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

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Case No. 79-4482

LINDA ELDREDGE and CHRISTINE A. MAZUR,

individually and on behalf of all

others similarly situated,

Plaintiffs-Appellants,

Vv.

CARPENTERS 46 NORTHERN CALIFORNIA

COUNTIES JOINT APPRENTICESHIP AND

TRAINING COMMITTEE,

De fendant-Appellee.

OPINION

Appeal from the United States District

for the Northern District of

California

Charles B. Kenfrew, District Judye,

Presiding.

Argued and Submitted: March 11, 1981

plications

ae hs ,

OPINION

Before FLETCHER and NELSON, Circuit

Judges, and KEEP*, District Judge.

FLETCHER, Circuit Judge:

This is an appeal from the district

court's order dismissing the action for

failure to join indispensable parties.

Fed. R. Civ. P. Fp, s The opinions are

reported at 20 Fair Empl. Prac. Cas. 897

(N.D. Cal. 1979) and 440 F. Supp. 506

(N.D. Cal. i977). We reverse and remand.

FACTS

The facts underlying this suit are

recounted in great detail in the district

court opinion, 440 F. Supp. at 510-14, aM

and need only be summarized here. Plain-

tiffs Eldredge and Mazur hrought suit

* The Fonorable Judith N. | in

States District Judge for ae. ae

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A-2

under Title VII, 42 U.S.C. § 2000e-2,

against the Carpenters 46 Northern

California Counties Joint Apprenticeship

and Training Committee (JATC), alleging

sex discrimination in the operation of

JATC's apprenticeship program. Plaintiffs

brought the suit as a class action, but

the district court has not yet considered

the question of class certification.

Defendant JATC is a joint labor-

management committee established under

an agreement that provides for a trust

fund contributed to by the parties to the

master collective bargaining agreements

in the Northern California construction

industry. JATC is composed of equal

numbers of labor and management represent- .

atives, and acts as a board of trustees

for the administration of the Carpenters

Apprenticeship and Training Trust Fund

for Northern California. It is responsi-

ble for establishing, supporting, and

aati ea

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A-3

maintaining programs to educate and train

journeymen and apprentices in all classi-

fications covered by any collective bar-

gaining agreement that requires employer

contributions to the trust fund. 440

F. Supp. at 510-11.

Plaintiffs al’? ye that the process

by which JATC selects applicants to its

apprenticeship training program discrim-

inates against women. Al‘hough JATC has

employed other selection procedures in

the past, see id. at 511-12, it presently

relies on what is known as the “unre-

stricted hunting license" system. Under

this system, an individual must first

convince an employer to hire him or her

as a beginning apprentice. JATC then

places the individual's name on its

applicant register. Id. at 512. The

applicant enters into an apprenticeship

agreement with JATC and is dispatched

through the union hiring hall. Id. An

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individual needs no prior trating to be-

come an apprentice; all that is required

is that he or she be 17 years of age and

have a high school diploma or its equiva-

lent. Id. at 5ll.

The master collective bargaining

agreements under which JATC operates re-

quire employers to hire one apprentice

for every five journeymen employed. The

apprenticeship is a four-year program.

Employers are under no obligation to hire

beginning as opposed to experienced ap-

prentices. Id. at 519. In May of 1976,

only thirteen of JATC's 3220 registered

apprentices were women. Id. at 514.

The essence of plaintiffs‘ complaint

is that, by relying on the unrestricted

hunting license system to recruit ap-

prentices, JATC has adopted an entrance

requirement for its program which is

known to have a discriminatory effect on

women. Plaintiffs argue that JATC knows

A-5

that individual employers do not hire

women under the unrestricted hunting

license system, and that JATC's use of

this system is therefore illegal under

Title VII. The district court assumed

for the purposes of its rule 19 analysis

that plaintiffs had stated a claim on

which relief could be granted. 440 F.

Supp. at 518 (citing Crockett v. Green,

388 F. Supp. 912 (E.D. Wis. 1975),

aff'd, 534 F.2d 715 (7th Cir. 1976).

The district court held that the

4500 employers and 60 union locals

covered by the master labor agreement,

or adequate representatives of their

interests, were indispensable to the

litigation under the standards imposed

by rule 19 (by. It ordered them joined

within 60 days. 440 F. Supp. at 527.

Plaintiffs were granted extensions of

time in which to explore the possibili-

ties for joinder, see 20 Fair Empl. Cas.

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A-6

at 898-99, but joinder of all 4500

employers proved impossible. The

plaintiffs then sought to join the

Northern California Homebuilders'

Conference (NCHBC) to represent the

absent employers' dike esis The court

held this inadequate and dismissed the

case. Id. at 900.” We conclude that

the employers are not necessary parties

under rule 19(a) and thus cannot be

indispensable parties under rule 19(b).

We reverse.

ANALYSIS

Rule 19 requires two separate

inguiries. First, are there persons who

should be joined, either because their

own interests or the interests of the

parties might be harmed by their absence?

Such persons, referred to as "necessary

parties," must be joined if feasible.

Fed. R. Civ. P. 19(a). Second, if parties

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A-7

determined to be necessary under rule 19

(a) cannot be joined, should the action

in “equity and good conscience" be dis-

missed? Only if the court determines

that the action should be dismissed is

the absent party labelled "indispensable."

Fed. R. Civ. P. 19(b); see English v.

Seaboard Coast Line Railroad, 465 F.2d 43,

48 (5th Cir. 1972).

The nature of the rule 19 inquiry is

described at some length in Provident

Tradesmens Bank & Trust Co. v. Patterson,

390 U.S. 102 (1968). The inquiry should

focus on the practical effects of joinder

and nonjoinder. Id. at 116 n.12;

Schutten v. Shell Oil Co., 421 F.2d 869,

874 (5th Cir. 1970). Rule 19 was revised

in 1966 to emphasize its practical focus

and to avoid the inflexible approach

taken by many courts under the prior ver-

sion of the rule. Id. at 871-74; see

Provident Tradesmens Bank & Trust Co. v.

A-8

Patterson, 390 U.S. at 106-07.

Rule 19(a) describes two categories

of persons who should be joined if feas-

ible. If the absent employers fall into

either of these two categories, they are

"necessary parties."

The first category comprises those

persons in whose absence "complete relief

cannot be accorded among those already

parties.” Fed. R. Civ. P. 19{a)(1). This

portion of the rule is concerned only with

“relief as between the persons already

parties, not as between a party and the

absent person whose joinder is sought.”

3A Moore's Federal Practice ¥ 19.07-1[1],

at 19-128(2d ed. 1980); accord, Morgan

Guaranty Trust Co. v. Martin, 466 F.2d

593, 598 (7th Cir. 1972). The district

court concluded that the absent employers

could frustrate any relief granted

against JATC, and that complete relief

would therefore not be possible unless

A-9

the employers were made parties. The

court reasoned that the employers could

defeat any order against JATC by refus-

ing to hire any apprentices, by hiring

only unregistered, nonunion apprentices,

or by rejecting all female apprentices

dispatched to them. 440 F. Supp. at

519-20. We believe that the district

court misapprehended the legal inquiry

required by rule 19(a) (1).

If JATC's activities violate Title

VII, a question not yet decided, then the

court has both the power and the duty to

enjoin those activities. The possibility

that such an injunction may induce employ-

ers to avoid JATC's services, or ultimate-

ly to disband the training and referral

system altogether, should not defeat the

present action against JATC. JATC may

not avoid its own liability for practices

illegal under Title VII by relying on the

employers' possible future conduct that

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A-10

might frustrate the remedial purposes of

any court-ordered changes in the appren-

ticeship program. See, e.g., United

States v. Sheet Metal Workers Local 36,

416 F.2d 123, 132 & n.16 (8th Cir. 1969)

(enjoining union from continuing discrimi-

natory referral practices, even though

those practices were required by collec-

tive bargaining agreement with absent

employers).

The district court appears to assume

that the employers would discriminate

against women because of their sex, and

that they would refuse to hire women

training in the apprentice program.

There is no evidence to this effect in

the record. On the contrary, the employ-

ers have previously participated, appar-

ently successfully. in a state-mandated

affirmative action program designed to

increase the number of minority appren-

tices. See 440 F. Supp. at 511-12.

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While it might be desirable to join

all 4500 employers in-order to eradicate

sex discrimination in the industry, we

conclude that relief on plaintiffs’

claims against JATC as an entity could be

afforded by an injunction against JATC

alone. Both sides agree that JATC has

the power under the trust fund agreement

to structure its apprenticeship program

in any way it sees fit. 440 F. Supp. at

510-11. It is quite possible that a

court-ordered restructuring of the pro-

gram could effectively increase the par-

ticipation of women in the apprentice-

ship program. See, e.g., EEOC v. Local

638, Sheet Metal Workers’ Union, 565 F.2d

31, 34-35 (2d Cir. 1977).

The second inquiry required by rule

19(a) concerns prejudice, either to the

absent persons or to those already parties.

Rule 19(a) (2) (i) provides that a person

should be joined if he claims an interest

A-12

relating to the subject of the action,

and the disposition of the action may “as

a practical matter impair or impede his

ability to protect that interest."

| The district court held that Ling”

employers should be joined since they

have a right to select their own employ-

ees, a substantial interest that they

have a right to speci We disagree.

The trust fund agreement grants full

authority to JATC to structure the ap-

prenticeship program and to select the

apprentices. We conclude that the employ-

ers have ’-» contract ceded to JATC what-

ever legally protectible interest they

may have had in selecting apprentices to

be trained. On the other hand, without

the joinder of the employers, any court

order that may be entered to enjoin JATC

to institute programs cannot go beyond

the authority granted JATC under the trust

fund agreement. The absent employers are

a Se

A-13

thus assured that an injunction against

JATC will not trench on any rights re-

served to the employers under the agree-

ment. We must conclude that the employ-

ers‘ ability to protect whatever inter-

est in employee selection they retain

will not be “impaired or impeded" if

they are not made parties. They are

therefore not necessary parties under

rule 19(a) (2) (i).

The district court was understandably

concerned that the absent employers might

have interests that would be unrepresent-

ed in the present suit. Although we have

concluded that their interests are not

the sort that would make the employers

y necessary under rule 19, on remand it is

possible that some employers, or the

: NCHBC, may move to intervene. The dis-

i trict court may then consider whether to

4 permit intervention under Fed. R. Civ. s

4 P. au. See e.g., United States v.

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den: , 425 0.8. 944 , 976).

a ee "We hold that the trial court erred

"in dismissing the case for nonjoinder of

“necessary parties. (We REVERSE and REMAND

for further proceedings. |

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A-15

FOOTNOTES.

Rule 19 provides in pertinent

part:

(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 inter-

est relating to the subject of the

action and is so situated that the

dispositior: of the action in his

absence may (i) as a practical

matter impair or impede his ability

to protect that interest or (ii)

leave any of the persons already

perties subject to a subs<cantial

risk of incurring double, multiple,

or otherwise inconsistent obliga-

tions 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 plaintiff but refuses to

do so, he may be made a defendant,

or, in a proper case, an involun-

tary 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) Determination by Court

Whenever Joinder not Feasible. If

a person as described in subdivision

A-16

(a) (1)-(2) hereof cannot be made

a party, the court shall determine

whether in equity and good con-

science the action should proceed

among the parties before it, or

should be dismissed, the absent

person being thus regarded as in-

dispensable. The factors to be

considered by the court include:

first, to what extent a judgment

rendered in the person's absence

might be prejudicial to him or

those already parties; second,

the extent to which, by protec-

tive provisions in the judgment,

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 nonjoinder.

The trial court also decided two

issues not raised in this appeal. It

held that the plaintiffs had exhaust-

ed their administrative remedies,

440 F. Supp. at 515-18, and that the

absent parties could be joined even

though they were not named in the

charge to the EEOC, id. at 524-26.

The NCHBC is a large employers’

organization which negotiated the

A-17

master labor agreement under which

JATC operates. Not all of the

employers who subscribe to the

master agreement belong to the

NCHBC. 20 Fair Empl. Prac. Cas. at

899.

The plaintiffs also sought to

join the United Brotherhood of

Carpenters and Joiners of America,

the international, to represent the

union locals. The district court

did not decide whether the inter-

national could adequately repre-

sent the locals because it decided

that the action could not proceed

in any case. 20 Fair Empl. Prac.

Cas. at 899 n. 4.

The district court did not find

the employers necessary under rule

19(a)(2) (ii). See 440 F. Supp. at

522-24.

A-18

Fed. R. Civ. P. 24 provides:

(a) Intervention of Right.

Upon timely application anyone

shall be permitted to intervene in

an action: (1) when a statute of

the United States confers an uncon-

ditional right to intervene; or

(2) when the applicant claims an

interest relating to the property

or transaction which is the sub-

ject of the action and he is so

situated that the disposition of

the action may as a practical

matter impair or impede his abil-

ity to protect that interest,

unless the applicant's interest

is adequately represented by

existing parties.

(b) Permissive Interven-

tion. Upon timely application

anyone may be permitted to inter-

vene in an action: (1) when a

statute of the United States con-

fers a conditional right to inter-

vene; or (2) when an applivant's

Claim or defense and the main

action have a question of law or

fact in common. When a party to

an action relies for ground of

claim or defense upon any statute

or executive order administered

by a federal or state governmentai

officer ev #vency or upon any regu-

lation, orser, requirement, or

agreement issued or made pursuant

to the statute or executive order,

the officer or agency upon timely

application may be permitted to

intervene in the action. In exer-

cising its discretion the court

shall consider whether the

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APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Case No. 79-4482

\\LINDA ELDREDGE and CHRISTINE A. MAZUR,

‘individually and on behalf of all

others similarly situated,

Plaintiffs-Appellants,

Vv.

CARPENTERS 46 NORTHERN CALIFORNIA

COUNTIES JOINT APPRENTICESHIP AND

TRAINING COMMITTEE,

De fendant~-Appellees.

ORDER

Filed: February 8, 1982

ORDER

Before FLETCHER and NELSON, Circuit

Judges, and KEEP, District Judge.

This opinion filed November 4, 1981

is amended as follows:

On page 5755 of the slip opinion,

in the final paragraph, the first sen-

tence should be deleted and the

following sentence inserted in its stead:

The district court appears

to assume that the employers

would refuse to hire women

admitted tc the apprentice

program pursuant to any

judgment that may be

entered against JATC in

this suit.

The petition for rehearing is denied.

The full court has been advised of the

suggestion for en banc hearing, and no

judge of the court has requested a vote

Seal » ach

| ne

Te Re CRE KORE Sane.

e , Case Ro. C-75-2062-CBR

LINDA ELDREDGE, et al.,

Plaintiffs,

e4 : vs.

CARPENTERS 46 NORTHERN CALIFORNIA

COUNTIES JOINT APPRENTICESHIP AND

TRAINING |

« Filed: July 9, 1979

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This Court having ordered plain-

tiffs to join as parties defendant

certain employers and unions that the

Court determined to be indispensable

parties under Rule 19, and plaintiffs

having failed to satisfactorily comply

with the Court's order, and the Court

having filed a Memorandum of Opinion

on July 9, 1979,

IT IS HEREBY ADJUDGED that the ac-

tion is dismissed without prejudice

pursuant to Rule 41(b).

IT IS HEREBY FURTHER ADJUDGED that

the parties shall bear their own costs.

Dated: July 9, 1979.

/s/ Charles B. Renfrew

Charles B. Renfrew

United States District Judge

ENTERED IN CIVIL DOCKET 7/11, 1979

Case No. C-75-2062-CBR

Fai. LINDA ELDREDGE, et al.,

Plaintiffs,

oy : vs.

CARPENTERS 46 NORTHERN CALIFORNIA

COUNTIES JOINT APPRENTICESHIP AND

TRAINING COMMITTEE,

oe jae Defendant.

MEMORANDUM OF OPINION

Filed July ¥, 1979

D-1

On September 30, 1975, plaintiffs

Linda Eldredge and Christine Mazur filed

this sex discrimination suit against de-

fendant Carpenters 46 Northern California

Counties Joint Apprenticeship and Train-

ing Committee ("JATC"), alleging that

defendant had violated Title VII of the

Civil Rights Act of 1964, 42 U.S.C.

§$2000e-2(d). Defendant JATC is a joint

labor-management committee that serves

as a board of trustees responsible for

the administration of the Carpenters

Apprenticeship and Training Trust Fund

for Northern California. The trust fund

was created by a 1963 agreement among

representatives of various local unions

of the United Brotherhood of Carpenters

and Joiners of America (AFL-CIO and

various associations of contractors who

employ carpenters in Northern California.

}

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D-2

Pursuant to its authority under the

trust fund agreement, defendant JATC has

established a four-year apprenticeship

program leading to journeyman status upon

the completion of a specified number of

hours of classroom training and on-the-

job experience. In order to gain admis-

sion into a JATC training program, one

must obtain placement on a new applicant

referral list maintained by a district

office of the JATC and one must be re-

ferred to a job as a beginning appren-

tice.

There are two methods of obtaining

such a job referral. One approach is to

await referral in numerical order off

the new applicant referral lists. If an

employer calls a union dispatcher and

seeks a beginning apprentice without re-

questing a particular individual, the

next apprentice on the JATC's referral

list will be referred. In their

D-3

original complaint, plaintiffs alleged

that the JATC had violated Title VII

through engaging in discriminatory prac-

tices in the placement of women on the

new applicant referral lists. Plaintiffs

claimed that they had been treated less

favorably than male applicants when seek-

ing placement on such lists.

Applicants rarely obtain jobs through

numerical referral, however, for employ-

ers very seldom call in for a beginning

apprentice without requesting a particu-

lar individual. The vast majority of

those admitted to the JATC training pro-

gram obtain a job referral through the

"hunting license” method, which enables

an individual to seek employment on his

own. After finding a contractor willing

to employ him as an apprentice for at

least 60 days, an individual may ohtain

a letter of subscription signed by that

employer, place his name on the new

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applicant referral list, and then be dis- a

patched to work for that employer.

After discovery in this suit revealed

the unlikelihood of receiving a numerical

referral off the new applicant referral

lists, both plaintiffs unsuccessfully

attempted to find employment through the

“hunting license” method. They then

amended their complaint to ailege that

defendant's maintenance of this alter-

native method of securing job referrals

violates Title VII. The amended complaint

alleges that employers’ discrimination

against women operates thorugh [sic] the

“hunting license” system to exclude women

from apprenticeships.

Following plaintiffs’ amendment of

their complaint, the Court concluded that

calitornia, ste. 110 F- Supp. 306 OLB.

i A more detailed explanation of the '

factual background of of [sic] this case Ry

is provided in the Court's earlier opin- ~

D-5

since the numerical referral method plays

such a minor role in the job referral

system, plaintiffs' efforts to obtain re-

lief that would increase women's chances

of gaining admission to defendant's ap-

prenticeship program should be directed

at the “hunting license” system rather

than the numerical referral method. In

fact, the remedy plaintiffs propose did

involve elimination of the “hunting

license" system:

"Plaintiffs have not specified

the precise system they seek to

have instituted, but it is plain

that they envision a system re-

guiring an employer who wishes

to hire a beginning apprentice

to contact the union local and

enter a request without naming

any individual, whereupon the

union would be required to dis-

patch an applicant selected by

the JATC by means of one of

anumber Sow of non-discrimi-

natory techniques. Eldred

v. Carpenters 46 Northern Cali-

fornia, etc. 440 F.Supp. 506,

514 (N.D.Cal. 1977). (footnote

omitted).

D-6

Thus, the relief contemplated would

substantially alter the present sys-

tem of hiring beginning apprentices.

In order to grant effective

relief and to enable the employers

to protect their interest in select-

ing their own employees, this Court

ordered that the affected employers

be joined as indispensable parties

under Rule 19.7

440 F.Supp. at 519-

527. In so doing, the Court recog-

nized the substantiality of the

employers’ interest in preserving

the present hiring system:

///

2 Although the Court was primar-

ily concerned with the need to join

the employers, the Court also con-

cluded, for reasons set forth in the

earlier opinion, that the local

unions that refer applicants regis-

tered with JATC to employment should

be considered indispensable parties.

Eldredge, supra, 440 F.Supp. at 524.

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D-7

"Even where there are no objec-

tive qualifications for a job,

the interest of an employer in

selecting those who, for any

non-discriminatory reason, he

believes to be more highly mo-

tivated or more compatible with

his existing work force, is not

an insubstantial one. * * * It

is no doubt true that the

*"unstandardized and subjective"'

judgments presently being made

""lend themselves to arbitrary

and discriminatory hiring'"

[citations omitted], and plain-

tiffs have suggested that such

results have occurred in this

case. Nevertheless, the em-

ployers are entitled to their

day in court to contest these

allegations before the Court

issues an order abolishing the

prerogatives they presently

enjoy." 440 F.Supp. at 522.

This Court concludes that the employ-

er contributors to the trust fund and the

socal unions that refer applicants re-

gistered with JATC to employment were in-

dispensable parties in whose absence the

action could not in equity and good con-

science proceed. On November 3, 1977,

the Court ordered that if such parties

were not joined within sixty days or

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D-8

within such further time as the Court

might, on good cause shown, allow, the

action would be dismissed, Eldredge,

supra, 440 F.Supp. at 527.

Plaintiffs’ Motion to Join Addi-

tional Parties Defendant.

Plaintiffs have engaged in extensive

discovery in order to determine which em-

ployers and unions should be joined and

whether certification of defendant clas-

ses or joinder of employers’ associations

and the international union might serve

as an alternative means of complying with

the Court's order. In order to afford

plaintiffs sufficient time to obtain and

analyze the voluminous data relating to

the affected employers and local unions,

the Court granted an extension of the

time limit originally set for effecting

soinder.

3 The Court first granted an exten-

sion of the time limit to April 2, 1978,

and later granted a further (continued)

' D-9

He. Plaintiffs have moved to amend their

complaint to join the Northern California

Homebuilders’ Conference ("NCHBC"), an

employers’ association, and the United

Brotherhood of Carpenters and Joiners of

America, the international union, as

additional parties defendant. Defendant

JATC seeks dismissal of the action argu-

: ing that joinder of these parties does

not comply with the Court's cde of

November 3, 1977. The most significant

objection raised by defendant is that

plaintiffs have failed to establish that

the NCHBC could adequately protect the

interests of all employers invotved in

the JATC apprenticeship program. Al-

though plaintiffs emphasize that NCHBC

negotiates the lead collective bargain-

ing agreement governing carpentry in

extension allowing plaintiffs through

eg January 1, 1979, to join additional

parties defendant.

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Northern California, this fact alone does

not establish that NCHBC could represent

the interests of the numerous employers

who would be affected by a court order

directing the JATC to institute a new job

referral system. Since many of the af-

fected employers are not even members of

the NCHBC, but are represented by other

contractors’ associations or are inde-

pendent contractors, joinder of NCHBC

does not fully satisfy the Court's con-

cerns regarding representation of the

employers’ interest in preserving the

present hiring system. Plaintiffs con-

sider NCHBC “the part most capable of

representing employer interests." Yet

even assuming that NCHBC is the single

party most capable of representing the

employer interests at stake here, which

plaintiffs have not shown, the Court is

not persuaded that joinder of this one

contractors’ association is a satisfactory

. a 5s ‘ x ~ » > . * fe 3 a

Mees . OE RUNES ELE ey PERNT REE TS. MPa aes

Red Cee Se Pee ee ee eee eet” a Oe OP, eee a Ae ee ee oe aR ipa

substitute for joinder of the individual

employers who would be affected by the

proposed decree. Furthermore, the de-

Cclaration submitted by Mr. Wesley Sizoo,

an attorney for NCHBC, in support of

JATC's opposition to plaintiffs' motion

to amend, states that no employer or mem-

ber organization of NCHBC has consented

to have NCHBC appear on its behalf in

this action. Plaintiffs have not con-

tradicted the statement that NCHBC is not

authorized to represent the employer in-

terests here, nor have they provided the

Court with a basis for concluding that

NCHBC could effectively represent those

interests.

The Court therefore finds that plain

tiffs have not adequately complied with

the Court's order of November 3, 1977,

insofar as it directed joinder of the em-

ployer contributors to the Carpenters

Apprenticeship and Training Trust Fund “a

hie i's ne aaa

D-12

for Northern California. *

Accordingly,

the action must be dismissed under Rule

41(b) for failure to comply with the

Court's order directing joinder of in-

dispensable parties.

Defendant's Motion for Attorneys’

Fees and Costs

Defendant JATC seeks an award of

costs and an award of attorneys' fees

for the period following the Court's

November 3, 1977 opinion. In support

of the motion for attorneys’ fees, de-

fendant relies primarily” on

4 Since the case must be dismissed

for failvre to join the affected em-

ployers, it is unnecessary to consider

whether plaintiffs’ proposed joinder of

the international union would serve as

an adequate substitute for joinder of

the affected local unions.

5 In addition, defendant apparently

contends that 28 U.S.C. §1927, which

permits the Court to require an attorney

personally to satisfy excess costs in-

curred because of the attorney's un-

— ‘and apts. (continued)

i& i Me

ie _ ea ele ute AS ATL es ie ae

Biss. r

es ur i Ae ; ‘ we es mT Faye

D-13

Christianburg Garment Co. v. E.E.0O.C.,

attorney's fees.

Me ate Ware’ axe ll 7 .

vs soi Fe. ‘5 tx he A os i? r ’

f , . eI ty ws tha* - 3 > b *. . t? * i?

a ’ wre ee. - Se a] ‘ wk 5 * Pua F s ; ae ‘ ar. .

le eer Se ge ee Pt, ete “aed ee ae oe ae ee ee “Fy ie. oe set . Ge SS.

434 U.S. 412, 421 (1977), in which the

Supreme Court held:

"({A] district court may in

its discretion award attor-

ney's fees to a prevailing

defendant in a Titie VII

case upon a finding that the

plaintiff's action was fri-

volous, unreasonable, or

without foundation, even

though not brought in sub-

jective bad faith.”

Defendant asserts that plaintiffs pro-

ceeded in an unreasonable and frivolous

litigation, could serve in a Title VII

suit as a basis for imposing liability

on the attorney for attorneys’ fees in-

curred because of such unreasonable con-

duct. This argument is based on the

provision in Title VII permitting the

court to award the prevailing party "a

reasonable attorney's fee as part of

Since the plaintiffs‘ attorney in this

case did not act so unreasonably that

costs could be imposed under 28 U.S.C.

§1927, defendant's argument need not be

considered, yet the Court notes that it

would be very difficult to construe 28 |

U.S.C. §1927 as authorizing an award of ‘<

D-14

manner by engaging in extensive discovery

regarding the identity of those employers,

employers’ associations, and labor organi-

zations that are involved with the JATC

apprenticeship program and by then moving

to amend the complaint to join NCHBC and

the international union, rather than in-

dividual employers and the local unions.

Defendant views plaintiffs’ proposed

joinder of these two parties as an un-

reasonable failure to make use of the

information obtained through discovery

and states that plaintiffs have acted in

total disregard of the reasoning of the

Court's November 3, 1977 opinion.

Although plaintiffs’ proposed second

amended complaint does not adequately

comply with the Court's order regarding

indispensable parties, plaintiffs have

not proceeded in a manner that could be

categorized as “frivolous,” justifying

an award of attorneys’ fees. Rather,

BP FS, eer

Noe

D-15

they have attempted to comply with the

Court's order in the face of great dif-

ficulties arising from the fact that the

affected employers are so numerous that

it is impractical to join them all as

individual defendants. Plaintiffs can-

not be faulted for considering joining

contractors’ associations in lieu of

employers, as this alternative was re-

ferred to in the Court's earlier opinion

and not conclusively rejected. Eldredge,

supra, 440 F.Supp. at 526-527.

Defendant's memorandum regarding the

requested award of costs and attorneys'

fees does not specifically address the

issue of costs, yet it seems to assume

that where a case is dismissed due to

plaintiffs' failure to join indispens-

able parties the defendant should be

considered a "prevailing party" within

- D-16

the meaning cf Rule 54(a).° Certainly

defendant JATC is not a “prevailing party”

in the sense of having successfully de-

fended the suit on the merits, nor is

this a case where plaintiffs voluntarily

dismissed the suit.’ Even assuming that

defendant JATC should be considered a

"prevailing party,” Rule 54(d) does not

6 Federal Rule of Civil Procedure

54(d) provides, in relevant part:

"Except when express pro-

vision therefor is made either

in a statute of the United

States or in these rules, costs

shall be allowed as of course

to the prevailing party unless

the court otherwise directs ***,"

7 In Corcoran v. Columbia Broadcast-

sng System, Inc., 121 F.2d 575 (9 Cir.

1), Court of Appeals for the

j Ninth Cireuit considered the meaning of

the term “prevailing party” as used in

;, a statutory provision governing an award

BY of attorneys’ fees. The court concluded

: that the defendant was a "prevailing

2 party” although the case had not gone to

*f trial on the merits. Since the plain-

‘y tiff had poy mage Baenate 99 the suit,

¥ the defendant was prevailing party

“within the spirit and intent of the

statute.” 121 F.2d at 576.

—) eee he

. SL Rs Or

“ew -

sd .

: a> P

‘

— peal bo ’

; : ia nd Fe 4 : it

. : Tt . 4

: 3 Marty Pate bs 9) Peer i | Wey |

. ‘ ae oe ie ; | Aste CMe PAT

= eos } erst BPE Bhs AS ER ba ee BR od es 03 8 are : : ef) ieee |

Nidan. « Sa See, “CY Me FU they pas eet ot oa heed PURER Cees’ | TST te Ay bee tee | |:

compe 1 an award of costs. The rule pro-

vides that "costs shall be allowed as of

course to the prevailing party unless

the court otherwise directs." In this

case the most equitable resolution of

this matter is to have each side bear

its own costs. Plaintiffs have diligent-

ly though unsuccessfully attempted to

comply with the Court's order requiring

joinder of indispensable parties. The

Rule 19 issue that arose in this case

presented complex legal questions and

particularly difficult practical prob-

lems because of the factual setting of

this suit. This is not a case where

defendant can be said to have “prevailed”

in the usual sense. Rather, considera-

tions of equity prevented the suit from

continuing without the joinder of par-

ties who as a practical matter could

Gf ‘seers © vew ee.

aad ee

D-18

not be joined. The Court of Appeals

for the Ninth Circuit has stated that

8 While the Court is convinced the

result reached here is required for the

reasons set forth above, it is nonethe-

less troubled by the seemingly harsh

result. Counsel for plaintiffs have

devoted a substantial amount of time

and effort in vigorously prosecuting

this case. Because the Court is de-

sirous that women be afforded equal

opportunities in all areas of employ-

ment, including the construction in-

dustry, the Court asked counsel for JATC

at a status conference in chambers wheth-

er JATC would take every step to in-

sure that women would be given every

opportunity to be employed as carpen-

ters. In a proposed statement submit-

ted to the Court and counsel for plain-

tiffs, defendant JATC “reaffirm[ed]

{its} desire and intention to exert

[its] best efforts to assist women in

becoming more active and involved in

the carpentry craft through greater

participation in the carpenter appren-

ticeship program. The JATC will com-

municate’ with participating carpenter

local unions and with individual em-

ployers and employer associations to

make them aware of the opportunities

for employing female apprentices, and

will encourage individual employers

to hire qualified female apprentices.

It is the intention that these ef-

forts will result in an awareness of

individual employers (continued)

a re

Bes

bn sai to

D-19

“the awarding of [costs under Rule 54(d)]

is discretionary with the trial judge.”

K-2 Ski Company v. Head Ski Co., 506 F.2d

471, 476-477 (9 Cir. 1974). The Court

concludes that in this case discretion

should be exercised to deny the award of

costs sought by defendant JATC.

Accordingly, IT IS HEREBY ORDERED

that plaintiffs’ motion to join addition-

al parties defendant is denied, and the

case is dismissed without prejudice pur-

suant to Rule 41(b) on the ground that

plaintiffs have failed to comply with the

Court's order to join indispensable

to the employment of women and a sub-

stantiel increase in the number of

females enrolled in the apprenticeship

program." The Court expects that de-

fendant JATC will adopt this statement

and exercise its best efforts toward

these laudable goals. Hopefully the

ultimate relief sought by plaintiffs

may be obtained by this informal method.

‘

“5 Aw .a”

ies Vind

D-20

: parties.

: IT IS HEREBY FURTHER ORDERED that

defendant's motion for an award of

attorneys’ fees and costs is denied, and

the parties shall bear their own costs.

Dated: July 6, 1979.

/s/ Charles B. Renfrew

arles B. Renfrew

United States District Judge

Sei :

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a ee e

Sp OTA? Ole EES, A ee ee RS ee ge Oy en ee ee , 2a°r a an? Lae te -2

eee es Oe Te ee ee ae et

; APPENDIX E -

: UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Case No. C-75-2062-CBR

LINDA ELDREDGE, et al.,

Plaintiffs,

vs.

CARPENTERS 46 NORTHERN CALIFORNIA

COUNTIES JOINT APPRENTICESHIP AND

TRAINING COMMITTEE,

Defendant.

AMENDED MEMORANDUM OF OPINION

Filed: November 3, 1977

— s,s

;

Pee ae On ae

nd ae

By:

jars

iets

;

E-1

Plaintiffs Linda Eldredge and

Christine A. Mazur filed this sex dis-

crimination action on September 30, 1975.

The complaint alleged that the defendant

Carpenter 46 Northern California Coun«

ties Joint Apprenticeship and Training

Committee ("JATC") had violated Title

VII of the Civil Rights Act of 1964,

42 U.S.C. §2000e-2(d), by denying female

applicants equal opportunity for place-

ment on the new applicant referral lists

used to supply names to union dispatch-

ers for referral of applicants to jobs

as beginning apprentices. Plaintiffs

sought preliminary relief; certification

of a class composed of all women who ap-

plied to the JATC for placement on those >

lists between August 18th and 29th,

1975;2 orders requiring the JATC to

aS.

1 Plaintiffs have not amended the

complaint to allege any larger class.

However, they state in (continued)

SEA hy

E-2

place and refer applicants in the order

in which they apply and to establish an

affirmative action program for women;

damages including back pay; and costs of

suit.

Plaintiffs' motion for a temporary

restraining order was denied on October

3, 1975. Although the Court simulta-

neously ordered the defendant to show

cause why a preliminary injunction

should not issue, a hearing on that

order was withdrawn from the calerdar

pursuant to a stipulation and order on

December 30, 1975. On July 16, 1976,

defendant noticed a motion to dismiss

the action or for summary judgment; on

August 26, 1976, plaintiffs noved to

eae

their Memorandum in Support of Plain-

tiffs' Motion to Certify Action as a

Class Action, filed August 26, 1976,

at 1, that the class is to include all

women who were discriminatorily denied

admission to defendant's apprentice-

ship and training program at any time

since August of 1973.

Bis.

amend their complaint, for class certi-

fication, and for summary judgment.

Each of these motions was extensively

briefed by both parties, and oral argu-

ments were heard on September 16, 1976.

On September 30th, plaintiffs’ motion to

amend the complaint was granted, and an

amended complaint was filed February 10,

1977. The principal effects of the

amendment were to delete the prayer for

damages and preliminary relief, and to

add new allegations of discrimination.

In addition to the alleged discrimina-

tion in placement on referral lists,

plaintiffs now allege that defendant's

system for referring new applicants to

the job necessary for admission into ap-

prenticeship, under which the vast majo-

rity of new applicants are referred not

in numerical order off lists but as they

are requested by name by contractor-

employers, is itself discriminatory in

- ee

: 4 »

, teint £ As rae

E-4

effect. Since the amended complaint al-

leges that illegal effects result from

the operation of a system in which par-

ties not before the Court are intimately

involved, the Court on February 10, 1977,

requested the submission of further fac-

tual information and briefing relating

to defendant's suggestion that employers

and labor unions in the Northern Cali-

fornia carpentry trade are indispensable

parties to the action. (Memorandum in

Opposition to Plaintiffs‘ Motion for

Summary Judgment, filed September 9,

1976, at 6-7.) Defendant filed a memo-

randum on this point on March 18, 1977,

to which plaintiffs responded on May 9th.

The issues presently before the

Court are (1) whether the action must be

dismissed for failure to exhaust state

and administrative remedies; (2) whether

all necessary parties as defined by Rule

19, Fed.R.Civ.P., are presently before

E-5

the Court; (3) whether class certifica-

tion is appropriate; and (4) the cross

motions for summary judgment. For the

reasons set forth below, the Court con-

Cludes that plaintiffs have exhausted

their remedies within the meaning of

Title VII, but that the affected employ-

ers and unions must be joined prior to

any further disposition of the case.

I. FACTUAL BACKGROUND

Defendant JATC is a joint labor-

management committee composed of equal

numbers of employer and employee repre-

sentatives. The committee serves as

board of trustees responsible for the

administration of the Carpenter Appren-

ticeship and Training Trust Fund for

Northern California ("Fund"), which was

created by a 1963 agreement ("trust fund

agreement") among representatives of

various local unions of the United

Brotherhood of Carpenters and Joiners of

Ye,

E-6

America (AFL-CIO) and various associa-

tions of contractors who employ carpen-

ters in Northern California. The agree-

ment grants the defendant, as board of

trustees, “the power and duty * * * to

establish, support or maintain programs

* * * for the purpose of educating and

training persons as journeymen or ap-

prentices” in all classifications

covered by any collective bargaining

agreement requiring employer contribu-

tions to the Fund. To meet this obli-

gation, defendant has developed a set of

2 The Northern California carpentry

trade is governed by two master agree-

ments which are identical in all re-

spects relevant to this action. Carpen-

ters Master Agreement and Hiring Proce-

dures between the Northern California

Home Builders Conference et al. and the

Carpenters 46 Northern Courties Con-

ference Board, Exhibit 11 to the deposi-

tion of Charles F. Hanna, filed August

26, 1976; Carpenters’ Master Agreement

(1974-1977) between the Associated

General Contractors of California, Inc.,

et al. and the United (continued)

E-7

apprenticeship standards and established

e four-year apprenticeship program lead-

ing to journeyman status upon the com-

pletion of a specified number cf hours

of classroom training and on-the-job ex-

perience. The procedures for selecting

among applicants to enter this program

are the subject matter of this suit.

No selection procedures are speci-

fied in either the trust fund agreement

or the relevant collective bargaining

agreements. Authority to establish such

procedures in each of 43 local regions

Brotherhood of Carpenters and Joiners of

America, Exhibit 12 to the deposition of

Charles F. Hanna, supra ("Master Agree-

ments"). Individual @mployers neither

participate in negotiations nor sign

these agreements. Instead, they sign

brief Memorandum Agreements by which they

agree to comply with a master agreement,

to contribute to various trust funds,

including the apprenticeship and train-

ing trust fund, in the amounts speci-

fied in the master agreement, and to be

bound by all obligations imposed by the

corresponding trust fund agreements.

has been delegated to separate ) <al

Joint Apprenticeship and Training Com-

mittees ("local JATC's"). However,

those local bodies are required to oper-

ate within the framework of policies

adopted by the defendant, and most ad-

ministrative tasks are performed by

defendant's ten District Offices. Until

1974, procedures varied from region to

region, but in that year defendant in-

stituted a program imposing uniform

selection procedures designed to bring

all 46 counties governed by the trust

fund agreement into compliance with pro-

visions of state and federal law requir-

ing joint apprenticeship comrittees to

adopt affirmative action plans to in-

crease the number of minorities in the

trade.> The new procedures were

3 See Secretary of Labor, Regulations

on Equal Employment Opportunity in Ap-

prenticeship Training (continued)

- ee

Cea eee a ee eS eee ee eee

embodied in “Annex C-1," an Equal Oppor-

tunity Addendum to the Carpenters 46

Northern California Counties Apprentice-

ship Standards, and were approved by the

California Administrator of Apprentice-

ship. Local JATC's operated according

to Annex C-1 until November 18, 1976,

when the Santa Clara County Federation

of Joint Apprenticeship and Training

Committees obtained state approval of an

"amended C-1." The majority of local

JATC's have subsequently shifted to the

amended C-1 upon findings by the Admini-~

strator of Apprenticeship that they have

met their quotas for minorities. However,

29 C.F.R. Part 30 (1976); Cal.Labor Code

§§3070 et seq. and 3076 (West Supp. 1977);

Cal.Adm. T. 8, Part 1, Ch. 2, §§200

ct sed. Although California law was re-

cently amended to require joint appren-

ticeship committees to set goals for

women, the precise requirements and en-

forcement procedures of those new provi-

sions are as yet unclear. Neither party

relies on state law in this action.

ayia

a AS CUA mS 2% T+ eS. ey AA Ee a Ge eee) i Oe aa we Wks A) LA TA Sed LTE, be Lat UP?) ey b>. bie ee VAL Se alae

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E-10

a few are still operating under the ori-

ginal Annex C-1. |

Under both the original and the

amended Annex C-1, the qualifications

and requirements for admission to ap-

prenticeship are the same: to be quali-

fied, an applicant mat be at least 17

years of age and have a high school

diploma, G.E.D., or equivalent; to gain

admission, he must obtain a position on

a new applicant referral list wikitatunil

by a local JATC and a referral slip from

a local union dispatching him to a job

as a beginning apprentice. Once an ap-

plicant has satisfied both the listing

and the job requirements, he may sign an

apprenticeship agreement at one of de-

fendant's district offices, join the

union local, and attain the status of

“registered” or “indentured" apprentice

eligible for classroom training under

JATC auspices. All subsequent job

;

[Ps aR TO Sone

oF [ES hn Be 1 sf fee ies

eth h A 4 es

$ id

a’

‘

;

E-11 | a

referrals for registered apprentices are

handled exclusively by the union locals

pursuant to collective bargaining agree-

ments. JATC participation in such pro-

cedures is limited to the referral of

new applicants to their first jobs.

The original Annex C-1 provides for

a “closed list” system of first refer-

rais. Only applicants listed on an ex-

isting new applicant referral list are

eligible for referral, and placement on

that list may only be obtained during

limited open periods selected by the

local JATC's. Forty-five days prior to

a scheduled opening, the local JATC sends

announcements to news media, schools,

employment services, outreach programs,

and others specifying the date and time

of the opening, the duration of the ‘oe

period, and the procedure for applying.

At the specified time, applicants line .

up at the designated District Office and a

E-12

are given appointments to return and sign,

in the order in which they appeared, the

“applicant register" for the local JATC

from which they desire to be referred.

The names of those who are qualified are

placed on the new applicant referral

list in that order up to a maximum of

one and one-half times the estimated

number of persons to be referred during

the referral period. The list is re-

viewed by a district coordinator for

compliance with affirmative action goals,

posted, and distributed to local union

dispatchers. Applicants named thereon

remain in the pool of those eligible for

referral for two years, and may be re-

ferred in two ways. First, each appli-

cant is given a letter of subscription

or “hunting license," which he may use

to seek employment on his own. When he

finds a contractor willing to employ him

as a registered apprentice for at least

te: saad

E-13

sixty days, that employer's signature on

the letter will upon presentation to the

union dispatcher entitle the applicant

to a referral slip. Second, an appli-

cant may await placement off the new ap-

plicant referral list simply by keeping

the JATC apprised of a telephone number

where he can be reached within 24 hours.

When an employer calls the union dis-

patcher and requests a beginning appren-

tice without specifying any particular

individual, the dispatcher obtair. from

the JATC District Office the name of

the first ranking applicant in numerical

order on the list and issues a referral

slip for that person. After receiving a

referral slip by either method, the ap-

plicant is indentured.

Although the original C-1 provided

considerable room for employer judgment

in the selection of new apprentices, it

generated dissatisfaction among employers

5 4 ¥ ; Be. Nee : ~ i

< > > . : M peat OME Pays _ . - ee a.

Mee Es ae DS ee ee “ee roy ae ae

ee aE eS ee a gee Me ee Mee ae SES Roe

Renato

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E-14

because it restricted the use of the

hunting license and thus the potential

apprentices available for hire to those

named on an established list. This ob-

jection provided the impetus for adop-

tion of the amended C-1, which estab-

lishes an "open list” or "unrestricted

hunting license” procedure. An appli-

cant must still obtain a position on the

new applicant referral list prior to in-

denture, but he may do so at any time

and regardless of the number of appli-

cants already on the list. Thus, any

individual, whether or not listed with

the JATC in advance, may obtain a let-

ter of subscription signed by an employ-

er, place his name on the applicant

agreement, and be dispatched to work as

a registered apprentice forthwith. The

only significance of the list under this

system is that the rare employer who

" mat 4 > “ -

Fg Se MP De 4 ae By ior oe Aer, sie

ei, a AL pS NP ae eT? A Bees ana SR My: SS eS, RE

E-15

calls in for a beginning apprentice with-

‘it naming an individual will receive

the applicant highest in numerical order

on that list. It is not disputed that

employers are reluctant to hire new ap-

prentices by this method, sight unseen.

Of 288 new applicants referred to jobs

from the implementation of Annex C-1 un-

til June of 1976, only six, or two per

cent [sic], obtained jobs in this way.

Plaintiffs were not aware until mid-

1976 of the near futility of awaiting

numerical referral off the new applicant

referral lists. Believing high place-

ment on the list to be crucial to entry

into defendant's program, each plain-

tiff lined up outside a JATC District

Office at midnight on August 17, 1975,

nine hours before the scheduled opening

for applications. Ms. Eldredge thereby

obtained the eighth position in line

outside the District 5 (San Francisco)

Oe Pe:

‘ethe

sie at ye ae < ¢ 3 fee ie Te SA ae lk. -_ Se ew ~~

E-16

Office and Ms. Mazur obtained the eighth

position outside the District 8 (Marti-

nez) Office. Ms. Eldredge and Ms. Mazur

did subsequently receive the correspond-

ing eighth positions on local JATC new

applicant referral lists at San Fran-

cisco and Martinez, respectively. How-

ever, each plaintiff alleges that she

encountered an “atmosphere of discri-

mination that was hostile and dis-

couraging tc women" during the applica-

tion process.

Specifically, Ms. Eldredge states

that the first person in line at San

Francisco, a woman, was originall given

the number two appointment slip to re-

turn and sign the applicant register.

The error was corrected at the request

of the woman, but when she returned to

sign, she did so over a long strip of

white tape which had been placed over

the number one spot. Ms. Eldredge

seri me © i

Spee tn or me i Seana oe, @ ie: ee oe ee ae a. Sek see Cre” eee” ee

ee ae, . “ : eS ks, . ar Gre 3 oo’

a . s “ Z A

‘es

ao ad

E-17

further alleges that Percy Long, Appren-

ticeship Coordinator for District 5, was

evasive in answering her questions as to

how applicants were placed on new appli-

cant referral lists and how they would

be referred to jobs.

Ms. Mazur states that she applied

at the Martinez District Office speci-

fically in order to obtain referrals for

the Richmond area, where she understood

new apprentices were in greater demand,

and that she was deprived of the oppor-

tunity to sign the Richmond register

when District 8 personnel failed to in-

form her and other women in line that

two separate sets of numbered appoint-

ment slips were being distributed: one

for applicants who wished to sign the

Martinez local JATC applicant rv y.ster,

and the other for those who wished to

sign the Richmond local register. Arlis

Paslay, Supervisor of the District 8

E-18

Apprenticeship Program, announced to 2

those in line that anyone from the Rich-

mond, El Sobrante, or San Pablo area

should obtain appointment slips from his

secretary while those from Eastern

Contra Costa County should do so from

him. Although Ms. Mazur heard the an-

nouncement, she attached no significance

to it in light of her Oakland residence,

and as a result obtained the number

eight appointment slip for Martinez from

Mr. Paslay. When she returned to sign

the register, she learr.ed for the first

time of the Richmond register but was

told she could not sign until after all

those with Richmond appointment slips

had done so. Because two men who were

behind Ms. Mazur in line and who simi-

larly were unaware of the existence of

two sets of slips were permitted to sign

the Richmond register in fourth and

fifth positions, plaintiff feels there

sot

Lan en 5 = age

> aes ey Me Ae hy Se ee me, ee ae ae SE

2 ees * Pe a ~ « % ee Pa hana al eee. a « re i :

hee ae eR i pa

* ye eer

Oy is ae

E-19

thas been differential treatment on the

ba ‘basis of sex. However, neither man re-

members clearly how he came to sign the

Richmond register, and both are resi-

dents of San Pablo. Deposition of Joe

A. Silveira, filed Feb. 24, 1976, at 6,

14-21; Deposition of Victor Louro, fil-

‘4 ed Feb. 24, 1976, at 6, 13-17. There is

no evidence to suggest that either ob-

tained his position on the Richmond

cation of the procedure described by Mr.

Paslay.

On or about September 2, 1975, each

plaintiff filed formal charges with the

Equal Employment Opportunity Commission

("EEOC") alleging that she had suffered

discrimination in attempting to obtain a

3 position on defendant's new applicant

referral lists. The EEOC on September

8th referred the charges to the Califor-

nia Fair Employment Practices Commission

<“ B=20

("FEPC"), as required by 42 U.S.C.

§2000e-5(c), with the recommendation

that the case was appropriate for im-

mediate preliminary injunction. 4 By

notification of September 11, 1975, the

FEPC replied that it would not process

the charges in light of the EEOC recom-

mendation, and on September 29th the

: EEOC issued right-to-sue letters to both

plaintiffs on the ground that it would

not be able to investigate, conciliate

or file suit within 180 days. Upon re-

ceipt of those letters, plaintiffs filed

this action.

Despite the alieged discrimination,

both plaintiffs had fulfilled the first

4 Notice of Deferral Transmittal,

dated p. 1975, attached as Exhibit D

to defendant's Memorandum in Support of

ei Defendant's Motion to Dismiss, etc.,

a _ filed July 16, 1976. Although the EEOC

‘a request does not itself appear on this

form, the FEPC response cites that re- 4

quest as the reason for the state's

fajiure to process the claim.

E-21 ,

requirement for admission to apprentice-

ship when their names were placed on new

applicant referral lists. Accordingly,

they were eligible for job referrals

pursuant to the original Annex C-1 then

in effect. Each attended an orientation

meeting in late September, 1975, at which

she was informed of the two alternative

methods of obtaining a referral, but be-

cause each believed it was unlikely she

could convince a contractor to request a

woman by name, neither initially used her

"hunting license" to seek employment on

her own. Although each plaintiff con-

tinuously maintained a current telephone

number in the hope of receiving a numeri-

cal referral, neither has been dispatch-

ed by that method. In August, 1976,

after Ms. Mazur had received a letter

from the Martinez JATC stating that many

applicants were finding jobs on their

own, after defendant had moved for summary

E-22

judgment in this action, and after dis-

covery had revealed the unlikelihood of

numerical referral, both plaintiffs un-

successfully attempted to find jobs by

contacting contractors. At the same

time, they sousht to amend their com-

plaint to allege that defendant's main-

tenance of the “hunting license" system

as an alternative method of securing

job referrals itself violates Title VII.

As of May, 1976, defendant's records

show 3,220 registered apprentices, only

13 of whom are women. > Of the approxi-

mately 1700 persons who obtained posi-

tions on new sopiicant referral lists

when applications were opened in August

1975, 92 are women, but as of May, 1976,

5 In a subsequent affidavit, Charles

F. Hanna states that 25 women are cur-

rently enrolled &s apprentices. Affidavit

of Charles F. Hanna, filed March 10, 1977,

at 11. However, no complete statistics

later than those of May, 1976, are

presently before the Court.

hae pe | La ad -_

E-23

only four, or four percent of the women

on those lists had been dispatched to

jobs while 398, or 25 percent of the men

had been dispatched. Plaintiffs now

contend that this low representation of

women is the result of the establish-

ment and maintenance by defendant of the

"hunting license" system, ostensibly as

an alternative method of obtaining the

first job referral necessary for admis-

sion, but in fact knowing that because

of employer preference, it is the near-

ly exclusive method. They have submit-

ted the affidavits of three female ap-

prentices and one female applicant, as

well as a letter signed by twelve

female apprentices, describing the

employer discrimination against women

which, they allege, operates through the

hunting license system to exclude women

from apprenticeship. The act of discri-

mination complained of on this theory is

E-24

thus the defendant's use of a system

that pasges the decision as to who may

enter the program to others who are known

to discriminate against women.

Although plaintiffs continue to cm

plain of discriminatory practices in the

placement of women on new applicant re-

ferral lists, the relative insignifi-

cance of placement on those lists as

long as the hunting license system re-

mains available suggests that any re-

lief directed to such practices alone

would in no way enhance the ability of

women to gain admission to defendant's

program. ° Such relief would be appro-

priate only if the JATC were first

ordered to abolish the hunting license

6 Even Ms. Mazur, who seeks an order

granting her and others similarly situ-

ated their “rightful places” on the

Richmond new applicant referral list,

has failed to show that she would have

been referred to a job if she had been .

given a place on that list rather than

the Martinez list..

loon £6 4 ow Bw at

‘ gee,

system and to institute a new system for

referring applicants to employment, eli-

minating the present discretion of em-

ployers to select new apprentices from

those who apply to them. Plaintiffs

have not specified the precise system

they seek to have instituted, but it is

plain that they envision a system re-

quiring an employer who wishes to hire a

beginning apprentice to contact the union

local and enter a request without naming

any individual, whereupon the union would

be required to dispatch an applicant

selected by the JATC by means of one of

a number of non-discriminatory techni-

ques.’

7 Possibilities include the hiring

hall system currently used for referral

of journeymen to jobs; selection on the

basis of the renk order of scores of

applicants on one or more qualification

standards; random selection from a pool

of eligible applicants; selection on an

equal basis from separate lists estab-

lished for minorities, (continued)

rc!

— - ey ai + at Nl 7 ee

II. STION OF IES

Title VII provides an independent

basis for federal jurisdiction over ac-

tions pursuant to its terms. 42 U.S.C.

§2000e-5(f) (3). Prior to seeking judi-

cial relief, however, plaintiffs must

exhaust both state and administrative

remedies. Specifically, section 2000e-

(5) (c} requires that they first file

charges with the state agency, if any,

charged with authority to enforce state

employment discrimination laws, and

await state action for sixty days unless

proceedirgs are earlier terminated; and

section 2000e-5(f) (1) requires that they

file timely charges with the EEOC, defer

women, and all others; and random or

numerical selection from a pool of eli-

gibles chosen by a system guaranteeing

population parity. Affidavit of B. J.

Miller in Support of Plaintiffs' State-

ment of Position, filed May 16, 1977;

Plaintiffs’ Memorandum in Support of

Plaintiffs' Motion for Summary Judgment,

filed August 26, 1976, at 7-8,

E-27

filing suit for 180 days after those

charges are filed, and obtain a right+o-

sue letter from the EEOC. Defendant

argues that plaintiffs have not satis-

fied the state exhaustion requirement and

that the action must accordingly be dis-

missed. This contention is without merit.

Even where the deferral requirement

is not satisfied, dismissal is unneces-

sary; the proper course is to retain

jurisdiction while plaintiffs seek re-

dress from the state agency. Waters v.

Heublein, Inc., 547 F.2d 466, 468 (9 Cir.

1976), cert.denied, 45 U.S.L.W. 3840

(1977); Equal Employment Opportunity

Commission v. Wah Chang Albany Corp.,

_499 F.2d 187, 189 n.3 (9 Cir. 1974).

That procedure is unnecessary in this

case, however, since it is well settled

that section 2000e-5(c) is satisfied by

the procedure followed here: initial re-

ference of the matter to the state agency

that it will take no action. Love v.

Pullman Co., 404 U.S. 522, 525 (1972);

Motorola, Inc. v. Equal Employment Op-

portunity Commission, 460 F.2d 1245,

1246 (9 Cir. 1972). Defendant contends

that the FEPC's decision not to pursue

the matter was improper under California

law in that no reference was made to the

Administrator of Apprenticeship and no

hearing was provided. Regardless of the

merits of this contention, see Cal.Labor

Code §3096 (West Supp. 1977), violations

of state law in the treatment of a claim

do not offend the deferral rule: federal

policy requires only that the state be

afforded an opportunity to take the case.

Pacific Maritime Ass'n v. Quinn, 465

F.2d 108, 110-111 (9 Cir. 1972). Finally,

plaintiff's failure to allege deferral

in their pleadings is of no significance,

since no such allegations are required

by Rule 8(a)(1), Fed.R.Civ.P. Equal

—, -

E-29

Employment Opportunity Commission v. Wah

Chang Albany Corp., supra, 499 F.2d at

189,

A more difficult question is posed

4 by plaintiffs’ undisputed failure to

wait 180 days after the EEOC's assump-

tion of jurisdiction before filing suit,

as required by section 2000e-5(f) (1).

There is a sharp division in the autho-

rities as to whether this requirement is

jurisdictional. Compare Budreck v.

Crocker National Bank, 407 F.Supp. 635

(N.D.Cal. 1976), and Jones v. Pacific

Intermountain Express, 10 F.E.P. Cases

914 (N.D.Cal. 1976), with Lewis v. FMC

Corp., 11 F.E.P. Cases 31 (N.D.Cal. 1975),

and Howard v. Mercantile Commerce Trust

Co., 10 F.E.P. Cases 158 (E.D.Mo. 1974).

For the reasons stated in Budreck, supra,

the Court adheres to the view that com-

pliance with the statutory waiting period

%, is ordinarily a prerequisite to the

Pi a hia. a ’ 6 a tt (pe * oe)

Re eae oe Se a. PF Er, Oy en, ee ee a vl

E-30

assumption of jurisdiction. Plaintiffs

apparently believe that their prayer for

a temporary restraining order and a pre-

liminary injunction made compliance with

the statutory period unnecessary for all

purposes. Memorandum of Law in Response

to Defendant's Motion to Dismiss and for

Summary Judgment, filed August 26, 1976,

at 23-24. Such a per se rule cannot be

supported. However, in the circumstances

of this case the Court agrees that juris-

diction was properly assumed to entertain

those motions, and that the passage of

180 days prior to hearing on a motion to

dismiss cured the jurisdictional defect

that would otherwise have required dis-

missal of the action for permanent re-

lief.

At plaintiffs’ request, the EEOC -

issued right-to-sue letters only 18 days

after receipt of the case from the FEPC,

and this action was filed the following

; F

* : . +p & . ;

yo ae, aI BEE ee yee COTE we ae, ©), Te ee ia

ae ae

E-31

day. The result of this procedure was

to foreclose any possibility of concil-

iation -- either formal or informal --

prior to the hardening of positions and

narrowing of issues that inevitably

follow the assumption of roles as ad-

versary parties in a judicial proceed-

ing, impairing further efforts at volun

tary settlement. See Johnson v. Railway

Express Agency, 421 U.S. 454, 461 (1975);

Budreck v. Crocker National Bank, supra,

407 F.Supp. at 643-644. In the ordinary

case, such short-circuiting of the time

periods contemplated by the statute

frustrates the intention of Congress to

promote éonosifetion ani voluntary set-

tlement. Yet Congress itself recogniz-

ed, by enacting a provision authorizing

the EEOC to seek preliminary relief, 42

U.S.C. §2000e-5(f) (2), that the interest

in enforcement may outweigh the policy

favoring non-judicial settlement when an

ae,

be -

a - aa 2 ~~ = ~~ |

E-32 *

aggrieved person is threatened with ir-

reparable injury that imperils the ade-

quacy of any final relief. Congress

failed to similarly provide for private

litigants, however, and their efforts

to invoke the jurisdiction of federal

courts on motions for preliminary relief

pending administrative disposition of

the underlying charges have met with

mixed success. ° The conflicting results

8 For the view that courts have

jurisdiction to hear claims for preli-

minary relief despite the failure to

exhaust administrative remedies, see,

e.g., Drew v. Liberty Mutual Insurance

ae 480 F.2d 69 (5 Cir. 1973),

cer P Gere cened, 417 U.S. 935 (1974); Parke

pepese mlop, 517 F.2d 785 (5 Cir. 19

Rotate vy. forcester Foundat Lon ity

tal ’ wiology, dee, 525 7 F.Supp.

ss.), aittd 545 F.2a 933 (1

Cir. 1976). For the “opposing view,

see, @.g., Nottelson v. A. O. Smith

Corp., 397 F.Supp. 928 (E.D.Wis. 1975);

v. Shell Oil Co., 378 F. Supe 1042

~D.Mich. 1974), al dismis as

weer t 519 F. igi 403 appea Cir. roaeye

cor ns v. Southwestern Bell Tel ephone

“7 F. upp D. Okla. ..

Other courts have (Continued)

te are —

i ree

E-33

derive from the courts’ efforts to acco-

modate two competing concerns: first,

that it would be unfair and unreaiistic

to require exhaustion where rights are

threatened with irreparable harm, a

failure to act may permanently foreclose

adequate relief, and the EEOC's caseload

precludes it from seeking preliminary

relief, see Bowe v. Colgate Palmolive

Co., 272 F.Supp. 332, 338 (S.D.Ind.1967),

blurred the distinction between juris-

diction and the availability of preli-

minary relief, and appear to hold that

jurisdiction may be available only in

cases where relief on the merits is

appropriate, see Berg v. Richmond

Unified School District, 528 F.2d 1208,

Cir. 1975), cert.granted, 45

U.S.L.W. 3508 (1977); Jerome v. Viviano

Food Co., Inc., 489 F.2d 965, 966 (6

Cir. 1974) (holding no irreparable harm

and thus no jurisdiction where no exist-

ing employee-employer relationship);

nald v. Ray, 377 F.Supp. 986, 987

-D.Tenn. 74}; or only where the cir-

pg ese particularly demand such re-

lief, Townsend v. mn Co., 420 F.Supp.

189, 153 1b tase) 1878) Tontaliatory

discharge).

E-34

aff'd in part and rev'd in part, 426 F.2d

711 (7 Cir. 1969); Drew v. Liberty Mutual

Insurance Company, 480 F.2d 69, 73-74

(5 Cir. 1973), cert.denied, 417 U.S. 935

(1974); and second, that to permit indi-

viduals to bypass the statutory mechanism

in cases where the EEOC does not seek

prompt judicial relief would flood the

courts with such requests, see Collins v.

Southwestern Bell Telephone Co., 376

F.Supp. 979 (E.D.Okla. 1974).

9 A third concern occasionally men-

tioned is that without jurisdiction over

the underlying cause of action, a court

is precluded from ce tbrey relief of

any sort. Troy v. Shell Oil Co., supra,

378 F.Supp. at 1048; Nottelson v. A. O.

Smith Corp., supra, 397 F.Supp. at 933.

s concern seems unfounded, however,

in view of the principle established in

other areas of administrative law that

a court has power to preserve the status

quo by staying private action pending an

administrative decision. See Develo

ments in she Ee ent Discrial-

na’. T VII o Beil Biohe

paten ang Taye cat of me Gre Gass

1977).

. > r :

ita WO gt _ ~ : re : She Mies .- 5 ‘

DS Shia et Gaeee. Poe ot) Ae eee AY ees | OE ew, ee

Ce ee

E-35

Although the issue is currently be-

fore the United States Supreme Court, the

law of this Circuit at the present time

is that in a "limited class of cases"

where there exists a high probability of

success on the merits and the threat of

irreparable harm, a court may entertain

a suit to maintain the status quo pend-

ing administrative disposition. Berg

v. Richmond Unified School District, 528

F.2d 1208, 1211 (9 Cir. 1975), cert.

granted, 45 U.S.L.W. 3508 (1977). Al-

though the facts of this case depart

from the Berg rule in at least three re-

spects, none of those differences calls

for a change in the result. First,

since the motion for a preliminary in-

junction was withdrawn from the calendar,

the Court has made no findings on the

merits. Nevertheless, the EEOC's evalua-

tion of the case as one appropriate for

immediate preliminary injunction would

Ri A ss — A NS 4

Wigs Waals rte te. PREIS oe eR a oe 50 are

ie oo » 1 th. % S ¥ ; at | ad

re » Ls P :

E-36

appear to satisfy the threshold test

that there be some substance to the

Claim. To permit suits only where such

a determination is made need not lead

to any flood of litigation. Second,

plaintiffs’ motions went beyond merely

“maintaining the status quo," since

plaintiffs were not employees seeking

relief from threatened changes in the

employment relationship, but applicants

for admission to defendant's program.

A few courts have drawn a distinction

on this basis, see footnote 7, supra,

but differential treatment is not justi-

fied by the policies invwulved: if a

preliminary injunction is otherwise

appropriate, it makes no difference tc

the injured plaintiff or to the enforce-

ment of Title VII that the injury is to

be imposed by inaction rather than by

action. Finally, plaintiffs arguably

sought more than interim relief pending

E-37

administrative disposition, since the

EEOC had prematurely issued its final

right-to-sue letter, thus terminating

the administrative phase. See EEOC v.

Pacific Press Publiching Association,

535 F.2d 1182, 1186 (9 Cir. 1976).

However, the EEOC had certified that it

would be unable to reach the case with-

in the 180-day period. Thus, no admini-

strative disposition was to be antici-

pated. Moreover, the prospects of in-

formal settlement are unlikely to have

been impaired by the initiation of the

suit for permanent relief to any greater

extent than they would already have been

impaired by the filing of the motion for

a preliminary injunction. To hold that

the action was barred by an EEOC error

having no effect on statutory policy

would indeed be pointless. Had the

parties known that the 180-day period

would be interpreted as jurisdictional,

E-38

they could have limited their initial

prayer to preliminary relief, waited 180

days, obtained a right-to-sue letter,

and sought permanent relief, all without

any significant substantive effect.

Although the Court thus concludes

that jurisdiction was properly taken over

the claims for preliminary relief, this

conclusion does not in itself justify

the assumption of jurisdiction over the

underlying claim. That jurisdiction can

only be justified if the lapse of 180

days between the EEOC's assumption of

jurisdiction and the hearing on a motion

to dismiss can cure the initial failure

to meet that jurisdictional requirement.

It is settled that subsequent receipt of

a right-to-sue letter can cure the juris-

diction in a suit initially filed with-

out one, Berg v. Richmond Unified School

District, supra, 528 F.2d at 1212, but

the differing policies involved make it

be cae ate aa

i\ ' 4

E-39 4

less clear that the mere passage of time, .

absent a dismissal and a refiling with

the EEOC, should ordinarily be permitted

to cure the jurisdictional defect of pre-

mature filing. Compare Budreck v. Crocker

National Bank, supra, 407 F.Supp. at 647

n. 19, with Berg v. LaCrosse Cooler Co.,

548 F.2d 211, 213 (7 Cir. 1977), and Troy

v. Shell Oil Co., 519 F.2d 403 (6 Cir.

1975). Where the parties were properly

before the Court in the first instance

on motions for pre*iminary relief, how-

ever, the Court concludes that no policy

would be served by a dismissal. The only

departure from proper procedures was the

premature issuance of the right-to-sue

letter and the resulting premature fil-

ing of a complaint for permanent reliel.

To dismiss now would not deter other

litigants from seeking judicial action

in circumstances where preliminary relief

may be appropriate, and thus would not |

n ge MENTE CP ares

E-40

serve the policy of promoting informal

settlement prior to the onset of litiga-

tion. It would no doubt discourage the

EEOC from divesting itself of claims

prematurely, and thus would serve the

congressional purpose of providing ample

opportunity for administrative action.

Where the backlog of cases prevents an

administrative disposition in any case,

however, this result has insufficient

practical impact to justify the imposi-

tion of hardship in a particular case.

III. RULE 19

It is no doubt true, as plaintiffs

argue, that a joint apprenticeship com-

mittee cannot avoid liability under

Title VII by delegating the responsibi-

lity for screening applicants to a third

party. See Crockett v. Green, 388 F.Supp.

912 (E.D.Wis. 1975), aff'd 535 F.2d 715

(7 Cir. 1976). The relief contemplated

in this case, however, will have

4 J Right.

E-41

substantial impact on both the employers

who must hire apprentices if they are to

receive on-the-job experience and the

unions which pursuant to collective bar-

gaining agreement are responsible for

the dispatch of all employees to jobs

10 ses

with signatory employers. Rule 19

not, of course, require joinder of all

part‘es who may be affected by an order.

10 Rule 19 provides in part:

"“(a) Persons to be Joined if Feas-

ible. A person who is subject to ser-

vice 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 to the action

and is so situated that the disposition

of the action in his absence may (i) as

a practical matter impair or impede his

ability to protect that interest or (ii)

leave any of the persons already parties

subject to a substantial risk of incur-

ring double, multiple, or otherwise in-

consistent 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

plaintiff but refuses (continued)

E-42

The issues are, first, whether employer

or union involvement is of such a nature

that without them complete relief cannot

be accorded those already parties, Rule

19(a) (1), and second, whether their in-

terests are such that to proceed in

to do so, he may be made a defendant, or,

in a proper case, an involuntary plain-

tiff. If the joined party objects to

venue and his joinder would render the

venue of this action improper, he shall

be dismissed from the action.

"(b) Cetermination by Court Whenever

Joinder not Feasible. If a person as

described in subdivision (a) (1)-(2) here-

of cannot be made a party, the court

shall determine whether in equity and

good conscience the action should pro-

ceed among the parties before it, or

should be dismissed, the absent person

being thus regarded as indispensable.

The factors to be considered by the

court include: first, to what extent a

judgment rendered in the person's ab-

sence might be prejudicial to him or

those already parties; second, the ex-

tent to which, by protective provisions

in the judgment, by the shaping of re-

lief, or other measures, the prejudice

can be lessened or avoided; third,

whether a judgment rendered in the per-

son's absence will be adequate; fourth,

whether the plaintiff will have an ade-

quate remedy if the action is dismissed

for non-joinder.

a 2

~~ fea

E-43

their absence may as a practical matter

prejudice them or subject the parties

already before the Court to a substan-

tial risk of incurring inconsistent ob-

ligations, Rule 19(a)(2). If either of

these conditions is shown, Rule 19 (a)

requires that the absent parties be

joined if to do so will not deprive the

Court of jurisdiction over the subject

matter. If a party cannot be joined as

required, Rule 19(b) calls for a second

inquiry to determine whether in equity

and good conscience the action should be

dismissed.

Plaintiff's initial contention is

that when no relief is sought against

absent parties, those parties cannot be

regarded as "indispensable." This argu-

ment is wholly without merit. By defi-

nition, parties to be joined under Rule

19 are those against whom no relief has

formally been sought but who are so

E-44

situated as a practical matter as to im-

pair either the effectiveness of relief

or their own or present parties’ ability

te protect their interests. The cases

cited by plaintiffs are not to the con-

trary. Each merely lists the failure to

seek relief against the absent parties

as one factor in a decision that joinder

was not required, in cases where no in-

volvement or participation by those par-

ties in che challenged discriminatory

practices had been alleged. Hibbler v.

Miller's of Birmingham Bankhead Highway,

Inc., 496 F.2d 1171, 1172 (5 Cir. 1974);

Waters v. Heublein, Inc., 11 E.P.D.

q10,620 at 6587 (N.D.Cal. 1975), rev'd

on other grounds, 547 F.2d 466 (9 Cir.

1976), cert.denied, 45 U.S.L.W. 3840

(1977). In contrast, the involvement of

both employers and unions in the subject

matter of this action is evident on the

face of the amended complaint.

E-45

In a similar vein, plaintiffs con-

tend that complete relief can be accord~

ed by an order against the JATC alone,

since pursuant to the trust fund agree~-

ment it is solely responsible for estab-

lishing and maintaining apprenticeship

programs, since no particular procedure

for selecting apprentices is enshrined

in any agreement to which absent parties

are signatories, and since it alone se-

lected and can abolish the “hunting

license" system, subject to state appro-

val. This argument misconceives the

nature of the issues under Rule 19(a) (1).

Although the legal position of the pre-

9 sent defendant and its theoretical abi-

lity to comply with an order are rele-

vant, they may be outweighed by a find-

ing that absent parties may as a practi-

¥ cal matter prevent the full realization

¥.

h: of the intended relief. The Court must

guard against the formulation of "'paper'

E-46

decrees which neither adjudicate nor, in

the end, protect rights." Schutten v.

Shell Oil Co., 421 F.2d 869, 874 (5 Cir.

1970). Thus the contractual rights and

duties relied on by plaintiffs are only

a starting point for a full considera-

tion of the actual role of each party in

the formulation of the practices complain-

ed of and the stake each has in maintain-

ing them. See LeBeau v. Libby-Owens-Ford

Co., 484 F.2d 798, 800 (7 Cir. 1973).

A. The Employers

Employers are not obligated to hire

beginning apprentices by either the master

collective bargaining agreements govern-

ing the trade}

or the trust fund agree-

ment itself. They need only employ one

apprentice (at any experience level) if

five journeymen are employed, and one

1 [sic] See note 2, supra.

7s +t mt te

tes 3 ee hr

i 4

E-47

additional apprentice for each five

journeymen thereafter. Master Agreement

§40. When an employer does request a be-

ginning apprentice, he retains the right

to reject the individual dispatched “for

any reason," Master Agreements §49(9),

subject only to liability for two hours

"show-up time" to be paid to the appli-

cant, Master Agreements §30. No new

system of referral adopted by the JATC

could either require contractors to em-

ploy beginning apprentices, other than

those necessary to meet the contractual

minimum, or compel those who do so to

accept any particular individual. Nor

could such an obligation be created by

any decree fashioned by this Court in

their absence. Employers could refuse

to hire beginning apprentices or refuse

to hire women when referred without vio-

lating the terms of a decree ordering

the JATC to adopt a revised referral

ae eee oz 7 :

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E-48

system. Although such actions could

violate an order requiring the imple-

mentation of an affirmative action plan

to promote the indenturing of women, the

employers are not sufficient*y "“identi-

fied * * * in interest" with the JATC to

be bound by such a decree as non-party,

participants under Rule 65(d), Fed.R.Civ.

P. Regal Knitwear Co. v. Board, 324 U.S.

9, 13-14 (1945); see Equal Employment

Opportunity Commission v. Local Union No.

3, International Union of Operating

Engineers, No. C-71-1277-RFP (N.D.Cal.

March 16, 1977).

Employers thus have the ability to

defeat any relief ordered in this action

in three ways. First they may refuse to

hire new apprentices at all, if they do

not wish to accept individuals without

first interviewing them. Under a revised

referral system, the absence of appli-

cants actively seeking to convince

a a % a a -

E-49

employers to hire beginning apprentices

may tend to encourage this result. Of

course, such action would eventually re-

sult in a reduction of the total number

of apprentices, and some employers would

ultimately be forced to hire new appren-

tices in order to maintain the appren-

tice-journeyman ratios specified in the

collective bargaining agreements and in

the California statute governing projects

undertaken pursuant to contracts with

state and local government entities. Cal.

Labor Code §1777.5 (West Supp. 1977).

However, no evidence has been submitted

to demonstrate the impact of these limi-

tations on the hiring of new apprentices,

in light of the large number of exper-

_ienced apprentices presently unemployed,

the inapplicability of the contractual

provision to employers using less than

five journeymen, and the numerous exemp-

tions created by the statute.

E-50

Second, employers may, with the co-

operation of union locals, hire unregis-

tered, non-union apprentices, who may

obtain sufficient experience and skill

to be classified as journeymen and thus

be accorded equal treatmeat at the hir-

ing hall without regard to participation

in defendant's program. Such scuichoait Cripis

would not, however, satisfy either the

contractual or the statutory obligation

to hire apprentices in specified ratios.

See Master Agreements §40. Cal.Labor

Code §1777.5, supra. Moreover, under

United States Department of Labor regula-

tions all contracts covering federally

financed and assisted construction must

include a clause requiring non-registered

apprentices to be paid at a rate deter-

mined by the Secretary of Labor for the

class of work actually performed, rather

than the lower rate permitted for regis-

tered apprentices. 29 C.F.R. §5.5(a) (4)

E-51

(1976). Again, no evidence as to the

overall impact of these provisions on the

trade is before the Court.

Finally, assuming that these provi-

sions will motivate employers to hire

significant numbers of beginning regis-

tered apprentices, female applicants may

still be rejected at a cost of two hours’

pay, which may be estimated from the wage

scale effective June 16, 1976, at approx-

12 Plaintiffs have sub-

imately $21 each.

mitted substantial evidence which appears

to show that it is the employers, not the

JATC, who are responsible for the dearth

of women in the carpentry trade. There

12 The schedule of wages attached to

the Northern California Home Builders

Conference Master Agreement, Appendix 7

to Defendant's Memorandum in Opposition

to Plaintiffs’ Motion for Summary Judg-

ment, filed September 9, 1976, shows a

wage rate for beginning apprentices of

$6.75 per hour and a schedule of contri-

butions for fringe benefits totalling

$3.80 per hour, for a total of $21.10 for

the two hours of show-up time.

vn - va % - nal Kak! YY. tee ,

t a : é

E-52

is nothing in the record to indicate that

the reasons presently given by employers

for rejecting women would not persuade

them to continue rejecting them at this

13 It is not clear

slight additional cost.

whether this tactic would violate any

contractual obligation owed to the JATC,

but even if it would, there is no sugges-

tion in the record that the JATC has en-

forcement authority adequate to force re-

calcitrant employers to accept female

applicants.?4

13 Defendant has suggested that the

use of a closed list may have motivated

local JATC employees to accelerate ef-

forts to indenture minority apprentices

in order to return to the free selection

system once quotas were attained. This

factor would almost certainly be out-

weighed in this case, however, by the

documented reluctance of employers to

hire women.

14 Defendant has stated that the JATC

has some police authority and can with-

draw the use of apprenticeship (continued)

—s

¢e tips

E-53 ie

The record does not reveal whether E-.

an applicant who is dispatched and re-

jected by the employer would become a

registered apprentice. Assuming that he

would, the ability of employers to re-

ject those dispatched would not impede

attainment of plaintiffs’ announced goal

of entry into defendant's program. It

would, however, prevent any meaningful

participation in that program, since only

facilities from employers who hire unin-

dentured apprentices. Memorandum of

Points and Authorities RE: Indispens-

able Parties and the Jurisdiction of the

Court, filed March 18, 1977, at 5. Wo

document evidencing this authority is

before the Court, and it is unclear

whether the JATC could withdraw facili-

ties from employers who do not bypass

the referral system entirely but simply

refuse to accept certain individuals.

Even if this sanction is available, any

attempt to impose it would place the JATC

in the difficult position of having to

prove the iliegal motive of discrimina-

tion or face liability for refusing to ~

provide services merely because the on

employer had exercised his contractual =

right to reject applicants “for any :

reason." Master Agreements §49 (9). e

i. Saat - ae

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aes oe * Vv * a ot) . es Se | R ~~ aoe. he

gta

wear Wg™ St er bb iis: PUL RE ST otha he os

E-54

schooling, not on-the-job training, would

be available to women. Thus, the relief

obtained in this lawsuit would serve only

to swell the ranks of unemployed appren-

tices. This surely cannot be the “com-

plete relief" contemplated by Rule 19(a).

It is no answer to these problems

to say that plaintiffs seek limited re-

lief in order that women may gradually

integrate the trade, and that if future

employer discrimination excludes women

from the full benefits of apprenticeship,

such women may seek legal redress against

the responsible parties. The plain fact

is that the opportunity to gradually in-

tegrate 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 will have any

effect on the apparent source of the

E-55

discrimination alleged -- the absent em-

ployers. More women might indeed attain

the status “registered apprentice," but

to obtain jobs they would have to bring

to court precisely the same parties who

would be sued in the absence of any de-

cree against the gare, ?> Although the

plaintiffs' motive -- to avoid unneces-

sarily taxing judicial resources -- is a

laudable one, the Corrt must conclude

that it would be a misuse of those re-

sources to pursue this action to a con-

clusion in the absence of rarties with-

out whom any relief would quite probably

be a futile gesture.

15 In fact, a decree establishing a

closed list referral system could hamper

the process of obtaining relief against

discriminating employers. Under the

amended Annex C-1, any woman may seek

work as a carpenter and file suit against

each employer who rejects her because of ‘

her sex. Under the type of system sought 7

by plaintiffs, the class of potential | :

plaintiffs who may sue a given discrimi- bd

nating employer will be far more limited. d

; \ He 4

7 i. ; : + x

ot r ' eae pier da als he aes bas {ek

eee IME Ath tao 5 Bah Ea Ae me Se fake Ral) an Cee Be

E-56

None of the authorities cited by

aplaintiffs [sic) supports a contrary

result. The Court has been directed to

only one case in which relief was aff .rded

against a party which had used a non-

party's discriminatory action as the

vehicle for its own discrimination.

Crockett v. Green, supra, 388 F.Supp. 912.

There, the City of Milwaukoe was ordered

to suspend a requirement that skilled

tradesmen have completed a formal appren-

ticeship and a designated amount of jour-

neyman experience prior to hiring, be-

cause past discrimination had prevented

blacks from obtaining those qualifica-

tions. Since the effectiveness of that

relief did not depend in any way on union

participation, Crockett provides no pre-

cedent for the relief sought here. The

Y analogy would be more apt if the City had

there been ordered to require the union

oy, to accept more blacks into apprenticeship.

. . |

i ? - yy

Baas ty : vat “ 4 : }- v so : at agit

fe »ae mt” i se? wee td 2» me 7. * ~- WER, Ve ) a ey 2 a

E-57

Plaintiff relies on decisions hold-

ing that relief may be granted against

unions to modify discriminatory job re-

ferral systems in the absence of the af-

fected employers. Kaplan v. Intern.

Alliance of Theatrical and Stage Employees

and Motion Picture Machine Operators, 525

F.2d 1354 (9 Cir. 1975); United States v.

Sheet Metal Workers Intern. Ass'n, Local

Union No. 36, 416 F.2d 123, 132 n.16

(8 Cir. 1969); United Minority Workers v.

Intern. Union of Operating Engineers, 10

E.P.D. 410,581 (D.Ore. 1975); Butler v.

Local No. 4 and Local No. 269, Laborers’

Intern. Union, 308 F.Supp. 528 (N.D.I11.

1969). None of these decisions, however,

involved allegations of discriminatory

conduct by the employers, a fact on which

the courts expressly relied in both

Kaplan, supra, 525 F.2d at 1361, and

United Minority Workers, supra, 10 E.P.D.

at 6402. Where, as in those two cases

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et pe Are ¢ J “ey * 4 7 @hth . ‘

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E-58

and in Butler, supra, only internal union

16 there was no

policies were challenged,

reason to fear that the relief would not

be complete. A more substantial question

was presented in Sheet Metal Workers,

supra, in that the changes in referral

practices ordered by the court required

modifications in the collective bargain-

ing agreement and thus were not possible

without the cooperation of the employers.

In apparent recognition that such relief

could not be ordered against the unions

alone, the Court of Appeals stated that

compliance could be achieved by discon-

tinuing those practices which were found

16 In Butler v. Local No. 4 and Local

No. 269, Laborers’ Intern. Union, owes.

the court expressly rejected the union

defendants’ assertion that plaintiffs

sought the creation of a hiring hall, a

remedy which would have required the co-

operation of non-party employers. In-

stead, the court found that plaintiffs

had alleged the existence of a de facto

hiring hall and sought only to end the

unions' discriminatory practices within

that framework. 308 F.Supp. at 532.

oe ee a ae §

E=59

to violate Title VII, presumably by aban- ‘

doning the referral system altogether. In i

this case, no such resolution is possi-

ble, because the defendant's effective

abandonment of its responsibility for

referral is precisely the act complained

of, and the underlying job requirement

cannot be eliminated without altering

the nature of the apprenticeship program

itself.

Of more relevance to the instant

case are decisions in which courts have

found evidence suggesting that the ab-

sent party may have been responsible for

the alleged discrimination, and have

therefore ordered joinder. Gilmore v.

Kansas City Terminal Railway Co., 509

F.2d 48, 52-53 (8 Cir. 1975); Evans v.

Sheraton Park Hotel, 503 F.2d 177, 181

(D.C.Cir. 1974). Cf. Wright v. Stone

4“:

Container Corp., 524 F.2d 1058, 1062

(8 Cir. 1975) (doubting adequacy of

E-60 "

class representative who failed to join

J union whose policies contributed to

creation of suspect practices); Equal

Employment Opportunity Commission v.

Eagle Iron Works, 8 E.P.D. 49541, at

5356 (S.D.Iowa 1974) (mere signatory of

collective bargaining agreement not in-

dispensable party where no suggestion it

has engaged in unlawful practices);

Ostapowicz v. Johnson Bronze Co., 369

F.Supp. 522, 531-532 (W.D.Pa. 1973),

modified on other grounds, 541 F.2d 394

(3 Cir. 1976) (union need not be joined

where discriminatory effect of coilec-

tive bargaining agreement is caused

solely by employer actions). See also

Haas v. Jefferson National Bank, 442

F.2d 394, 397-398 (5 Cir. 1971) (absent

party who participated in alleged unlaw-

ful conversion should be joined). Even

where no responsibility for unlawful con-

duct is alleged, courts have recognized

E-61

that relief may be ineffective where ab-

sent parties are “active participants"

without whom a program challenged as

oe 7

ats

‘* «

discriminatory could not operate. Spirt

v. Teachers Ins. and Annuity Ass'n of

America, 416 F.Supp. 1019, 1022 {S.D.N.Y.

oar

1976); McDonald v. General Mills, Inc.,

387 F.Supp. 24, 38 (E.D.Cal. 1974). In

this case, the employers are not only

participants in the apprenticeship pro-

gram but indeed the allegedly principal

cause of the discrimination complained

of. Plainly here, as in Evans v.

Sheraton Park Hotel, supra, the Court

should decline the invitation to grant

“rather ineffective symptomatic relief,

leaving the root * * * to continue.”

£93 F.2d at 181.

This determination alone is suffi-

cient to require joinder. However, it

should be noted that the second factor

to be considered under Rule 19(a), the

Oe) a

re.

< = >. -—ee 5 “a gee yy

ww we

4 ty” ae

E-62

interest of the employers in the subject

matter of the action, supports joinder

as well. Under the present system enm-

plovers enjoy the right to select their

own beginning apprentices subject only

to the requirement that the applicant

be listed with the JATC in localities

where the original Annex C-1 is in ef-

fect. Even where there are no objective

qualifications for a job, the interest

of an employer in selecting those who,

for any non-discriminatory reason, he

believes to be more highly motivated or

more compatible with his existing work

force, is not an insubstantial one. Nor

does recognition of that interest re-

quire any assumption that women dis-

patched under a revised system would be

less motivated or qualified in any way

than men: the employer's interest in

selecting an employee of his own choos-

ing would be violated by the dispatch

- 7 4

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or Sy aS re Ce) oo 4 ee | rs Ba Ab ea R= Pe? “Sey

aa) esas “Ses

7 ; te

of an undesirable man as much as by that

of a similar woman. It is no doubt true

that the "‘unstandardized and subjec-

tive'" judgments presently being made

""*lend themselves to arbitrary and dis-

criminatory hiring'", Waters v. Furnco

Construction Corp., 551 F.2d 1085, 1089

(7 Cir. 1977), quoting Reed v. Arlington

Hotel Co., Inc., 476 F.2d 721, 724 (8

Cir.), cert.denied, 414 U.S. 854 (1973),

and plaintiffs have suggested that such

results have occurred in this case.

Nevertheless, the employers are entitled

to their day in court to contest these

allegations before the Court issues an

order abolishing the prerogatives they

presently enjoy.

Plaintiffs maintain that the em-

ployers here gave up their ability to

protect this interest when they agreed

to be bound by the trust agreement and

thus delegated to the JATC the authority

wes a

Pi 2

<1 o, ; .

Ser : ’

+ Sag t | Pee , — ;

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Re, . |

E-64

to establish apprenticeship programs.

Although the terms of the instrument are

unclear on this point, we may assume

that the employers did thereby agree to

submit to any teferral system adopted by

the JATC. Even so, they retained a sig-

nificant measure of control over the

system selected, since they appoint half

the members of the JATC and may bargain

with the remaining union members. A

court order instituting a new referral

system will deprive them of this control.

Of course, such an order would not wholly

eliminate wmployer freedom to select ap-

prentices, since they are always entitl-

ed to reject applicants referred. That

freedom would, however, be constrained

in two ways: it could be exercised only

at the price of show-up time; and the

pool of applicants would be limited to

those referred, one at a time, by the

union. Any conceivable decree would thus

pe AAS

‘% eat

ho a —..

E-65_

tal

practically impair the employer's abi-

lity to protect a significant interest

in selectivity in hiring.

The fact that this interest stems

from a collective bargaining agreement

does not, as plaintiffs suggest, render

it irrelevant for purposes of Rule 19.

None of the decisions cited for that

proposition establishes any such per se

rule: each court has examined the cir-

cumstances of the case to determine the

actual effect of the action on the ab-

sent party, and a key consideration has

been that the discriminatory conduct

alleged is limited to the named defen-

dant. Waters v. Heublein, Inc., supra,

11 E.P.D. at 6587; Rosario v. New York

Times Co., 10 E.P.D. 410,155, at 7704

(N.D.Ga. 1975); Equal Employment Oppor-

tunity Commission v. Eagle Iron Works,

supra, 8 E.P.D. at 5356; Ostapowicz v.

Johnson Bronze Co., supra, 369 F.Supp.

ec aie

at 522, 531-532.

: Nor does the presence of a party

who is already defending employer in-

terests to some extent obviate the need

for joinder. Though frequently mention-

ed, this factor has merely been one

among many considered in determinations

pursuant to Rule 19. See United States

v. Navajo Freight Lines, Inc., 525 F.2d

1318, 1322 (9 Cir. 1975) (internationai

and local unions); United States v.

T.I.M.E.-D.C., Inc., 517 F.2d 299, 310

(5 Cir. 1975), vacated on other grounds,

45 U.S.L.W. 4505 (1977) (international

and local unions); United States v. St.

Louis - San Francisco Railway Co., 52

F.R.D. 276, 280 (E.D.Mo.), rev'd on

other grounds, 464 F.2d 301 (8 Cir. 1971),

cert.denied, 409 U.S. 1107, 1116 (1973)

(union and its members); United States v.

Enterprise Ass'n of Steamfitters, 360

F.Supp. 979, 995 (S.D.N.¥. 1973) (trade

eae

3 1.

_ ~*

, ie

ee *

‘elk eee

E-67

association and its members). Here the

JATC is a legal entity separate and dis-

tinct from the employers and unions

which created it. No agency relationship

has been alleged, and the JATC's inter-

ests are not identified with those of

the employers as are those of the enti-

ties dealt with in the cases cited

above. In fact, the JATC has no inde-

pendent interest in defending employer

selectivity. Here, as in Grogg v. Gen-

eral Motors Corp., 12 E.P.D. 411,204

(S.D.N.Y. 1976), there simply are not

adequate assurances of the unity of the

various parties to hold joinder unneces-

sary on that ground. 12 E.P.D. at 5542.

Finally, decisions rejecting the

Claim that employers must be joined in

suits seeking the elimination of discri-

minatory union referral practices are

inapposite. In each such case the en-

ployers had already completely siete up

“a

their right to selectivity when they

agreed to accept those persons dispatch-

ed ow the union and retained no control

over union methods of referral.!? No

case has been found which orders a union

or apprenticeship committee to establish

a hiring hall or adopt other measures

limiting employer selectivity in hiring

in the absence of the affected employers.

17 In Kaplan v. Intern. Alliance of

Theatrical and Stage Employees and Mo-

tion Picture rators, supra, 525 F.2d

, the Court to some extent modi-

fy procedures for operation of a refer-

ral system which were set forth ina

collective bargaining agreement, and

thus not beyond employer control. How-

ever, the order affirmed in Kaplan mere-

ly required that the female plaintiff be

placed on an existing roster which en-

titled photographers to preference in

hiring, without altering the system of

hiring or the degree to which employers

were free to select their own employees.

The only possible prejudice from the

addition of one individual to a pool

to which employers had already agreed

to give preference was potential lack

of qualification, and the evidence in-

dicated that employers considered the

plaintiff qualified. 525 F.2d at 1361.

B. The Union Locals

The role of the union locals in the

subject matter of this action is limited

to the dispatch of beginning apprentices

at the request of employers. Defendant

argues that their presence is required

by Rule 19(a) (1), because they are in a

position to frustrate the effectuation

of any relief by simply ignoring new JATC

procedures and continuing to dispatch

those individuals requested by employers.

Although the extent of the unions‘ con-

tractual obligation to abide by proce-

dures adopted by the JATC is unclear, in

practice it appears that the JATC can

enforce its selection of new apprentices

by refusing to indenture any wrongly

dispatched individual. Thus, to the ex-

tent that employers desire registered

apprentices, the unions would be unable

to satisfy that demand without complying

with the JATC procedures. The relief

E-70

ordered in this action could be frustrat-

ed only to the extent that unregistered

apprentices satisfy employer needs.

With respect to Rule 19(a)(2), the

unions have an interest in the maincen-

ance of an effective apprenticeship and

training program which produces adequate

numbers of competent apprentice and

journeyman members. If, for the reasons

discussed in Part II, A, supra, the de-

cree of the Court were to result in

either a significant decline in the num-

ber of apprentices employed or an in-

crease in unemployment among apprentices,

that interest would be significantly im-

paired. Moreover, on these assumptions

(W.D.N.Y. b ot Here,

18 Contrary to plaintiffs' assertion,

the impairment of union interests goes

beyond the mere dissatisfaction of "“majo-

rity" employees that may be anticipated

in any Title VII case. See Phillips v.

Carborundum [»., 361 ee. 3 » 1020

oy order may

prevent the satisfaction of obligations

to all the unions’ apprentice members

and to the union itself.

E-71

the unions would be entitled to demand

that the JATC fulfill its obligation

under the trust fund agreement to main-

tain an adequate apprenticeship program.

The JATC would then be placed in the

untenable position of choosing between

two mutually exclusive obligations: to

assure the indenturing of women pursuant

to court order, and to maintain the pro-

gram as required by contract.

On the present state of the record

it is impossible to say with certainty

that the relief sought here will reduce

the total number of apprentices employ-

ed or increase unemployment among ap-

prentices, thus requiring joinder under

Rule 19(a) (2), or increase the demand

for unregistered apprentices, thus re-

guiring joinder under Rule 19(a) (1).

However, in light of plaintiffs' alle-

gations and supporting affidavits to the

effect that employer reluctance to hire

E-72

women is the real source of the discri-

mination alleged, the Court concludes

that employer action leading to one or

more of these results is sufficiently

likely as to require joinder of the af-

fected union locals.

IV. JOINDER

Defendant argues that joinder is

barred by failure to name the absent par-

ties in charges filed with the EEOC and

failure to file suit against those par-

ties within 90 days of receiving notice

of right to sue, as required by 42 U.S.C.

§2000e-5(f) (1). Neither of these omis-

sions can prevent joinder in this case.

Title VI's policy of encouraging

conciliation and voluntary settlement in

the first instance has led courts to

formulate a rule that parties not named

in an EEOC charge are not subject to suit.

Thornton v. East Texas Motor Freight, 497

F.2d 416, 423 (6 Cir. 1974); LeBeau v.

E-73

Libby-Owens~-Ford Co., supra, 484 F.2d at

799; Bowe v. Colgate Palmolive Co., 416

F.2d 711, 719 (7 Cir. 1969). This policy

based rule is, however, subject to numer-

ous exceptions in favor of conflicting

policies, two of which are relevant here.

First, since EEOC charges are fre-

quently filed without legal assistance

at an early stage of the proceedings, it

would frustrate the goals of Title VII

to require procedural exactness in stat-

ing the charges. Kaplan v. Intern.

Alliance of Theatricai and Stage Em-

ployees and Motion Picture Machine

Operators, supra, 525 F.2d at 1359.

Thus, charges are to be construed with

the utmost liberality, and parties named

in the factual statement in sufficiently

specific terms to apprise the EEOC of

the source of the alleged discrimination

may subsequently be joined in judicial

proceedings. Id.; Sanchez v. Standard m

E-74

Brands, Inc., 432 F.2d 455, 562-463

(5 Cir. 1970). Here, both plaintiffs

alleged that they were being denied

membership in the “carpenters’ union.”

As respondent, Ms. Eldredge named

“carpenters Local 46, J.A.T.C.," and

Ms. Mazur named "Union 46, Curpenters

Joint Apprenticeship Training Committee.”

These statements were plainly sufficient

to apprise the EEOC of the union's in-

volvement in the alleged discrimination

and thus to support joinder in this ac-

tion.

Second, when application of the pro-

cedural bar would prevent joinder pur-

suant to Rule 19(a), important policies

favoring enforcement of Title VII, judi-

cial economy, and the rights of liti-

gants would be frustrated by an inflex-

ible rule. In such cases, considerations

of "“vnaiformity * * * [and! of the time,

effort and expense invol#* in duplication,

‘.

is ean

SR A: ee

E-75

with the possibility of inconsistent re-

sults” demand that the entire matter be

disposed of in one proceeding. Bremer

v. Saint Louis Southwestern Railroad Co.,

310 F.Supp. 1333, 1340 (E.D.Mo. 1969).

Joinder is thus plainly appropriate

where nc purpose of conciliation could

have been served if the parties had been

named. See Equal Employment Opportunity

Commission v. MacMillan Bloedel Contain-

ers, Inc., 503 F.2d 1086, 1095 (6 Cir.

1974). Several courts have so held in

situations where the absent party was

not alleged to have been responsible

for any discrimination, or would natu-

ally have become involved in any efforts

to conciliate. Grogg v. General Motors

Corp., supra, 12 E.P.D. at 5542; Equal

Employment Opportunity Commission v.

Braswell Motor Freight Lines, Inc., 8

E.P.D. 49714 (N.D.Tex. 1974); Equal Em-

ployment Opportunity Commission v.

s&s Suge . +> * y

E-76

Brotherhood of Painters, Decorators and

Paperhangers, 384 F.Supp. 1264, 1268

(D.S.D. 1974); Hochstadt v. Worcester

Foundation for Experimental Biology, 425

F.Supp. 313, 323 (D.Mass.), aff'd, 545

F.2d 222 (1 Cir. 1976). Here, it may be

noted that no conciliation was attempted;

consequently the failure to name the em-

ployers had no practical effect on this

policy. Such a finding is not necessary

to joinder, however, for numerous courts

have found that the interests represented

by Rule 19 and by enforcement of Title

VII simply outweigh the interest in

conciliation:

“However, we are not con-

vinced that the value of con-

ciliation supersedes the value

of enforcement, to the end that

after a charge has been pro-

cessed before the EEOC and court

action commenced, the district

court is powerless to order

joinder under Rule 19(a) and

is further required to dismiss

the action under the indispens-

able party provisions of Rule

19(b). Where, as here, the

E-77

chartering International was

an obscure party, requiring

court action to determine

whether or not its presence

in the action was necessary

for complete relief among

those already parties, to deny

jcoinder under 19(a) would crip-

ple the rights of the charging

party as well as those of the

party charged.” Evans v.

Sheraton Park Hotel, supra,

503 F.2d at 183.

The absent employers here were

"obscure" parties in the sense that plain-

tiffs apparently did not know them to be a

source of discrimination until long after

the EEOC charges were filed. Even after

the employers’ role was identified, it

was not unreasonable, in the absence of

knowledge of the relationships among the

parties, to assume that complete relief

could be obtained from the JATC alone.

That the absent parties were “obscure"

in this sense has not, however, general-

ly been found to be a prerequisite to

joinder pursuant to Rule 19{a) despite

the failure to name parties before the

—

E-78

EEOC. Macklin v. Spector Freight Systems,

Inc., 478 F.2d 979, 993 n.25 (D.C.Cir.

1973) (dictum); Equal Employment Oppur-

tunity Commission v. McLean Trucking Co.,

525 F.2d 1007, 1012 (6 Cir. 1975) ("in-

dispensable parties joined for purpose

of interpreting collective bargaining

agreement); Held v. Missouri Pacific

Railroad Co., 373 F.Supp. 996, 999 (S.D.

Tex. 1974) (dictum that “indispensable”

parties may be joined); Equal Employ-

ment Opportunity Commission v. Rexall

Drug Co., 9 E.P.D. 49936, at 6931 (E.D.

Mo. 1974); Ostapowicz v. Johnson Bronze

Co., supra, 369 F.Supp. at 531 (dictum) ;

Reyes v. Missouri~Kansas-Texas Railroad

Co., 53 F.R.D. 293, 297 (D.Kan. 1971);

Torockio v. Chamberlain Manufacturing

Co., 51 F.R.D. 517, 519 (W.D.Pa. 1970)

(joinder pursuant to Rule 21 where in-

sufficient facts for Rule 19 joinder);

cme

Bremer v. Saint Louis Southwestern Rail-

road Co., supra, 310 F.Supp. at 1340.

This line of authority disposes of de-

fendant's claim that failure to name the

employers in charges before the EEOC is

fatal to joinder under the circumstances

presented here.

The same policies dispose of defen-

dant's second contention: that joinder

is barred by plaintiffs’ failure to add

the employers and unions within 90 days

of receipt of a ekatt-botiees letter.

Defendant has cited no authority for the

proposition that this statute of limita-

tions will bar joinder of necessary par-

ties pursuant to Rule 19. None of the

decisions dealing with failure to name

parties in EEOC charges, supra, address-

ed this issue, despite the fact that the

statutory period will have run in most

cases by the time a court has determined

E-89

that absent parties must be joined. The

Court concludes that the policies under-

lying Rule 19, which have been held to

override the conflicting Title VII policy

of conciliation, must also override the

policy of finality expressed in this

short limitations period.

Of course, a plaintiff cannot amend

his complaint to allege an entirely new

cause of action and add the parties ne-

cessary thereto after the period of

limitations has passed. See Marlowe v.

Fisher Body, 489 F.2d 1057, 1064 (6 Cir.

1973). But Title VII permits a claimant

to seek judicial relief for "any discri-

mination like or reasonably related to

the allegations of the EECC charge,"

without returning to the agency for ad-

ministrative consideration of the new

charges. Equal Employment Opportunity

Commission v. Pacific Press Publishing

Association, supra, 535 F.2d at 1186;

ey eer ree

Subsahen ‘vs Rosey American nockwel) cor,

482 F.2d 569, 571 (9 Cir, 1973). The a

present charge of maintaining a is tie

minatory referral system differs ‘gignifi-

cantly from the original charge of dis- | ‘

criminatory practices in placement of :

applicants on lists. But the new charge $

does not change the plaintiffs' basic

contention: That discriminatory proce-

dures in admission to defendant's ap-

prenticeship program have drastically

limited the ability of women to enter

the carpentry trade. To anyone familiar

with defendant's procedures, the shift 2

in focus from the "list" to the "job" d

requirement for admission could reason-

ably have been expected to grow out of z

the original charge once information was eo

made available as to the operation of ie

the system. See Gamble v. Birmingham ”

Southern Railroad Co., 514 F.2d 678,

688-689 (5 Cir. 1975); Ostapowicz v.

E-82

Johnson Bronze Co., 541 F.2d 394, 399

(3 Cir. 1976). Thus, the amendment was

within the scope of the original char-

ges, and any parties necessary to the

adjudication thereof may be joined at

this time.

Although there is no procedural bar

to joinder of the absent parties, the

affected employers number in excess of

4500, and more than 60 local unions ap-

pear to be involved. Plaintiffs have

represented that joinder is feasible

without explaining how they intend to

proceed in light of these numbers. The

only alternatives appear to be certifi-

cation of defendant classes or joinder

of contractor associations in lieu of

individual employer members, and Dis-

trict Councils, the Carpenters 46

Northern out: tes Conference Board, or

the International itself in lieu of

union locals. That either of these

E-83

alternatives can provide a feasible and

adequate solution to the problems rais-

ed in Part II, supra, is open to serious

question. The former would raise a host

of questions under Rule 23, while the

latter would raise further questions un-

der Rule 19 as to whether individual em-

ployers and union locals remain indis-

pensable parties despite the joinder of

their representatives. Decision on

these issues must, however, await plain-

tiffs’ selection of a method of joinder

and the submission of information not

presently before the Court, including

the precise number of employers affect-

ed, the number belonging to trade as-

sociations, the nature of those associa-

tions, their ability to represent and

protect the interests of their members,

and the relationships and respective

roles of each of the various levels of

union organization. Absent these facts,

”

E-84

it is impossible to determine whether

joinder may be accomplished as required

by Rule 19(a).

If joinder cannot be accomplished,

the facts discussed in Part III, supra,

will require that the action be dis-

missed pursuant to Rule 19(b). Any re-

lief directed to the JATC alone would

create a substantial possibility of pre-

judice to both employers and unions, as

well as to the JATC itself. No form of

Gecree or protective provision suffi-

cient to avoid or reduce this prejudice

has been subbested, and the Court is aware

of none. Most significantly, there is no

evidence that a judgment rendered in the

absence of these parties would have any

significant effect on the evil complained

of in this action. Plaintiffs' alterna-

tive remedy is, unfortunately, burden-

some and expensive: to pursue in

individual lawsuits those employers

-_ 7 ee! ae eet Se wee hee ee el ae es

+] ; es ¥ ts

E-85

alleged to have discriminated. However,

the Court cannot on this ground alone

countenance any further expenditure of

judicial resources in an action so un-

likely to lead to effective relief.

Plaintiffs have strenuously urged

that joinder be postponed until after

determination on the issue of liability.

Although the Court may have the power to

join parties to participate in the formu-

lation of relief, see United States v.

Chesapeake & Ohio Railway Co., 471 F.2d

582, 592-593 (4 Cir. 1972), cert.denied,

411 U.S. 939 (1973); Pegues v. Missis-

sippi State Employment Service, 57 F.R.D.

102, 105 (N.D.Miss. 1972), that proce-

dure is appropriate only where, as in

United States v. Chesapeake & Ohio Rail-

way Co., supra, the presence of those

parties cannot immediately be determined

to be necessary for complete relief un-

der Rule 19({a)(1). Where, as here, it

E-86

is clear from the outset that effective

relief is impossible in the absence of

the parties in question, it would be a

monumental waste of resources to adjudi-

cate the issue of liability before de-

termining whether those parties can be

joined. Moreover, where the absent par-

ties claim interests that may be affect-

ed by a decree or that may generate

relitigation, it is the exclusion of

those parties from the liability phase

of the litigation that may create the

harms anticipated by Rule 19(a)(2). The

proper course in such a case is plainly

immediate joinder in order that all the

issues may be litigated at one time. See

Pegues v. Mississippi State Employment

Service, supra, 57 F.R.D. at 105.

Accordingly, IT IS HEREBY ORDERED

that defendant's motion to dismiss for

lack of jurisdiction over the subject

matter by reason of failure to exhaust

E-87

state and administrative remedies is

denied.

IT IS HEREBY FURTHER ORDERED that

the employer contributors to the Car-

penters Apprenticeship and Training

Trust Fund for Northern California, and

the local unions which refer apprentices

registered with the defendant JATC to

employment are indispensable parties in

whose absence the action cannot in

equity and good conscience proceed. If

they are not joined within sixty (60)

days of the date of this order, or such

further time as the Court may, on good

cause shown, allow, the action will be

dismissed.

Dated: November 2, 1977.

/s/ Charles B. Renfrew

arle . Renfrew

United States District Judge i

are

‘ Se: % 4 ae Me. te

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.