for em-

ployees whose work under a maintenance contract ceased

to exist after an absevt third party automated its oper-

ations. By following the District Court here, the Sixth

Circuit has taken a position in direct conflict with the Ninth

Circuit and affirmed that Rule 19 is concerned with the

practical ability of an absent party to frustrate relief.

The Ninth Cireuit here conceded that, “Without the

joinder of the employers, any court order that may be

entered to enjoin JATC to institute programs cannot go

beyond the authority JATC has under the trust fund

17

agreement.” Appendix A, p. 12. The Ninth Circuit did not

questicn the District Court’s holding that absent em-

ployers were not parties sufficiently identified an interest

with the apprenticeship committee to be bound by a decree

as non-party participants under Rule 65(d), Federal Rules

of Civil Procedure, citing Regal Knit Wear Company v.

National Labor Relations Board (1945) 324 U.S. 9, 18-14

(1945). It left the District Court without the means to

compel an end to the alleged discrimination in apprentice

hiring, because a first-come, first-served system of referral

and dispatch is no barrier as long as employers have the

right under the contract to refuse dispatches.

The Ninth Circuit’s decision raises the additional ques-

tion of whether plaintiffs can state a claim against the

apprenticeship committee for which relief can be granted

under Title VII, when the apprenticeship committee is the

only defendant. The District Court for the Northern Dis-

triet of Illinois has ruled that a law school which makes

its placement facilities available to employers is not com-

pelled to investigate their hiring practices or bar those

who discriminate from using its placement facilities.

Kaplowitz v. University of Chicago (N.D.Ill. 1974) 387

F.Supp. 42, 48-49. That decision suggests that the appren-

ticeship committee has no legal responsibility to police the

hiring practices of participating employers. The Northern

District of Illinois said that a contrary ruling would sub-

stitute whatever investigative and hearing process the

school might select for investigation upon a charge filed

with the Equal Employment Opportunity Commission

under 42 U.S.C. Section 2000(e)-5 and cireumvent the juris-

dictional requirements under Title VII, imposing an enor-

"a7

a)

18

mous administrative burden upon conventional employment

agencies and the like which was not clearly mandated by

the statutory language.

The Ninth Circuit’s decision also raises a question of

fairness and due process by allowing plaintiffs to make the

apprenticeship committee a surrogate defendant to answer

for the hiring policies of the 4800 employers of construc-

tion carpenters ia Northern California. If plaintiffs can

make out a prima facie case on statistics alone, the JATC

may be put to the burden of establishing legitimate reasons

why plaintiffs were not employed, based upon facts which

are within the exclusive control of plaintiffs and the re-

spective employers. See International Brotherhood of

Teamsters v. United States, 431 U.S. 324, 339 (1977). There

may be many facts in individual cases which woulc justify

low representation among omen in the apprenticeship

program in various areas, of which some examples are:

The employer had no women applicants under the “hunting

license” system; the employer had no work for beginning

apprentices; the employer had fewer than five journey-

men and was not required to hire apprentices; the

employer’s business was located in one of several geo-

graphical areas where there were no women applicants;

because of heavy lifting or height requirements of the job,

qualified women were not available; or the employer did

hire women apprentices without discrimination as openings

and applicants were availeble. Standards for selection of

employees used by 480C contractors working in various

subdivisions in the carpentry trade covered by the ap-

prenticeship program, from two or three carpenter roofing

businesses to residential developers hiring hundreds of

43

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19

framing contractors, would inevitably be so complex and

diverse, according to difficulty and nature of work and

available labor pools, that we cannot conceive that the

JATC would have the resources to assemble the evidence.

The Ninth Circuit’s decision also leaves open the pos-

sibility that women applicants who are not hired by em-

ployers to whom they are referred and dispatched will be

required to file separate lawsuits under Title*VII, and the

courts will be required to retry many of the same issues on

an individualized basis, because parties not joined in this

proceeding will not be estopped by any judgment rendered

here. The expenditure of judicial resources in pursuing

this action without joining the employers cannot be justi-

fied by the benefits to be obtained under Title VII.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Ninth Circuit.

Dated: April 26, 1982.

Respectfully submitted, e

Moors, S1zoo & Cx TWRLI.

Srepoen McKag

COUNSEL OF RECORD

Westey S100

On Behalf of The Petitioner

Above Named

(Appendices follow)