# Appendix — Carpenters 46 Northern California Counties Joint Apprenticeship and Training Committee and Training Board v. Linda Eldredge > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_2084%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 - **Citation:** 459 U.S. 917 ## Text =] ’ 5 *, 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 we 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. I 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 District of ae eine tong si eo a r \s * ; 2 ~ Jae Ae sme f; os . d " as a ay x > 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 See ee 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 - U #43) Cid Steel. eee es eer 2 ewe a 2 > Pe ee : "> A-4 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 3 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. ae <> A - ive in $ ’ & oR ee NP I ee ee Sem Sagi ences i ka) ATL ERD ee ae | in 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. II 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 Metis 5 >t es O-* . oie s es" 7 tee 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 oe. fie’ et oe A ee oy 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. PT KIRK ; ne ; ae ‘ ~ a 3 4°. mo *% A-11 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. ; 5 p39 a a R > ki $ oi my ma LP a + ha Fee ~~ «Va x 4,5 ae 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. | ‘ aE ae © te / 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 Bor es. Be Secreta. tee. eee ee ee Yi awe i vg yh _ ‘a omy . ae . - d ¥ gt $ . * 4 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 2 eo od . ¥ be a 2 | 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 3 “1 al, : . - iis wt c-1 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. \ } Bas oe i SOUS ie 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 -" Ar a 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 é ¢ a i é * ey jac) eae = ‘ : Nr iy * p \ ot a t - Pan cbt os > wy “2 2 aud a. Cy a! dak ae OP he | a A ae a ee rt 4 ee a a Sig AE aca D-4 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. ms ett: ‘ +3 BI TED Ae: Hr eN ark bP a” rm 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 se a: fr wale oe oe, ey ee ey A 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 4 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. . oe | ‘ ie, oe Me ‘ ' of Daa ey «oe . .. , *; : - 2 Ae “4 : ‘ f. ¥y ~ tte: : w Tae ‘ aS <> 2 ota ee. ose, re ee - > abet £ - Te a few Ne =o ae ay - ote, tn eee D-10 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 fs 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 ‘ 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. {4 ¢ a. 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 as . Sei : ~ 4 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 t 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 5. — s,s ; Pee ae On ae nd ae =, > t By: jars iets : ? pi a ; = = eR 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. wy os se 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 a ae - 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- 2 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 ) 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. Y ayia 4 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 zn aed * - men ge. Bs A ae eae Woee. rN eae ie \ha |) AS) AME 5 Ms vas aie wy OPFLTS iS iy) = Yep) ' - 4 A armel \\ ud : et " : ; : At Aa waa ; 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 i i a’ . ‘ ; us , 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 = ya 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 oss ee te. ee Be A: Spe ke rae eee ty 2 eee te Pik. = 4 Set : - aes * — > 4 w ,* Z oe eet yw vad ‘ 7 eae 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 register, enter into an apprenticeship 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 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 register by anything but routine appli- 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 & 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 Le ‘ 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) 2 * 2 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 —, - bt 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 ou 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 M 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 — ® es 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 ye E-37 4 4 d 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. So 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- a ¥ 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 : . Dy ee, ‘ ins a. ly he, cos - hg a. ; My A Beer ta ee cers ¥ ¥8 Fi “x : 5 ESE Z 2 ie ee Pl St See Dae ee ee me Oe ee ce See Te ee 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. a 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 Pe ka he a ¥4 y ee : ob Se eae PMs «* 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 oy ; \ 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 Se : n - 7 v , + > Z a 2 et pe Are ¢ J “ey * 4 7 @hth . ‘ bi Pi, ods 0 Sitka ute ver oe Re ae Ser 1) |. eel deta’: 2 ae 7 - ys 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 be 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 ‘* « rs 4" i % o 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 ee 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 , 5 w -—- | - Zz. a “a { - va. 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 * 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); - ad a Z 7] 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 4 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 4 nd a : % a . -_ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_2084%3A2. Public record. Not legal advice.