# Appendix — Local Union 542, International Union of Operating Engineers v. Pennsylvania

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1986
- **Citation:** 474 U.S. 1060

## Text

Supreme Court, U.S,

85-3 28 2) FILED

NOV 14 1006
No. ————
NO, JR,
In THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1985

LOCAL UNION 542, INTERNATIONAL
UNION OF OPERATING ENGINEERS,

4 Petitioner,

COMMONWEALTH OF PENNSYLVANIA
and

RAYMOND WILLIAMS, WILLIE McKAy, MARION J. EADDY,
RANDOLPH HUGHES, JR., AREL BROWNLEE, WILLIAM
BosTICc, KENNETH HOWARD, ALPHA CHRISTMAS,
RONALD RICHARDSON, CLARENCE WINDER, RONALD
CRAWFORD and FRANK GILCHRIST, on their own behalf
and on behalf of all others similarly situated,

Respondents.

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

ROBERT M. WEINBERG *
MICHAEL H. GOTTESMAN
JEREMIAH A. COLLINS
Gary L. SASSO
BREDHOFF & KAISER
1000 Connecticut Ave., N.\W.
Suite 1300
Washington, D.C. 20036
(202) 833-9340
EDWARD D. Foy, JR.
LIEDERBACH, ROSSI, HAHN,
CASEY & Foy
892 Second Street Pike
Richboro, PA 18954
Attorneys for Petitioner
* Counsel of Record

INDEX

Page
Opinions Below

Appendix A—Opinion of the Court of Appeals dated
Pg EERE RINE Dt Sk ERR i Ee, la

Appendix B—Court of Appeals’ Order Amending Opin-
Be I SID BE TID eccentinsanisiesintinnctttmasaanntainasacationenns 12a

Appendix C—District Court’s Post Decree Order #78,
I a snisneestiiadlandhaelinbispaenbiinalbintniern l4a

Appendix D—District Court’s Memorandum dated
od sa clash ebeetiainnsnennnion 16a

Appendix E—District Court’s Post Decree Order #80,
re I Fa I oi en cicecscteenieeincharpaamatianeinisniinans 18a

Pertinent Prior Orders and Opinions

Appendix F—Opinion of the District Court dated No-
vember 30, 1978, 469 F. Supp. 329 _..... FEST OTe mL aeTe 20a

Appendix G—Opinion of the District Court dated No-
vember 7, 1979, as amended April 25, 1980, 488

a I a ee a 205a
Appendix H—District Court’s Judgment and Decree

dated August 8, 1979, 502 F. Supp. 7 ..............0.0 20... 219a
Appendix I—Opinion of the Court of Appeals dated

ge Rg ke ee 240a
Appendix J—Opinion of the District Court dated De-

CE is I Sascha ete icc tice Sks ad cscisseinereans 2438a
Appendix K—District Court’s Judgment and Decree,

as amended August 12, 1968 ........................................ 253a

Judgment Sought To Be Reviewed

Appendix L—Judgment of the Court of Appeals dated

RENE ree Ses ee PEE A 273a

Order Extending Time to File
Petition for Certiorari

Appendix M—Order Extending Time to File Petition

for Certiorari, dated October 3, 1985 .....0.0...000000000..... 275a

la
APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 84-1614

COMMONWEALTH OF PENNSYLVANIA
and

RAYMOND WILLIAMS, WILLIE McKay, MARION J. EADDY,
RANDOLPH HUGHES, JR., AREL BROWNLEE, WILLIAM
BosTIc, KENNETH HOWARD, ALPHA CHRISTMAS, RON-
ALD RICHARDSON, CLARENCE WINDER, RONALD CRAW-
FORD and FRANK GILCHRIST, on their own behalf and
on behalf of all others similarly situated,

* Appellees

LOCAL UNION 542, INTERNATIONAL
UNION OF OPERATING ENGINEERS;

OPERATING ENGINEERS JOINT APPRENTICESHIP AND TRAIN-
ING COMMITTEE OF PHILADELPHIA, EASTERN PENNSYL-
VANIA, and the STATE OF DELAWARE;

GENERAL BUILDING CONTRACTORS ASSOCIATION, INC., CON-
TRACTORS ASSOCIATION OF EASTERN PENNSYLVANIA,
UNITED CONTRACTORS ASSOCIATION, and PENNSYLVANIA
EXCAVATING CONTRACTORS ASSOCIATION, on their own
behalf and on behalf of all others similarly situated,

and

GLASGOW, INC., on its own behalf and on behalf
of all others similarly situated,

Appellants

2a

On Appeal from the United States District Court
for the Eastern District of Pennsylvania

(C.A. No. 71-2698)
Argued June 17, 1985

Before: ADAMS and HUNTER, Circuit Judges, and
FISHER, District Judge *

(Filed July 17, 1985)

EDWARD D. Foy, JR. (argued)

Liederbach, Rossi, Hahn,
Casey & Foy

Richboro, Pennsylvania

Attorney for Appellants

HAROLD I. GOODMAN (argued?
Community Legal Services, Inc.
Philadelphia, Pennsylvania

Attorney for Appellees

OPINION OF THE COURT

PER CURIAM.

This appeal principally involves the applicability of the
Supreme Court’s decision in Firefighters Local Union No.
1784 v. Stotts, 104 S. Ct. 2576 (1984), to an injunctive
decree modifying certain minority referral goals in a
continuing injunction designed to remedy a pattern and
practice of intentional race discrimination. A secondary
issue on appeal concerns the union’s request for “con-
trolled solicitation,’ a mechanism whereby certain union
members are allowed to bypass the hiring hall referral

* Honorable Clarkson S. Fisher, Chief Judge of the United States
District Court for the District of New Jersey, sitting by designation.

3a

system and directly solicit employment. The district
court held Stetts inapplicable to the present controversy,
and denied the request for “controlled solicitation.” We
will affirm the district court’s order in both respects.

I.

This case has an extended history in the federal courts.
It involves a claim that Local 542, International Union
of Operating Engineers, discriminated in the allocation
of engineering jobs in Eastern Pennsylvania and Dela-
ware. In 1978, then District Judge Higginbotham issued
a liability opinion finding a pattern and practice of in-
tentional class-wide racial discrimination in Local 542’s
operation of its hiring hall referral system. Pennsylvania
and Raymond Williams, et al. v. Local Union 542, et al.,
469 F. Supp. 329 (E.D. Pa. 1978) (liability opinion),
aff'd. as to Local 542, 648 F.2d 922 (3d Cir. 1981) (en
banc), separately aff'd. by an equally divided court as to
defendant contractors, 648 F.2d 923 (3d Cir. 1981) (en
banc), rev’d. as to defendant contractors sub nom. Gen-
eral Building Contractors Association v. Pennsylvania,
458 U.S. 375 (1982). The referral system that was the
focus of the suit was based in large part on seniority
considerations—both parties agree that the referral sys-
tem is for all intents and purposes a seniority system.
Judge Higginbotham noted that the system “purports to
create a bona fide seniority system,” 469 F. Supp. at 342,
but concluded that “the referral system was not bona fide
in structure.” 469 F. Supp. at 381.

It is important to stress that Judge Higginbotham
found class-wide intentional race discrimination in the
operation of the referral system itself. This is not a case,
therefore, in which discrimination in some other sphere
is perpetuated by an otherwise legitimate seniority sys-
tem; here the seniority system itself was found to be in-
tentionally discriminatory on a class-wide basis, and vio-
lations were found under both prongs of Title VII—dis-

4a

parate impact and intentional disparate treatment—as
well as under 42 U.S.C. § 1981 (which requires proof of
intentional discrimination). This Court, sitting en banc,
unanimously affirmed this asnect of Judge Higginl®tham’s
decision. 648 F.2d 922 (3d Cir. 1981) (in banc).

An injunctive order was entered in 1979, which in-
cluded certain minority hours and referral goals. See 502
F. Supp. 7 (E.D. Pa. 1979) (Judgment and Decree) ; 488
F. Supp. 988 (E.D. Pa. 1979) (opinion in support of
Judgment and Decree). The injunctive order was also
affirmed by the Court en bane. 648 F.2d 922. In March
1984 plaintiff moved the district court (now Judge Bech-
tle, as the case had been reassigned) to modify certain
of the minority referral goals, because the minority hours
goals, agreed to by the parties, were not being met. The
Union did not respond to this motion, which was granted
in part in Post Decree Order #78, dated July 24, 1984.

On August 1, 1984, Local 542 moved the district court
for reconsideration of Post Decree Order #78, contend-
ing that the Supreme Court’s decision in Stotts required
termination of all the minority referral and hours goals
of the Decree, and urging the court to permit “controlled
solicitation.” (App. at 9-24). On September 25, 1984
Judge Bechtle entered an order, Post Decree Order #80,
in which he held Stotts inapplicable to this case and
found “no compelling reason” to change his mind on the
issue of “controlled solicitation.” (App. at 6). The dis-
trict court therefore denied the motion for reconsidera-
tion, from which Local 542 filed a timely appeai. This
Court has jurisdiction pursuant to 28 U.S.C. § 1292(a)
(1), for Local 542 appeals from a timely motion for re-
consideration of an “interlocutory order . . . modifying
[an] injunction.” 28 U.S.C. § 1292(a) (1).

II.

Resolution of the first issue on appeal requires us to
delineate the scope of the Supreme Court’s recent decision

5a

in Firefighters Local Union No. 1784 v. Stotts, 104 S. Ct.
2576 (1984). The Stotts case involved a modification of
a consent decree. The City of Memphis, in response to a
race discrimination lawsuit, had entered a consent decree
in 1980 requiring it to take affirmative action to increase
the proportion of minority empioyees in its fire depart-
ment. The City agreed to grant backpay and promotions
to certain individuals, to adopt a long-term goal of in-
creasing the percentage of black employees, and to estab-
lish an affirmative action program with specific hiring
and promotion goals. The City, however, admitted no vio-
lations of any laws, and the decree did not address either
the possibility of future layoffs or the existing bona fide
seniority system.

In 1981, layoifs became necessary, and under the senior-
ity system’s last-hired, first-fired policy, it appeared that
much of the affirmative action progress would be undone.
Plaintiff therefore sought relief, and the district court
entered an injunction restraining the City from applying
the seniority layoff policy insofar as it would decrease
the percent of black employees. The Sixth Circuit af-
firmed. Stotts v. Memphis Fire Department, 679 F.2d
541 (6th Cir. 1982).

The Supreme Court, in a 6-3 decision, reversed. The
majority, per Justice White, first rejected the argument
that the court was merely enforcing the decree, stating
that the decree must be read strictly “within its four
corners,” and that the document simply made no mention
of layoffs or seniority implications. 104 S. Ct. at 2586.
The Court reasoned that any plan to depart from the
seniority arrangement, if intended, would have been
made explicit.

More importantly for purposes of the present appeal,
the Court went on to reject the alternative ground for
the injunction—i.e., that the district court had “inherent
authority to modify the decree when . . . layoffs, if car-

6a

ried out as the City proposed, would undermine the af-
firmative action outlined in the decree.” 104 S. Ct. at
2586-7. The Court looked to Title VII as the only pos-
sible source of the court’s authority to modify this de-
cree.' Its Title VII analysis began with § 703(h), the
bona fide seniority system provision. Section 703(h) pro-
vides that it is not unlawful to offer different terms of
employment on the basis of a bona fide seniority system.
The seniority system in Stotts was concededly bona fide.
Thus, the narrow question raised was whether Title VII
authorized a district court to modify a consent decree,
over the objections of a party, in such manner as to over-
ride a bona fide seniority system. Relying on Teamsters
v. United States, 431 U.S. 324 (1977), the Court held
that such relief is unauthorized by Title VII except (1)
where the seniority system is not bona fide, or (2) where
it is necessary to grant competitive seniority to a proven
victim of discrimination in order to make the victim
whole. 104 S. Ct. at 2588.

The Court went on to comment that this result, man-
dated by § 703(h), is also “consistent with the policy
behind § 706(g) of Title VII, which affects the remedies
available in Title VII litigation.” Jd. at 2588-89. That
policy was construed by the Court to limit “make-whole
relief only to those who have been actual victims of il-
legal discrimination.” Jd. at 2589. The Court cited legis-
lative history in which it was stated broadly that “Title
VII does not permit the ordering of racial quotas in busi-
ness or unions.” Jd. at 2589. Most of the history cited,
however, is ambiguous in its definition of an “actual vic-
tim of discrimination.” More importantly, all of this dis-
cussion is framed in terms of the “policy of § 706(g),”
and the actual legal mandate for the Stotts decision is

1It explicitly noted that it was not deciding the scope of the
court’s authority under §$1981 and 1983, because those sections
require proof or admission of intentional discrimination and
neither precondition had been satisfied. 104 S. Ct. 2590 n.16.

7a

§$ 703(h) which is limited to bone. fide seniority systems.
If this section of the opinion were construed expan-
sively to forbid all class-based affirmative relief in
Title VII actions, it would conflict with clear holdings in
eleven Courts of Appeals, including ours, that Title VII
authorizes such relief. See Stotts, 104 S. Ct. at 2606 n.10.
(Blackmun, dissenting). It seems unlikely that the Court
would reverse so many court of appeals decisions sub
silentio, and no subsequent lower court decision has inter-
preted Stotts to have gone so far. Six Circuits have ad-
dressed the issue, and each has read Stotts narrowly to
prohibit courts from modifying consent decrees, entered
without a finding of discrimination, in such manner as
to override bona fide seniority systems. See Kromnick v.
School Dist. of Philadelphia, 739 F.2d 894, 911 (8d Cir.
1984), cert. denied, 105 S. Ct. 782 (1985) ; Turner v. Orr,
759 F.2d 817 (11th Cir. 1985); Diaz v. American Tele-
phone & Telegraph Co., 752 F.2d 1356 (9th Cir. 1985) ;
Vanguards of Cleveland v. City of Cleveland, 753 F.2d
479 (6th Cir. 1985); EEOC v. Local 638 Sheet Metal
Workers’ Int'l Assn., 753 F.2d 1172 (2d Cir. 1985);
Grann v. City of Madison, 738 F.2d 786, 795 n.5 (7th
Cir.), cert. denied, 105 S. Ct. 296 (1984).*

The district court apparently followed the path set out
by the above opinions in finding Stotts inapplicable to this
case. It gave no reasons for its conclusion, however, and
therefore, while we affirm its result we will set forth our
reasons in some detail. Counsel for Local 542 contends

2A number of these cases involved the legality of voluntary
affirmative action programs adopted without a judicial finding of
discrimination, a question expressly left open in Stotts. The
Supreme Court has granted certiorari in Wygant v. Jackson Rd. of
Edue., 746 F.2d 1152 (6th Cir. 1984) to address the legitimacy of
such voluntary programs. 105 S.Ct. 2015 (1985). Resolution of
this question will not affect this case, for our case involves not a
voluntary program but a court order developed to remedy a judicial
finding of intentional discrimination.

8a

that the principles underlying the Stotts decision require
that all referral and hours goals be deleted from the
court’s injunctive decree, insofar as they conflict with
the referral system, and may give preference t6 minori-
ties who have not been shown to be identified victims of
discrimination. This result, however, would require a
radical extension of Stotts for three reasons.

First, as noted, Stotts concerned the modification of a
consent decree, in a situation where there had been no
finding or admission of unlawful discrimination, inten-
tional or otherwise. The case at hand involves an in-
junctive decree, entered after a long trial, designed to
remedy a judicial finding of intentional class-wide dis-
crimination. The district court here carefully tailored
the injunctive order to the violations proved, and made
efforts not to “imping[e] unnecessarily upon the rights of
others.” 488 F. Supp. at 994. The significance of a judi-
cial finding of discrimination in the context of affirma-
tive action is discussed by Justice Powell in Regents of
Univ. of California v. Bakke, 438 U.S. 265, 307-10
(1978). Justice Powell noted that where there has been
a finding of discrimination, affirmative action, which pre-
fers “members of the injured groups” and discriminates
against non-minorities, is nonetheless justified by a sub-
stantial government interest in vindicating the legal
rights of members of the injured groups. 7d. In the
absence of such a finding, a racial quota or goal may
appear to be a preference based simply on race, without
any countervailing justification; where a class-based vio-
lation has been established, however, a racial quota or
goal will sometimes be necessary to remedy the effects of
the violation. See EEOC v. AT&T, 556 F.2d 167, 179-80
(3d Cir. 1977), cert. denied, 438 U.S. 915 (1978).

To accept Local 542’s invitation to extend Stotts to a
case where there has been a judicial finding of intentional
discrimination would create a conflict with prior holdings
of this Court and other Courts of Appeals. As the Sev-

9a

enth Circuit has pointed out, “the Court [in Stotts] did
not hold that non-minority employees can attack a con-
sent decree that remedies the effects of proven discrimi-
nation.” Grann v. City of Madison, 738 F.2d at 795 n.5;
see also EEOC v. Local 638, 753 F.2d at 1186 (distin-
guishing Stotts in part because Stotts did not involve
judicial finding of intentional discrimination) ; N.A.A.C.P.
v. Detroit Police Officers Ass’n, 591 F. Supp. 1194, 1202
(E.D. Mich. 1984) (same).

Second, and perhaps more importantly, Stotts involved
a concededly bona fide seniority system, and thus ad-
dressed the problem of balancing rights of innocent non-
minority employees against minorities suffering the ef-
fects of past discrimination. Here, however, the referral
system, which operates on seniority principles, was found
by the district court to be not bona fide. Indeed, it was
found to be the very mechanism of the intentiona! race
discrimination. A seniority system which is created or
maintained with discriminatory intent is by definition
not bona fide. See Teamsters v. United States, 431 U.S.
at 355-56 (bona fide seniority system is one that “has
been maintained free from any illegal purpose’); see
also Terrell v. U.S. Pipe & Foundry Co., 644 F.2d 1112,
1118-20 (5th Cir. 1981), vacated and remanded on other
grounds, 456 U.S. 955 (1982); Miller v. Continental Can
Co., Inc., 544 F. Supp. 210, 222 (S.D. Ga. 1981).

In Stotts, the district court had ordered relief which
had the effect of overriding the legitimate expectations of
other employees created by a bona fide seniority system.
Here, where the referral system itself was the mechanism
for intentional discrimination, there is no bona fide se-
niority system, and therefore there are no legitimate ex-
pectations based on the referral system. Where a senior-
ity system has been maintained with discriminatory in-
tent, those individuals who gain seniority. within that
system are dilect, intentional beneficiaries of the illegal

10a

discrimination; their “expectations” are therefore illegiti-
mate, and do not warrant protection.

Finally, th's case involves a judicial finding of inten-
tional class-wide race discrimination. As such, liability
was established under both Title VII and 42 U.S.C.
§ 1981. The latter statute, which requires proof of intent,
does not contain a § 706(g), and therefore to the extent
that that section limits remedies in the Title VII content,
wider relief may be available under § 1981 where a show-
ing of intentional discrimination can be made. The Su-
preme Court in Stotts expressly left this question open.
104 S.Ct. at 2590 n.16. At least one court has found that
Stotts does not apply to intentional violations of the
Fourteenth Amendment. N.A.A.C.P. v. Detroit Police
Officers Ass’n, 591 F. Supp. at 1202-03. The court noted
that two weeks after deciding Stotts, the Supreme Court
denied certiorari in a case involving the override of a
seniority system by an injunctive remedy in an equal
protection clause case. Buffalo Teachers Federation v.
Arthur, cert. denied, 104 §.Ct. 3555 (1984); see also
Morgen v. O’Bryant, 671 F.2d 238, 28 (1st Cir. 1982)
(“once there has been a finding of intentional racial dis-
crimination, race-conscious remedies are a constitutionally
valid means of ameliorating the effects of such discrimi-
nation.”), cert. denied, 459 U.S. 827 (1982); but cf.
Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157,
1191 n.387 (5th Cir. 1977) (§ 703(h) provides a defense
to employment discrimination claims brought under
§ 1981 as well as to actions under Title VII), cert. denied,
439 U.S. 1115 (1979).

For the above reasons, then, we hold that the district
court did not err in concluding that Stotts is inapplica-
ble to the present controversy.

Il.

Local 542 also sought reconsideration of the district
court’s refusal to allow it to adopt a method of “con-

lla

trolled solicitation” for Districts 1 and 5, the districts in
which the minority hours ¢. ~Is have not been met. “Con-
trolled solicitation” refers to a program by which a union
member who has been out of work for a continuous pe-
riod of sixty days may solicit employment in the trade on
his own, provided that the union is notified before em-
ployment is commenced. It is provided for in the collec-
tive bargaining agreement, and currently is being im-
plemented in Districts 2, 3, and 4, where all goals have
been met. Once the goals in the decree have been met,
the union apparently is allowed to implement its collec-
tive bargaining agreement procedures.

Because the union had not met the required hours goals
in Districts 1 and 5, it was required to seek special leave
from the court in order to implement “controlled solicita-
tion” in those districts as well. Plaintiff objected to the
union’s proposal of “controlled solicitation” because the
union refused to assume liability for any shortfalls that
might occur during periods that “controlled solicitation”
would be in effect. Thus, plaintiffs argued, the program
would provide a method for “end runs” around the action
plan, for which no one would be liable.

The shortfall from the agreed-upe.. hours goals in Dis-
tricts 1 and 5 has apparently amounted to nearly 150,000
hours of lost work and over two million dollars in lost
wages. The district court determined that permitting con-
trolled solicitation in these districts “would be disruptive
at this time,” but reaffirmed that solicitation efforts per-
missible in Districts 2, 3 and 4 under the existing terms
of the decree could continue. App. at 4-6. We cannot say
that the district court abused its discretion in this regard.

IV.

For the above stated reasons, the order of the district
court will be affirmed.

TO THE CLERK:

Kindly file the foregoing opinion.

12a
APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT *

No. 84-1614

COMMONWEALTH OF PENNSYLVANIA
and

RAYMOND WILLIAMS, WILLIE McKAy, MARION J. EADDY,
RANDOLPH HUGHES, JR., AREL BROWNLEE, WILLIAM
Bostic, KENNETH HOWARD, ALPHA CHRISTMAS, RON-
ALD RICHARDSON, CLARENCE WINDER, RONALD CRAW-
FORD and FRANK GILCHRIST, on their own behalf and
on behalf of all others similarly situated,

- Appellees

LOCAL UNION 542, INTERNATIONAL
UNION OF OPERATING ENGINEERS;

OPERATING ENGINEERS JOINT APPRENTICESHIP AND TRAIN-
ING COMMITTEE OF PHILADELPHIA, EASTERN PENNSYL-
VANIA, and the STATE OF DELAWARE;

GENERAL BUILDING CONTRACTORS ASSOCIATION, INC., CON-
TRACTORS ASSOCIATION OF EASTERN PENNSYLVANIA,
UNITED CONTRACTORS ASSOCIATION, and PENNSYLVANIA
EXCAVATING CONTRACTORS ASSOCIATION, on their own
behalf and on behalf of all others similarly situated,

and

GLASGOW, INC., on its own behalf and on behalf
of all others similarly situated,
Appellants
(C.A. No. 71-2698)

13a

Argued June 17, 1985

Before: ADAMS and HUNTER, Circuit Judges,
and FISHER, District Judge *

ORDER AMENDING OPINION

IT IS ORDERED that the slip opinion of this Court
filed July 17, 1985 be amended as follows:

(1) On page 14, delete the last two sentences of the
first paragraph of Section III, and the first sentence of
the second paragraph of Section ITI.

(2) On page 15, delete the second sentence of the last
paragraph of Section III, and substitute the following
sentence: “The district court determined that permitting
controlled solicitation ‘would be disruptive at this time,’
and reaffirmed that only those solicitation efforts previ-
ously permissible under the decree could continue. App.
at 4-6.”

BY fHE COURT.

/s/ Arlin M. Adams
Circuit Judge
DATED: August 13, 1985

A TRUE Copy:
TESTE:

Clerk of the United States Court of Appeals
for the Third Circuit

* Honorable Clarkson §. Fisher, Chief Judge of the United States
District Court for the District of New Jersey, sitting by designation.

l4a
APPENDIX C

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 71-2698

COMMONWEALTH OF PENNSYLVANIA
and RAYMOND WILLIAMS, et al.

V.

LOCAL 542, INTERNATIONAL UNION
OF OPERATING ENGINEERS, et al.

[Filed July 24, 1984]

POST DECREE ORDER #78

AND NOW, TO WIT, this 24th day of July, 1984, for
the reasons stated in the Memorandum filed this date.
IT IS ORDERED as follows:

1. Defendant Local 542 is to provide District 1 minor-
ities with at least 40% of all referrals for the balance of
Decree Year 4 and all of Decree Year 5.

2. Defendant Local 542 is to provide District 5 minor-
ities with at least 17% of all referrals for the balance of
Decree Year 4 and all of Decree Year 5.

3. The request that controlled solicitation by union
members be permitted in conjunction with or in lieu of
the current referral system is denied.

4. Post Decree Order #71 is modified to the extent it
is inconsistent with this Order.

l5da

5. The referrals and hours levels will be examined at
the conclusion of the next two quarters. If the reported
hours received by minorities are materially above or be-
low the goals for the quarters, counsel for the parties
shall attempt to agree as to what adjustments, if any,
should be made in the referrals quotas. Thereafter, the
levels of referrals quotas will again be considered if the
reported minority hours are materially above or below
the goals for two consecutive quarters, or at different in-
tervals if warranted by unusual circumstances. In the
event of disagreement, any party may apply to the court
for relief.

/s/ Louis C, Bechtle, J.
Loults C. BECHTLE, J.

léa
APPENDIX D

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 71-2698

COMMONWEALTH OF PENNSYLVANIA
and RAYMOND WILLIAMS, et ai.

Vv.

LOCAL 542, INTERNATIONAL UNION
OF OPERATING ENGINEERS, et al.

[Filed July 24, 1984]

MEMORANDUM
BECHTLE, J.

Presently before the court is plaintiffs’ request to in-
crease the percentage of minority referrals for the bal-
ance of Decree Year 4 and all of Decree Year 5. The
court, having considered the arguments advanced by the
parties, determines that the number of reported hours
received by minorities in District 1 and District 5 is
materially below the goals as set forth in the Decree and
that an adjustment is required. A fair and measured
response to the situation requires that defendant Local
542 provide District 1 minorities with 40% of all refer-
rals and District 5 minorities with 17% of all referrals
for the balance of Decree Year 4 and all of Decree Year
5. If the reported hours received by the minorities in
these two Districts are materially above or below the
goals for the next two consecutive quarters counsel for

17a

the parties shall attempt to agree as to what adjustments,
if any, should be made in the referrals quotas. In the
event of disagreement any party may apply to the court
for relief.

The court also finds that it would be disruptive at this
time to permit controlled solicitation by union members.
For this reason the court will not approve or allow con-
trolled solicitation. However, this ruling does not in any
way effect any solicitation efforts which are already per-
missible under the Decree.

Also, to the extent plaintiffs’ allegations are true re-
garding unauthorized solicitation in Districts 2, 3 and 4
(see plaintiffs’ brief in further support of their proposal
to remedy shortfall, footnote 9) it should be noted that
any solicitation other than that previously permitted un-
der the decree will be seen as interference with the meth-
ods set forth in the decree and be a decree violation sub-
ject to appropriate sanctions/remedies.

An appropriate Order will be entered.

/s/ Louis C. Bechtle, J.
Louls C. BECHTLE, J.

18a
APPENDIX E

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 71-2698

COMMONWEALTH OF PENNSYLVANIA
and RAYMOND WILLIAMS, et al.

Vv.

LOCAL 542, INTERNATIONAL UNION
OF OPERATING ENGINEERS, et al.

[Filed Sept. 27, 1984]

POST DECREE ORDER #80

AND NOW, TO WIT, this 27th day of September,
1984, presently before the court is a petition by Local 542
for the court to reconsider Post Decree Order +78 dated
July 24, 1984, and to modify. revise and clarify the Re-
vised Judgment and Decree. The petition will be denied
in part and granted in part as described below.

I. The recent Supreme Court case, Firefighters Local
Union No. 1784 v. Stotts, 104 S.Ct. 2576 (1984), is not
applicable to the instant case and does not require any
modification of the Judgment and Decree, including the
termination of the quota requirements.

II. In Post Decree Order #78 the court found that
. it would be disruptive at this time to permit [any]
controlled solicitation by union members” which was not

“

19a

already permissible under the Decree. The court finds no
compelling reason to change this Order at this time.

III. The defendants have requested a clarification of
the word “referral,” as used in the Decree. After con-
sideration of the purposes of the Decree and in order to
ensure that the number of reported opportunities for
minorities under the Decree is not artificially inflated,
the court shall define the word “referral” as follows:

“Referrals,” as used in the Decree shall include all dis-
patches by the union of minority union members which re-
sult in offers of employment from an employer-contractor,
regardless of whether the minority union member accepts
the offer of employment. “Referral” does not include an
unsuccessful attempt by the union to contact a minority
union member regarding possible employment. A _ recall
by a contractor-employer shall be considered a “referral”
for purposes of the Decree.

SO ORDERED.

/s/ Louis C. Bechtle, J.
Louts C. BECHTLE, J.

20a
APPENDIX F

UNITED STATES DISTRICT COURT
E. D. PENNSYLVANIA
CIVIL DIVISION

Civ. A. No. 71-2698

COMMONWEALTH OF PENNSYLVANIA and RAYMOND WIL-
LIAMS ET AL., on their own behalf and on behalf of all
others similarly situated

v.

LOCAL UNION 542, INTERNATIONAL UNION OF OPERATING
ENGINEERS, OPERATING ENGINEERS JOINT APPRENTICE-
SHIP and TRAINING COMMITTEE of PHILADELPHIA,
EASTERN PENNSYLVANIA and DELAWARE, GENERAL
BUILDING CONTRACTORS ASSOCIATION, INC., CONTRAC-
TORS ASSOCIATION OF EASTERN PENNSYLVANIA, UNITED
CONTRACTORS ASSOCIATION, and PENNSYLVANIA EX-
CAVATING CONTRACTORS ASSOCIATION, on their own
behalf and on behalf of all others similarly situated,
GLASGOW, INC., on its own behali and on behalf of all
others similarly situated.

Nov. 30, 1978

Harold I. Goodman, M. Taylor Aspinwall, Germaine
Ingram, Andrew S. Price, Bruce Endy, Community Le-
gal Services, Philadelphia, Pa., Robert J. Reinstein, Phil-
adelphia, Pa., for plaintiffs Raymond Williams, et al.

2la

Edward G. Beister, Jr., Acting Atty. Gen., D. Bruce
Hanes, Asst. Atty. Gen., Burton D. Morris, Deputy Atty.
Gen., Commonwealth of Pennsylvania, Dept. of Justice,
Harrisburg, Pa., M. Faith Angell, Deputy Atty. Gen.,
Margret E. Anderson, Asst. Atty. Gen., Philadelphia, Pa.,
Thomas J. Oravetz, Deputy Atty. Gen., Harrisburg, Pa.,
for plaintiff Com. of Pennsylvania.

Andrew F. Mimnaugh, Philadelphia, Pa., for unnamed
member of defendant class Barger Const. Co., Inc.

Abraham E. Freedman, Freedman, Borowsky & Lorry,
Philadelphia, Pa., Marvin I. Barish, Marvin Levin, Phil-
adelphia, Pa., for defendants Local 542.

Robert G. Kelly, Jr., Philadelphia, Pa., John J. Me-
Aleese, Jr.. Thomas J. McGoldrick, Bala Cynwyd, Pa.,
for defendants Glasgow, et al.

Nicholas Price, Martin Wald, Schnader, Harrison,
Segal & Lewis, Philadelphia, Pa., for unnamed member
of defendant class United Engineers & Constrs. and
Catalytic.

Arthur R. Littleton, Dennis J. Morikawa, Morgan,
Lewis & Bockius, Philadelphia, Pa., for unnamed mem-
ber of defendant class Flour.

Robert W. Ropp, Bond, Schoeneck & King, Syracuse,
N.Y. for unnamed member of defendant class Bechtel
Corp.

TABLE OF CONTENTS

I, INTRODUCTION
Il. FINDINGS
A. The Hiring System
B. The Philadelphia Plan
C. The Benjamin Franklin Programs I and I]

gggees

22a

II. FrnDINGsS—Continued

D.
E.

Procedural History

The Delays and Contempt Issues Involving

Abraham Freedman, Esquire

The Named Plaintiffs as of Certification

Statistical Evidence

1. Membership Disparities

2. Discrimination in Entry

3. Disparities in Hours and Wages

4. Referrals

. Other Proof

1. Entry Discrimination

2. Individual Testimony

(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(1)

Samuel Long
Willis Fox
Robert Ahmad
John Dent

Elijah Dukes
Charles Iseley
John Dodson
Lloyd Hudson
Duane B. Johnson
George Benjamin
Timothy A. Roundtree
Cleveland Allen

(m) Conclusion

347

348
350
350
351
352
353
355
357
358

360
360
360
361
362
363
363
364
364
365
366
367
368
369

23a

I. Rebuttal

1.

2.

Experts’ Statistical Analysis
a. Labor Pool
b. Features of Entry
c. Hours and Wages
i. Dr. Wachter

ii. Dr. Perl

iii. Dr. Dempster
d. Conclusion
Other Rebuttal of Defendants

J. The Case Against JATC

K. Glasgow, Inc. and the Associations

III. LEGAL CONCLUSIONS

A. Appropriateness of Plaintiffs’ Class: Consid-
erations of Standing and the Requirements of
Rule 23

i.

Adequacy and Standing

2. Rule 23(b)
3.
4

. Motion for Amendment of Plaintiffs’ Class

Subclassing

Definition

B. Substantive Claims

1.

Claims Against the Union
a. Title VII
i. Title VII Jurisdictional Issues
(a) Conciliation
(b) Scope of Suit
ii. The Merits of the Title VII Claim

369
370
370
375
377
377
378
379
380
380
381
384
386

386
387
389
390

391
394
394
394
394
394
395
397

24a

B. Substantive Claims—Continued

(a) Intentional Discrimination
(b) Disparate Impact Discrimina-
tion
b. Section 1981 Claims Against Union
c. Section 1985 (3)

2. Claims Against Associations and Con-

tractors
a. Section 1981
1. The NLRA Cases

2. Civil Rights Cases Rejecting Vi-
carious Employer Liability

3. Cases In Which an Employer or
Employer’s Association Was Held
Liable for Discrimination Arising
From Terms of Contract

4. Doctrine of Kespondeat Superior

(a) Analogies to Civil Rights
Suits Against Municipalities
or Supervisory Personnel

(b) The Application cf the Doc-
trine of Respondeat Superior

b. Employers and Associations Potential
Liability Under § 1985 (3)

C. Appropriateness of the Defendant Class as to
Section 1981 Claims

3
2.
3.

Rule 23 (a)
Rule 23 (b)
Standing

Personal Jurisdiction Over the Defendant
Class

398

399
399
401

401
401
402

403

407
409

409

411

413

414
414
415
417

419

25a
OPINION
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.*
I. INTRODUCTION

This employment discrimination suit was instituted in
1971 by twelve black plaintiffs on behalf of a class of
minority workers involved in or desiring admittance to
the operating engineer trade in Eastern Pennsylvania
and Delaware. Also a named plaintiff is the Common-
wealth of Pennsylvania, suing on behalf of its citizens
and the above-described class. Defendants in this action
are as follows: Local 542 of the International Union of
Operating Engineers; a class assertedly represented by
Glasgow, Inc., consisting potentially of more than 1400
construction contractors and employers receiving refer-
rals through Local 542’s exclusive hiring hall; four con-
struction trade associations which represent the employ-
ers in contract negotiations;' and the Joint Apprentice-
ship Training Committee (“JATC”), an organization
created by Local 542 and the trade associations for the
induction of new operating engineers. This opinion con-
stitutes the findings of fact and conclusions of law rele-
vant to the liability stage of the trial of this massive and
intricate case.

The active claims of plaintiffs’ class include a Title
VII, 42 U.S.C. § 2000e et seq., employment discrimina-
tion claim against all defendants based upon alleged
discrimination in the membership practices of 542, the
operation of its referral system, and the hours and
wages of minority operating engineers. The foundation
of this claim also serves as the basis for a 42 U.S.C.

* United States Circuit Judge sitting by designation.

1 Those trade associations are: Contractors Association of East-
ern Pennsylvania; General Building Contractors Association, Inc.;
Pennsylvania Excavating Contractors Association; and the United
Contractors Association.

26a

§ 1981 claim and a conspiracy claim under 42 U.S.C.
§ 1985(3) against all defendants, an unfair representa-
tion claim under 29 U.S.C. § 158 against Local 542, and
a Title VI discrimination claim against all those of the
defendants who have deprived minority individuals of
the benefits of federally funded construction projects.
Local 542’s function as an exclusive hiring hall in its
geographical jurisdiction is at the center of each of
the above claims; however, plaintiff asserts that the
contractors and associations, having agreed to such a
system in 1961 or thereafter, are co-participants with
the union and cannot be absolved from liability for dis-
crimination in the operation of the hiring hall. Al-
though plaintiffs have frequently characterized their
action as being based on intentional discrimination they
are not limited to this standard particularly in view of
the broad allegations in the complaint. I must therefore
consider plaintiffs’ factual claims in light of the full
range of potential liability under the civil rights statutes
involved.

Of course, a very significant aspect of the instant suit
is its class action status. As originally certified on
March 13, 1972, plaintiff’s class was divided into the
following subclass descriptions:

(a) all minority group members who currently have
the skills, when measured by objective stand-
ards, of at least a journeyman operating engi-
neer and who work, or may work, within the
territorial jurisdiction of defendant Local 542;

(b) all minority group members who are partially
skilled, when measured by objective standards,
to perform operating engineers work and who
work, or may work, within the territorial ju-
risdiction ;

(c) all unskilled minority group members who wish,
or may wish, to acquire skills in the operating

274

engineers trade and who are physically capable
of acquiring such skills and performing operat-
ing engineers work within the territorial juris-
diction of defendant Local 542.

Among a number of threshold issues in this case, I also
have before me a request by plaintiffs to recertify plain-
tiffs’ class as well as arguments against certification of
plaintiffs’ class as now constituted and as proposed by
plaintiffs. These arguments by defendants, and several
unnamed members of the defendant class which this
court has permitted to appear post-trial as “non-par-
ties,” * assert, inter alia, the inadequacy of named plain-
tiffs as class representatives, the lack of standing of
named plaintiffs, and the non-commonality and atypi-
cality of issues, claims and defenses.

Other threshold issues before me now are plaintiffs’
request for recertification of the defendant class so as
to comport with the applicable statutes of limitations,
and the request of non-parties for decertification of the
defendant class of contractors. As originally certified
on March 138, 1972, that defendant class now consists of:

(a) all contractor associations which are, or may
be, parties to a collective bargaining agree-
ment with Local 542, International Union of
Operating Engineers; and

(b) all contractor-employers who are subject to
collective bargaining agreements with Local 542,
International Union of Operating Engineers,
and who, pursuant to such agreements, employ
or will employ operating engineers referred to
them by defendant Local 542.

There are an assortment of objections to certification
of the defendant class including the claimed lack of per-

2 Although notice was provided out of an abundance of caution
to protect the interests of fairness, no unnamed members sought to
intervene in this action.

28a

sonal jurisdiction over the unnamed class defendants,
plaintiffs’ lack of standing to assert claims against a
defendant class and the asserted inappropriateness of
defendant class certification under rule 23(b) (2), F.R.
Civ.P.

For the reasons expressed below I hold that this action
is maintainable as both a plaintiff and defendant class
action, given the modifications as will be set forth. Fur-
thermore, we find the defendant 542, JATC, and the de-
fendant class and associations liable injunctively.

The issue of individual monetary recovery as well as
the possible issue of class composition for purposes of
damage relief should not now be decided but must await
Stage II of this litigation in accordance with this court’s
bifurcation order. The issue of damages, if any, owec
to the plaintiffs who initiated this suit or to any mem:
bers of the purported class involves a separate evidenti.
ary inquiry and a further legal analysis which would not
be appropriate at this stage. The case was purposely)
bifurcated with all parties recognizing that in a variety
of ways, upon a determination of liability, the discover)
and trial of the damage issues could be expedited. I
would be unnecessarily costly to have expanded and made
this litigation even more protracted by considering th:
damage issues prior to the time when the correctness o!
my present findings and judgment on the liability issue:
have been fully subiected to final appellate review. Aftei
a final decree has «en entered on the liability issues, |
will grant a petition under 28 U.S.C. $ 1292(b) certify
ing that an immediate appeal from the order “may mate
rially advance the ultimate termination of the litigatior

”

The facts of the instant case, as detailed below, dem
onstrate the complexity and subtlety of the interrelation
ship of race, collective bargaining, craft unions, the em
ployment process and that ultimate goal—real jobs whic

ee ne, ee eT, ek

29a

offer adequate hourly compensation and reasonably con-
sistent pay checks through the year. Here there are
many contradictions between pronounced policies and
actual practices. Also there are some aspects of viral
nepotism at its worst which had a disproportionate im-
pact against blacks but also affected many whites. Some
of the practices cannot be categorized as exclusively ben-
eficial to all whites or as exclusively harmful to all
blacks. Thus there has to be a careful weighing of the
relative racial impacts of many practices and policies.

Here we have not been confronted with policies which
announce publicly doctrines of racial exclusion or segre-
gation as has occurred in some cases in the nation’s past
where such doctrines were announced either by legisla-
tive fiat or by proclaimed union or corporate policy.
See Griggs v. Duke Power Company, 401 U.S. 424, 91
S.Ct. 849, 28 L.Ed.2d 158 (1971); Brown v. Board of
Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873
(1954); Derrick A. Bell, Jr., Race, Racism and Ameri-
can Law (1973); Sterling D. Spero and Abram L. Har-
ris, The Black Worker (1931, reprint ed. 1968); Her-
bert R. Northrup, Organized Labor and the Negro
(1944); Robert C. Weaver, Negro Labor (1946); H. R.
Northrup et al., Negro Employment in Basic Industry
(1970); Negro Employment in Finance (1970), vol. 2;
Negro Employment in Public Utilities (1970), vol. 3;
Negro Employment in Southern Industry (1970), vol. 4;
Negro Employment in Land and Air Transportation
(1971), vol. 5. See als: House Committee on Education
and Labor, H.R.Rep. No. 718, 89th Cong., 1st sess. 1965;
Herbert Hill, “Racial Inequality in Employment: The
Patterns of Discrimination,” THE ANNALS 357 (Janu-
ary 1965), pp. 30-47. In some instances some of the
union members seemed concerned about increasing the
opportunities for minority members; yet more often than
not there was discrimination on a more sophisticated and
subtle level, even though the consequences could be

30a

almost as devastating as the most crude form of dis:
crimination. At the critical level of viable jobs and equa:
opportunities, there were intentional and persistent ef.
forts to exclude and discourage most of the minoritie:
who, but for their race, would have been considered fo
entry into the union and for the more lucrative jobs.

Of course labor unions and the collective bargaining
process are part of the American democracy. Thi:
process has improved dramatically the options of many
As Professer Archibald Cox has observed:

The purpose and effect of every labor organiza
tion is to eliminate competition in the labor market
Chief Justice Taft’s classic statement observed:

“(Labor unions] were organized out of the ne
cessity of the situation. A single employee wa:
helpless in dealing with an employer. He wa:
dependent ordinarily on his daily wage for th
maintenance of himself and family. If the em
ployer refused to pay him the wages that h
thought fair, he was nevertheless unable t
leave the employ and to resist arbitrary anc
unfair treatment. Union was essential to giv
laborers an opportunity to deal in equality witl
their employer.”

Each bricklayer’s local seeks to control the suppl)
of bricklayers’ services available to contractors with
in its geographical jurisdiction. United Steelworker:
of America controls the supply of labor available t
United States Steel Corporation. In this sense every
union is an avowed monopolist.

Cox, Labor and the Antitrust Laws—A Preliminar
Analysis, 104 U.Pa.L.Rev. 252, 254 (1955) (footnot
omitted).

Similarly, after quoting the above passage, Judge Aldi
sert has recently observed that:

— ( mee BS YH F eee U®

3la

“the very essence of the labor movement, as pro-
tected by the national labor policy, hinges on labor’s
ability to seek monopoly in appropriate spheres

Muko v. Southwestern Pennsylvania Builders and Con-
struction Trades Council, No. 75-979, slip op. at 6 (3d
Cir., August 11, 1978).

Yet is is clear that by the nation’s civil rights laws
there are limits to which labor’s “avowed monopolistic”
powers can be extended. Here the union (with the in-
volvement of the contractors) has gone beyond the “ap-
propriate spheres” of national labor policy and conse-
quently has breached the overriding civil rights laws.
Tragically, blacks and other minorities seeking entry
most often were not aided but instead were deterred by
willful manipulation of the collective bargaining process.
Measured by the actual results, the antidiscriminatory
proclamations have proven to have been mere rhetoric.
During his campaign for election as business manager
Robert Walsh’s platform was “fair play.” Yet, during
his administration viable, equal job options were most
often denied to minorities, and those relatively few
minorities who received the option were seldom granted
the more lucrative long term jobs.

Many explanations are proffered for this despicable
state of affairs. Some assert that the racial disparities
were caused merely by nepotism or union politics. Yet,
while it may seem commendable for fathers to pass on
to their sons and to their other relatives a heritage of
lucrative employment, a union of elected officials all of
one race cannot use their power to implant racially
chauvinistic and discriminatory systems and union power
politics create no special immunity from civil rights law
enforcement. With intensity some employers urge that
they agreed to the exclusive hiring hall system solely
as a matter of economic survival at the end of a de-

32a

structive ten week strike when the union would not com-
promise for any other hiring alternative. Yet economic
pressures, however strong and harmful they might be,
do not create immunity for employers, at least not in
this liability phase.

Finally, it must be emphasized that the economic
stakes here are high. Members of the union could earn
from $5.93 to $12.35 per hour. Some earned more than
$30,000 and a few more than $40,000 per year. By now
the average wage for the actively employed member is in
excess of $15,000 per year. Despite its monopolistic pow-
ers, no one union is required to open its doors fully to
admit everyone who applies—for to do so would reduce
the financial options of the more senior union members.
Nevertheless, a union cannot manipulate the collective
bargaining system in claiming that it is restricting entry
options to protect the general economic interest of its
members while at the same time opening the back doors
manipulatively to permit its special friends, relatives and
others to enter through a racially discriminatory system.
In Local 542, there was extraordinary manipulation of
the process by many individuals who maneuvered the
system for their relatives or their special friends—most
of whom were white. Black veterans who had served
their country with honor and distinction by proficiently
operating engineering equipment during the Vietnam
War and World War II were dissuaded persistently from
applying to the union. Yet the young sons of the busi-
ness manager Robert Walsh could enter the union with
ease: one of Walsh’s sons entered at the age of 18 and
by his second year was earning more than $43,000 per
year. The son of the hiring hall dispatcher at the age
of 18 entered without any prior experience as an operat-
ing engineer’s apprentice or oiler and in violation of the
union rules. This pattern of easy, inappropriate entry
and assignment to better jobs was repeated time and
time again for the special friends of the union. See gen-
erally Plaintiffs’ Schedule On Union Nepotism, Volumes,

33a

I, II and III. Union officials maneuvered the system so
that their friends and relatives achieved entry and bet-
ter jobs while those on the outside of the union power
structure—including both blacks and whites—were de-
terred, delayed or refused union membership and access
to the hiring hall. Though a relatively few blacks ben-
efited, the totality of the union’s conduct demonstrates
that it sought to aid a selfish cause in part by a delib-
erate policy of resistance to equal minority participation
as is shown by the deceptions contained in the defend-
ants’ 1968 Affirmative Action Agreement, discussed be-
low, and by a series of other specific acts which pre-
cluded minorities, mostly blacks, from getting the options
they otherwise might have had.

Il. FINDINGS

A. The Hiring System

An examination of the facts in this case must begin

with an elaboration upon the structure and operation of
Local 542.

In 1961 Local 542 concluded a bargaining agreement
with the defendants Contractors Association of Eastern
Pennsylvania (“CAEP”) and General Building Contrac-
tors Association (“GBCA”) according to which 542 be-
came the exclusive mechanism through which operating
engineers were to be employed. Another association, the
Delaware Construction Association, had agreed to the
exclusive hiring hall earlier in 196i. Prior to 1961 the
negotiating trade associations had resisted efforts to
establish an exclusive hiring hall. Given the reality of a
ten week strike by 542 members and the prospect of
serious adverse economic consequences from a continuing
strike, the CAEP and GBCA agreed to the union’s pro-
posal.*

’ This agreement was negotiated by the CAEP and GBCA on
behalf of its members. Not all employers were members; however,

34a

The hiring hall referral system thus formulated on
paper is essentially the same one as is now embodied in
the collective bargaining agreement. (I am not sug-
gesting that the hiring hall in fact operated as it was
supposed to or that hiring classifications were uniformly
honored.) By the terms of the hiring hall agreement 542
is to maintain lists of operating engineers, or would-be
sngineers, in four basic categories (“groups”) which are
defined by measuring hours of recent construction ex-
perience. When an employer has need of an operating
engineer he will notify 542 and within 24 hours should
receive a referral. The key provisions of the Bargaining
Agreement (“agreement”) are as follows: *

GROUP I

GROUP I shall consist of all those applicants who
are under Group I and who have qualified for same
as of May 1, 1963, and all applicants who have
worked within the geographical area of the Eastern
half of the State of Pennsylvania and the State of
Delaware five thousand (5,000) hours within the
past eight (8) years; or two thousand five hundred
(2,500) hours for the past three (3) years. All
applicants shall be entitled to priority under Group
I who would have qualified for any of the foregoing
classifications were it not for absence due to mili-
tary service, or service as a Union official, or dis-
ability within the provisions of Local 542 Operating
Engineers Welfare Plan, .. .

GROUP I-A
[This classification added in 1968 by amendment]

GROUP 1-A—Shall be reserved for such jobs that
are not physically demanding. This normally would

the defendant class is limited to all employers who have adhered
to the agreement.

4The basic terms appear consistently in the bargaining agree-
ments having a bearing on this case.

35a

be equipment such as compressors, welding machines,
generators, heaters, etc. But recognizing that such or
similar jobs may be physically demanding in certain
instances, the Employer will discuss *h« details of
such or similar jobs with the Union ir order to place
the job in the proper category.

Registration on Group I-A out-of-work list will be
voluntary and will be restricted to those who are fifty
(50) years of age or over, and who have been con-
tinuously in Group I for a period of fifteen (15)
years of more, or those who are physically handi-
capped and who are unable to pursue their normal
occupational classification. . . .

GROUP II

GROUP II shall consist of all those applicants who
qualify for any of the following categories: All ap-
plicants who have worked within the geographical
area of the Eastern half of the State of Pennsylvania
and the State of Delaware twenty-five hundred
(2,500) hours within the past twelve (12) years;
four hundred (400) hours per year during any three
of the past five years; or four hundred (400) hours
during the past year.

GROUP III

GROUP III shall consist of all other applicants for
employment. [Article II, § 2(e).]

According to Article II, § 2(f), the union is to maintain
a separate list for each group. One’s position on the list
depends on the date of his registration certifying that he
is available for work. Under section g the contract pro-
vides that the Group I list is to have priority. After
Group I listees have been placed, Groups I-A, IJ, and III
are to be used. The agreement provides one basic excep-
tion from the requirement to refer according to date of
registration and that is with respect to jobs requiring

36a

special skills. If an employer needs a specially skilled
person, such as a bulldozer operator or a crane operator,
the hiring hall is empowered to select such a person even
if it means bypassing persons on the list ahead of him
not possessing the requisite skills.°

Although the hiring hall constitutes the exclusive refer-
ral system, each employer has the right, based on his
determination of competency, to refuse to employ one
who is referred. If an employer makes such a refusal he
may receive another referral which in turn he can ac-
cept or refuse. Under Art. II, § d, however, selection for
referral shall be made without discrimination.®

As originally constituted, for all purposes of this suit,
the divisions of 542 consisted of the parent body, the A
and B branches, and the C and D branches. A Registered
Apprenticeship Program was also instituted in 1966. The
parent body was to consist of experienced operating engi-
neers. The A branch members were to be unskilled oilers,
beginners in the trade; and B branch members were to be

5 Other restrictions pertaining to referral are the three refusal
rule and the 90 day no-recall rule. An operating engineer who
refuses without excuse an offer of employment three consecutive
times is to be placed at the bottom of his out-of-work list. No em-
ployer is to recall outside the referral system after 90 days of
separation.

6 Prior to May 1, 1971, Art. II, § 2(d), expressly mentioned only
discrimination on grounds of non-membership in the union. The
provision read as follows:

(d) The selection of applicants for referral to jobs shall be
on a non-discriminatory basis and shall not be based on, or in
any way, affected by, Union membership, by-laws, regulations,
constitutional provisions or any other aspect or obligation of
Union membe-°”:p, policies or requirements, except as outlined
in this agreement.

After May 1, 1971, a provision was added:

No employee, or applicant for employment, shall be discrimi-
nated against by reason of race, religion, color, or national
origin. [Art. II, § 1.]

37a

the operators of earth-moving equipment. The C branch
members were to work in yards and shops and D branch
members were surveyors: neither of these two branches
were directly subject to the hiring hall system negotiated
and agreed to by the contractor associations. Registered
Apprentice (RA) entrants were to include those novices,
frequently doing unskilled work as oilers of machinery,
who seek entry into the union’s construction branches.
This entry could be achieved upon attaining the status of
journeyman operator.

Until 1972, A, B, or C branch members could not run
for or hold union office, and only parent body men? were
eligible for appointment as master mechanics, a super-
visory position usually paying relatively high rates. In
1973, however, the A and B branches were eliminated.
Their members were transferred to the parent body. The
D branch was supposedly eliminated by the end of 1975;
however, according to one union exhibit its existence con-
tinued at least until January 2, 1976.8 At the present
time the parent body, C branch and the RA program are
the only divisions of 542.

The registrant program is a classification by which an
operating engineer not eligible for union membership
maintains his referral status. This classification was cre-
ated in 1965 and was initially divided into A (inexperi-
enced) and B (experienced) registrants. That distinc-
tion was theoretically phased out after 1968 because the
A registrants were detracting from the work available
to registered apprentices. Since 1970 a field admission
test and a written test have been required of applicants
for registrant status. Registrants can progress to Group
I status without seeking to join the union. (No evidence
has been presented concerning the precise number of reg-

7“Men” is used here because the record establishes that 542 has
never had women members of the union.

§ U-261.

38a

istrants who might not seek union membership status.)
After achieving 2500 hours, however, a registrant can,
under the contract, be admitted into the union upon
application.

Formal entry into the union may also be achieved,
according to procedure established by Local 542, as de-
tailed below, through union organization of a workforce
of an employer not previously subject to a bargaining
agreement with Local 542. Prior to January 1, 1975,
construction employees who were organized might enter
either A or B branch. Since January 1, 1975 when these
branches were abolished, all such employees are to enter
into the parent body directly. Yard and shop workers
who are organized are to enter C branch and surveyors
are to enter the D branch. Intra-union transfers from A
and B branches to the parent branch after four and three
years respectively are and have been available. Transfers
out of C branch have occurred either without restriction
or after one year of experience in C branch.®

Geographically, Local 542 encompasses Delaware and
Eastern Pennsylvania. Because of the enormous size of
this jurisdiction, the Local is divided into five districts,
each with its own referral lists and hiring hall but all
ultimately under one administration. It appears that the
norma! but not necessarily the absolute practice is for
the work site hiring hall to make referrals based on its
own district’s listings.

The estimated 1400 contractors who have recently en-
gaged in operating engineering work within Local 542’s
wide range may vary considerably in size. Relatively few
are members of the defendant associations.

CAEP’s active members numbered only 109 during the
period 1965-1971, 88 during 1972-73, and 83 during 1974-
75. Defendant GBCA listed its active membership at 104

® Transfers from other locals can also be achieved once a clearance
card is obtained.

39a

for the 1965-1971 period, 99 for 1972-73, and 83 and 74
for 1974 and 1975, respectively. Defendant United Con-
tractors Association (‘““UCA’”) had 28 active members at
the time suit was filed in 1972, and between 1972-75 lost
half of that membership. The remaining defendant asso-
ciation, Pennsylvania Excavating Contractors Association
(“PECA’’), dissolved in 1972; the record is silent as to
its membership. Notably, both UCA and PECA have con-
sistently delegated their negotiating responsibility to
CAEP.

As a result of contracts entered into pursuant to ne-
gotiations with CAEP and GBCA in 1961 and subsequent
negotiations with contractor associations, all participating
contractors have passed on the direct managerial control
of their application process to the hiring hall operated by
Local 542. The contractors did not, however, relinquish
power to affect the union’s operation of the hiring hall,
for the contract terms remained fully capable of enforce-
ment in the event they were violated by those operating
the hiring hall and the contract instituted a grievance pro-
cedure by which an appellate tribunal consisting of an
“Employer Representative, a Union Representative and
an Impartial Chairman appointed jointly by the Employer
and Union . . .” would decide whether a complaining job
applicant was aggrieved “with respect to the functioning
of [the] hiring agreement.” Article II, §2(m). Although
a vast majority of the employers are not and have not
been active members of the defendant associations, the
negotiations conducted by those bodies have established
a standard to which the unaffiliated contractors may con-
form.

The hiring hall system is on its face neutral and pur-
ports to create a bona fide seniority system. Plaintiffs’
allegations of discrimination are not directed against the
hiring hall system per se but against the union’s alleged
intentional refusal to follow their own hiring hall rules,
thus causing intentional discrimination against and a dis-

40a

criminatory adverse impact on minorities. Plaintiffs also
allege discrimination particularly in admission into the
union and admission to the job referral process. This
allegation, although not attacking the hiring hall proce-
dures set forth in the contract, does attack practices
which would render the use of the hiring hall intention-
ally and otherwise discriminatory and contradict its bona
fide seniority appearance. The foundation of this case
rests on the statistical, documentary and testimonial evi-
dence of discriminatory departures from and applications
of the union hiring hall system.

B. The Philadelphia Plan

On September 24, 1965, shortly after Title VII went
into effect, President Lyndon Johnson issued Executive
Order 11,246 prohibiting discrimination by contractors
with federal contracts in excess of $10,000 and requiring
affirmative action to ensure non-discrimination. The De-
partment of Labor and the Office of Federal Contract
Compliance (“OFCC”) have principal responsibility for
the enforcement of this Order.

Since much major construction work is done with at
least partial federal funding, the federal government ex-
pressed its concern that the Order be complied with in
the construction industry in the Philadelphia area. To-
ward the end of 1966 Bennett Stalvey, Director of the
Regional Philadelphia Office of the OFCC, met with offi-
cials of Local 542 and later with officials of the CAEP
and GBCA, advising them that it was the function of his
office to see that the Order was complied with.

At this point, there was a clear disagreement between
the federal government (OFCC), which wanted a higher
percentage of minority individuals on construction jobs,
and the construction industry, which wanted to use its
traditional methods of employment. In the Philadelphia

10 30 Fed. Reg. 12319.

4la

area (Philadelphia, Bucks, Delaware, Chester and Mont-
gomery Counties) this matter took on added significance.
Bennett Stalvey, in the fall of 1967, developed what was
known as the “Philadelphia (Pre-Award) Plan,” under
which the requirements of the Executive Order would be
implemented. A low bidder on a construction project in-
volving certain levels of federal funding would be obliged
by the OFCC to maintain a specific level of minority
representation in his construction workforce.*' The con-
tractors, however, refused to make the specific commit-
ments and hence in the spring of 1968 federal funds were
withheld. Although Stalvey testified that there were sev-
eral instances in which funds were withheld, the record
specifically reveals only one low-bidder contractor-employer
who was to use operating engineers out of 542’s hiring
hall and from whom funds were withheld—Kiewit Sons
Company of Omaha, Nebraska, a company which was to
undertake a major highway construction project in Penn-
sylvania. Kiewit was not at that time a member of any
regional contractor association, although it had been a
member of CAEP by the end of 1967. Stalvey testified,
and I find, that a total of at least $30 million in funds
was withheld from highway construction programs
through the spring of 1968.

A program was then developed which would accommo-
date the union in serving as an exclusive hiring hall and
at the same time assure a substantial minority participa-
tion in the operating engineer trade. After a June, 1968,
meeting in Washington, D.C., among officials of 542,
their international representatives, and OFCC officials,
an “Affirmative Action Program” was executed on July
17, 1968. This program, as explained by Howard Minck-
ler, a CAEP official, specifically included language urged

11 The Secretary of Highways ef the State of Pennsylvania ob-
jected to the demand for a “manning table” asserting, inter alia,
that such a demand contravened civil rights law. This issue is not
now before us.

42a

by the contractor associations expressly making it in lieu
of any other affirmative action plan, i.e., the Philadelphia
Plan. Local 542, UCA, CAEP, and PECA were the origi-
nal parties to this agreement, although by August, 1968,
GBCA became an additional party. On the first page
the agreement states:

The parties to this agreement have made a detailed
analysis of employment of minority group workers
in the classifications covered by this agreement and
have determined that, in the area governed by this
agreement, approximately 650 members of Local 542
are minority group members out of a total member-
ship of 5400. [Emphasis added. ]

The affirmative action thrust of this program was to
establish an apprenticeship program into which minority
members could be recruited and trained. In addition,
there was to be a program for retraining journeymen,
particularly minority journeymen. The federal govern-
ment accordingly approved the program in lieu of the
Philadelphia Plan. Thus federal monies were released and
no money has since been withheld. The statement that
650 (12%) of 5400 members of Local 542 were minority
members was viewed by defendants to be an important
factor in obtaining federal approval of the substitute.
Affirmative Act Program and thereby eliminating com-
pliance with more stringent federal minority manpower
requirements. The “detailed analysis of employment of
minority group workers” by Local 542, CAEP, UCA,
PECA and eventually GBCA was, however, grossly ex-
aggerated and totally in error.

In order to appreciate the significance of the over-
statement of minority members in 542, it seems useful
to outline the history of such inaccuracies. In the early
1960s, Robert Walsh, Business Manager of Local 542,
told the Philadelphia Human Relations Commission that
by his guess the figure was 500 of 5000. In 1966 Local
542 officials Walsh, Cahill and Ciavaglia informed Ben-
nett Stalvey that the number was 800-900 of 5000. Later

43a

~

Minckler in a meeting with Stalvey stated that the num-
ber was “very large.” Based on the figures stated to
Stalvey, the October 27, 1967 copy of the revised Opera-
tional (Philadelphia) Plan lists the minority composition
as stated by the union at a possible 800-900 of 5000. In
a 1967 report to the EEOC the union estimated a figure
of 650 of 5000 stating, inaccurately, that most of its
members *‘including Negroes and Spanish Americans have
permanent employment” and therefore do not use the
referral system. In 1968, Robert Emrick, formerly an
official in the union but at the time coordinator of the
Registered Apprentices!’ program, told EEOC investi-
gator James Nunes that is estimate was 600 blacks in
District I and 50 more in other districts. In that same
year the union wrote to Robert Bartlett, Pennsylvania
Secretary of Highways, that 11-12% of the union mem-
_ bership were minority group members. This served in
part as the basis for Bartlett’s objection to the withhold-
ing of funds in 1968. See note 11 supra.

Finally, by 1969, the stated level of minority represen-
tation began to recede into reality. Staivey was told in
a February 18, 1969 meeting with union officials Robert
Walsh, Homer Dawson, Joseph O’Donoghue and _ their
attorney, Martin Vigderman, that there were 400 mi-
nority members among a total of 6000 members.” By
December of 1970, the union had ascertained that the
number of minority members zs of January 1, 1970 was
259 of a total membership of 6128. This number was
reported to the EEOC by a document dated December 31,
1970, and signed by Robert Walsh and was referred to
in correspondence to the OFCC by Homer Dawson, local
union president, in December of 1971."

12.In a letter from Martin Vigderman, Esq., to Bennett Stalvey,
dated January 8, 1969, the number of minority members was stated
to be about 350 of a total of about 5500 members.

18 Homer Dawson, in a letter to John L. Wilks of the OFCC dated
December 6, 1971, stated that in a 1968 report to the EEOC the

44a

It is not acceptable to describe the repeated gross in-
accuracies as merely incorrect guesses. Those defendants
who signed the Affirmative Action Program agreement
stated that the figure was arrived at after a “detailed
analysis.” It obviously was not. Furthermore, Mr.
Ciavaglia, the union official in charge of the hiring hall,
with the assistance of Mary Kelly, a union employee,
undertook a study in 1969 or 1970 based on records and
their own knowledge of the membership, and concluded
that there were an estimated 200 blacks in District I of
Local 542. The ultimate unionwide count of 259 minority
members as of 1970 was achieved by a similar method,
one which was available throughout the period during
which the inaccuracy was perpetuated, i.e., through “per-
sonal knowledge and identification by the business agents
and officials of the Union and by contacting the last
known employer when not known by the agents.” In
addition to these distortions, 542 failed to include in their
semi-annual reports to the OFCC information on where
and in what capacity minority operating engineers were
employed although such data was required by the Affirma-
tive Action Program Agreement.

While it is conceivable that in one instance the union
could have inadvertently made a significant error in over-
estimating the number of minorities in the union, it is
incredible that errors of this magnitude could have oc-
curred consistently by any mere coincidence. J find, and
the record permits no other plausible inference, that the
repeated overestimation of the number of minority in-
dividuals in the union, the failure to file complete semi-
annual OFCC reports with the prerequisite data, and the
other related activities of the union on this issue of the
“Affirmative Action Program” were part of a deliberate
scheme of Local 542 to deny to the federal government

union expressed the result of a questionnaire on minority member-
ship. The union reported 193 minority members of 2845 responses.
A total of 6000 questionnaires were stated to have been mailed out.

45a

accurate information on the percentage of minority in-
dividuals in 542. This scheme was part of an effort to
have federal funds inappropriately released while at the
same time permitting 542 to keep the minority repre-
sentation in the union at a far lesser level then it other-
wise would have been if the Philadelphia Plan had been
applied. Only a finding of discriminatory intent can ex-
plain this subterfuge. The Philadelphia Plan would have
resulted in a higher number of minority group members
in the union and in the related industry. I find further
that the Philadelphia Plan would have been adopted by
the defendants if the fraud, deception and scheme of
Local 542 had not been pursued by the willful presenta-
tion of substantial overestimates of the number of minor-
ities in the union.

Any argument that, because the union alone had pri-
mary access to the membership data, the contracting as-
sociations CAEP, UCA, PECA, and GBCA were not at
least reckless participants in this scheme, I find to be
devoid of merit and patently incredible. When these same
contractors sought the release of the 30 million dollars
they showed no hesitation in signing the statement that
they “made a detailed analysis of minority group work-
ers....” At the time of this certification, there was no
real suggestion that any of the signatory contractor asso-
ciations had any doubt about the accuracy of the data or
had merely limited knowledge of it; instead, they en-
dorsed it. In this respect their posture is like that of an
accounting firm which has certified that it has counted
petty cash monies or has verified bank statement deposit
records when, in actuality, it has done neither. In the
instant situation, the record reveals a total absence of
concern on their part regarding the accuracy of their
representation to the federal government in seeking the
immediate release of at least 30 million dollars and doubt-
less the release of millions more to follow. The prospect
of deriving such an immediate and substantial financial

46a

benefit from the federal coffers allowed them to become
willing parties to the scheme by capricicusly certifying
“facts” in anticipation of the government’s reliance on
them: Having sought to enrich their members with sub-
stantial profits, it is now too late to ery innocence and
cast the blame elsewhere. These were no innocent prog-
nosticators who were misled by the union’s scheme to give
inaccurate information. Under these circumstances, I
find that these signatory defendant associations are con-
sequently estopped from repudiating their certification
after their members have had the opportunity to compete
for and after many have received the released funds.

C. The Benjamin Franklin Programs I and Il

In 1968 James Longacre, Executive Director of the
Pennsylvania State Council of Operating Engineers (a
private organization), formulated a six-month training
program consisting of on-the-job instruction and class-
room instruction for 100 hard core unemployed malés
from eastern and western Pennsylvania. While there
were both white and black trainees, the majority of the
members were minority individuals. An agreement was
reached between the Council and the Pennsylvania De-
partment of Labor to implement this plan. Local 542 had
some measure of responsibility for final selection of the
participants from eastern Pennsylvania even though (1)
it was not asked to contribute to the program’s funding,
which came from the federal government ($231,135) and
the Commonwealth of Pennsylvania ($542,884.27), and
(2) the Council of Operating Engineers and the Penn-
sylvania Bureau of Employment Security were funda-
mentally responsible for recruitment. Some equipment
was donated by contractors, including Glasgow, Inc., but
most was paid for in reatals from the program’s fund-
ing. None of the associations or contractors were parties
to the agreement or responsible for the Benjamin Frank-
lin I (BFI) endeavor and none received federal funds for
the administration of the program.

47a

The recruitment and selection activities by 542 were
conducted through the JATC and particularly by George
“Al” Holland, a black operating engineer who was a
union business agent. Two minority applicants, Ronald
Richardson and Howard Williams testified that they
were told by Holland at the recruitment stage that upon
successful completion of the BF program they would
obtain steady work. This was repeated during training
and at graduation exercises along with the assurances of
union membership and journeyman’s pay. Even a grad-
uation handout stated that graduates would receive high-
way construction jobs.

Of the 122 original trainees, 81 graduated from BF I.
Fifty eight of these were black, 23 white; of this group
37 blacks and 7 whites were from eastern Pennsylvania.
None of these graduates was given any credit for hours
spent in training. This is a matter of no small signifi-
cance since the number of hours of experience, described
earlier, is supposed to enhance placement in the hiring
hall system. These graduates were placed on the Group
III (lowest priority) out of work list. Although the di-
rector of the Benjamin Franklin Program, Mr. Nygard,
testified that the graduates needed “follow through” (on-
the-job assistance), none was provided. Mr. Walsh testi-
fied that it was his expectation that the graduates would
work in yards, mills, or trucking companies but not in
construction. As will be detailed below, many graduates
received little work opportunity.

Toward the close of 1969, a Benjamin Franklin II
(BF II) program was agreed upon, again at the instance
of Mr. Longacre and with the approval of the Pennsyl-
vania Department of Labor. The same format was used
for recruitment and selection except that a tenth grade
education qualification and screening tests were required
of entrants and the Pennsylvania highway contractors
were themselves required to contribute $80,000 statewide
in cash or equipment as a condition to continued eligibil-

48a

ity for bidding. The contractors formed Construction
Training, Inc. in order to make the financial arrange-
ments. Each contractor was to contribute to Construction
Training, Inc. a base amount of $200 plus a rate of $.04
for each hour of time worked by an operating engineer
or apprentice between March and October 30, 1970.

As with the BF I program the defendants had no part
in formulation of BF II. George Holland did, however,
have major responsibility in the process by which the
union recruited applicants. Holland made statements to
John Henry Owes that he would receive 2500 hours credit,
a parent body book, and future on-the-job assistance if
he graduated. Holland also made similar statements to
Thomas Taylor, particularly that he would become a
journeyman and earn $300 to $400 per week."

The training for BF II took place at the same location
as the BF I training, Resica Falls, Monroe County, Penn-
sylvania. Of the 65 selected, 56 were graduated; of these,
46 were black, 24 from eastern Pennsylvania. Once again
none of the graduates were given time credit, no one re-
ceived a journeyman’s status, and after graduation only
a few minority graduates accumulated a significant num-
ber of hours. In BF II, as in BF I, the associations, con-
tractors and unions did not receive any funding.

The immediate net result of the Benjamin Franklin
Programs was to increase the number and percentage of
minority registrants in Group III status. I find that
many of the BF trainees had been led by the union to
believe they would be put in Group I rather than in
Group III status and thus have the advantage of better
job opportunity. In the years to follow that training,
many though not all would fail to achieve the hours nec-

1 The union never called Holland to testify to refute those claims
even though he was working as an operating engineer during most
of the time on a construction project in this very courthouse and
even though, on occasion, he was a spectator at the trial.

49a

essary to become members of the union or to enter Group
II or Group I. The Benjamin Franklin Programs figure
heavily in the present action because all of the named
plaintiffs are BF graduates."

D. Procedural History

Having outlined briefly the hiring hall system of 542
and having discussed some of the important circum-
stances underlying this suit, particularly the Benjamin
Franklin training programs and the participation of de-
fendants Local 542 and contractor associations in a pro-
gram substituting for the Philadelphia Plan, attention
may meaningfully be directed to the procedural history
of this case,

The first major legal challenges to the alleged discrimi-
nation began with two charges filed before the EEOC,
one by an EEOC Commissioner Vincent T. Ximines on
July 29, 1968, and one by three BF I graduates, Raymond
Williams, Willie McKay and Donald Muchison, on June

The union, associations and contractors were also obligated
as a result of their “Affirmative Action Program” to upgrade their
training opportunities with an emphasis on minority participation.
Altho gh the “Affirmative Action Program” succeeded in diverting
application of the Philadelphia Plan, it did not, even at this basic
level, p ovide the assured attention to minority upgrading. Opera-
tion Stepping Stone, an upgrading project pursuant to the “Affirma-
tive Action Program,” gave minimal attention to the purpose of
minority upgrading. No special efforts were made to notify minor-
ity operators or to dese-»= ‘*.e program as one which was to
emphasize upgrading amo... “ainorities. As to four minority ap-
plicants to the program who did not participate, the record reveals
no explanation. A total of six minorities out of 96 participants in
the two-session operation spent at least some upgrading time. Only
three minority individuals out of 89 completed the program.

% Although certain exhibits containing letters, findings and deci-
sions pertinent to the administrative disposition of this case before
the EEOC were excluded for substantive purposes, they must be
considered purely in addressing the issue of the existence of and
the extent of jurisdiction. These legal issues will be discussed below.

50a

17, 1969. EEOC investigator James Nunes investigated
both complaints. Service of Ximines’ charge upon Local
542 was made on October 3, 1968 and service of Wil-
liams’ charge was received on November 28, 1969.
Ximines’ charge upon Local 542 was made on October 3,
1968 and service of Williams’ charge was received on
November 28, 1969. Ximines’ charge was directed to the
breadth of 542’s procedures:

(a) Respondent discriminates against Negroes in
referrals for jobs.

(b) Respondent discriminates against Negroes by
limiting and classifying its membership in a
manner which deprives Negroes of employment
opportunities.

(c) Respondent discriminantly fails or refuses to ad-
mit Negroes to apprenticeship programs.

(d) By these and other acts, Respondent has dis-
criminated and continues to discriminate against
Negroes because of their race in violation of the
provisions of Sections 703(c) and (d) of the
Act.

The pro se charges by Williams, McKay and Muchison
are identical to one another. They allege discrimination
in the union’s referral practices:

I was recruited into the training program by a
representative of the International Union of Operat-
ing Engineers, Local No. 542 and upon completion of
the training program I was promised employment by
the Union. The training program under the spon-
sorship of the Union ran for a period of six (6)
months. During this time I was trained to operate
the following heavy equipment: Bulldozers, Graders,
Front End Loaders, Back Hoes, Post Hole Drills,
Core Drills, Scrapers, etc. I was graduated as a
qualified operator on the above equipment. Since my

5la

fraduation two weeks ago I have been to the Union
Hall every day to be referred, with no [undeciphera-
ble word] results. I feel that I am being discrimi-
nated against because of my race (Negro) and for
no other reason.

On August 30, 1971, the Philadelphia District Director
of the EEOC, Raiph A. Allen, advised Local 542 in sep-
arate letters of the decisions of the EEOC that reason-
able cause existed to believe (1) that Ximines’ charge
was true and (2) that the charges of Williams, McKay,
and Muchison were true. The three claimants, in the de-
cision in their case, were deemed entitled to receive the
EKEOC’s decision dated August 6, 1971, on the Ximines
charge. The letter of decision on their own case stated
that, as members of the class harmed by the discrimina- -
tion alleged by Ximines, the three individuals were en-
titled to such notice:

The Companion case . . . concerns a charge lodged
against Respondent by an EEOC Commissioner. Pur-
suant to our Procedural Regulations, 29 C.F.R.
1601.25b (June 18, 1970), 35 FR 10005, Charging
Parties will be entitled to receive copies of our de-
cision in [the companion case] both because they are
currently aggrieved by practices found to be unlaw-
ful in that decision, and because they were members
of the class of potential Negro members which was
aggrieved by several of Respondent’s unlawful em-

ployment practices at the time the Commissioner’s
charge was filed.

Right to sue letters dated October 14, 197 1, were sent to
Williams and McKay." Within 30 days thereafter, on
November 8, they and the other named plaintiffs in this
suit filed their class action complaint with the district
court. On January 3, 1972, a class of plaintiffs and de-
fendants was certified, as described above.

17 The record does not make reference to the sending of a right
to sue letter to Muchison.

52a

During the discovery stage which followed there was
an unexpected and very unfortunate development in re-
taliation for the filing of plaintiffs’ suit. On June 19,
1972, Marion Eaddy and John Dent, both named plain-
tiffs, were attacked by white operating engineers in the
union hiring hall offices. Dent’s testimony, which I cred-
ited in my previous opinion at 347 F.Supp. 268, 275-76
(E.D. Pa. 1972), aff'd, No. 72-1901 (3d Cir., May 21,
1973), was particularly graphic. Marion Eaddy had been
hit over the head from behind with a chair. Two men
then continued punching and kicking him as he lay on the
floor. Dent pulled one man away from Eaddy and shouted
for help from the others in the hiring hall who included
the union’s business agent, Mr. Ciavaglia, his assistant,
a C branch agent and twelve to fifteen union members.
Dent himself was then struck over the head with a chair
by a white operating engineer. The police were never
called. The victims were not forewarned or aided by
those witnessing the occurrence. Although Ciavaglia tes-
tified that he did not know the attackers, one of them
had been in his office just a few minutes before.

On the following day the violence increased. Four or
five pickup trucks in each of which were several white
men, some of whom Dent recognized as operating engi-
neers, came to the hiring hall en masse shortly after
working hours. Despite the presence of a policeman,
Dent, Eaddy and Cleveland Allen were beaten by groups
of white operating engineers in front of the hiring hall.
347 F.Supp. at 276-77.

After an extensive examination of the facts and law
this court entered an order enjoining pendente lite Local
542 and all those acting in concert with or on behalf of
Local 542 from interfering in any way with or retaliat-
ing for plaintiffs’ exercise of their federal statutory and
constitutional rights to institute their employment dis-
crimination action.

53a

Following four years of discovery, [ entered an order
bifurcating the trial into two stages: the first on the
issue of liability and the second, if liability was found,
on the issues pertinent to recovery of damages.

E. The Delays and Contempt Issues Involving Abraham
Freedman, Esquire

During the course of the trial which began on January
19, 1976 and continued through June 28, 1977, there were
two other unusual occurrences deserving menticn. Local
542’s counsel, Abraham Freedman, Esquire, was twice
cited for criminal contempt for his courtroom conduct.
73 F.R.D. 551 (E.D. Pa. 1976), aff'd, 552 F.2d 498 (3d
Cir.) (affirming both criminal contempt orders), cert.
denied, 434 U.S. 822, 98 S.Ct. 67, 54 L.Ed.2d 79 (1977) ;
73 F.R.D. 544 (E.D. Pa. 1976) (denial of motion for stay
of action pending Freedman’s appeal of first criminal
contempt order). The first contempt order followed a
lengthy and undirected reading by Mr. Freedman of Ben-
nett Stalvey’s deposition during his cross-examination.
After four transcript pages of such unfocused reading,
plaintiff’s objection was sustained. Mr. Freedman re-
sponded by objecting to the court’s ruling. He stated his
intention further to state his ground for objection. He
was ordered not to do so with the assurance that he
would be the beneficiary of all possible grounds. After
numerous repetitions of the order, 73 F.R.D. at 548-50
(Appendix A), Mr. Freedman, willfully persistent in his
course, was held to be in contempt. Freedman received a
thirty-day sentence which has since been modified to a
$500 fine upon Freedman’s motion for resentencing.

The second contempt order was a result of Mr. Freed-
man’s calculated dilatory tactic to continue reading from
Samuel Long’s work record (in evidence as an exhibit)
despite an order to cease such reading. 73 F.R.D. 551
(E.D. Pa. 1976). For this refusal Mr. Freedman was
fined in the amount of $500.

54a

From the very beginning of this lawsuit Mr. Freed-
man’s tactics of delay and reprehensible conduct were
willfully designed and executed with the intent to ob-
struct and preclude a proper judicial determination of
the real facts of the case. It is my judgment that he
sought to subvert this intensely controversial matter to a
mistrial so that years of investigation and discovery
would have to begin again. Although his conduct was as
reprehensible and as irresponsible as any I have seen
during thirteen years as a trial judge, nevertheless, with
patience and hopefully discernment, I have tried to dis-
associate those tactics from the essential fact finding
process here.

Fortunately, for all the litigants including his clients,
Abraham Freedman was not successful in aborting the
trial process; however, he did succeed in making most
difficult the presentation of those issues which would
have been easy to discern from a fact-finding standpoint
and which could have been ruled on and adjudicated
promptly. As to the more complex matters in the case,
he persistently tried to make it impossible to comprehend
their nuances and to preclude any rational presentation
of the case. By reason of his daily persistent level of
counsel irresponsibility, discovery, trial and adjudication
have extended far beyond any reasonable time span which
any case would warrant—even one involving a most in-
tense vigorously litigated controversy.

Perhaps the tone of the trial can be best conveyed by
the opinion of the Court of Appeals on the two con-
tempi citations. Commonwealth of Pennsylvania v. Lecal
Union 542, 552 F.2d 498 (8d Cir.), cert. denied, 434
U.S. 822, 98 S.Ct. 67, 54 L.Ed.2d 79 (1977). After
evaluating Mr. Freedman’s conduct, the Court of Ap-
peals reviewed cases where similar conduct of non-law-
yers was held to be inexcusable and then the Court noted:

If non-lawyer Seale’s defiance of a judge’s order
was inexcusable, how much more so shou’d be the

55a

conduct of appellant Freedman, a seasoned trial law-
yer. We agree with the Seventh Circuit, and hold
that a trial attorney’s belief that certain action is
necessary te protect the record for appellate review
does not excuse his deliberate defiance of the trial
judge’s explicit and repeated orders. The phrase
“preserving the record for appeal” is not a talisman
that absolves a lawyer from his usua! obligation to
comp'y with a trial judge’s direct orders.

. * * 7

Freedman’s conduct was an affront to the trial
judge’s authority to control the proceedings in his
own courtroom. An attorney who, in deliberate dis-
regard of seven direct and explicit orders by the
trial judge, pursues a course that he determines to
be in the best interests of his client, offends the dig-
nity and authority of the court and thereby obstructs
the administration of justice. United States v. Seale,
461 F.2d 345, 371 (7th Cir. 1972). To hold other-
wise would be to strip trial judges of their power to
supervise the proceedings before them, and to clothe
counsel with the authority to conduct trials in what-
ever manner they deem appropriate. Furthermore,
we note that Freedman’s conduct was obstructive
because it resulted in a wholly unnecessary and not
insignificant delay of the trial. For this reason, too,
we conclude that his conduct arose to the required
level of disruptiveness.

Freedman’s action was intentional, constituted mis-
behavior which caused an actual obstruction of the
administration of justice, and occurred within the
presence of the court.

Freedman concedes that his conduct did not vilify

the judge, and we cannot agree that the judge’s com-
ments demonstrate a bias against Freedman. The

56a

judge’s description of appellant’s conduct was nei-
ther acid nor sarcastic; it was simply accurate. The
trial judge exhibited patience and restraint, and did
his utmost to preserve order and decorum; he did not
engage in wrangling or bickering, and used the sum- —
mary contempt power only as a last resort .
Appellant [Abraham Freedman] mistakes judicial
disapproval for personal pique. A judge who objec-
tively expresses his antipathy toward contumacious
conduct does not thereby disqualify himself from ad-
judicating the contempt under Rule 42(a). Under
the circumstances of this case, we see no need for
another proceeding to adjudicate what one judge has
already witnessed. Summary dispos.-ion, we hold,
was appropriate.

After the contempt citations had been sustained and
on the last day for modification of his thirty day sen-
tence, he filed a petition requesting that he not be sent
to jail—even though the sentence had been affirmed and
no further judicial relief seemed available. I modified
the prison sentence by vacating the imprisonment and
imposing a fine of only $500. This was done-not because
there were any fundamental mitigating factors but solely
because if, at his present age of more than three score
and ten, he has never learned or has now lost totally the
recognition of the standards of permissible conduct for
lawyers, then 30 days in jail would not be a true deter-
rent for the future. Thus the jail sentence was not
eliminated because of any view that it was ever unfair,
for I am still confident that Mr. Freedman’s conduct was
as inexcusable as it was so often disgraceful.

F. The Named Plaintiffs as of Certification

As has been noted all twelve of the named plaintiffs
are graduates of either Benjamin Franklin I or II. Be-
cause of the importance of the characteristics of these
named plaintiffs in determining whether they satisfy

57a

the class action requirements and ruk 23(a), the plain-
tiffs will be described with reference to some basic fea-
tures.

At the time of the certification, on March 138, 1972,
one of the named plaintiffs (Marion Eaddy) was a listee
in Group I, five were in Group II (Randolph Hughes,
William Bostic, Ronald Richardson, Ronald Crawford,
Willie Frank Gilchrist) and the remaining six in Group
III (Raymond Williams, William McKay, Arel Brownlee,
Kenneth Howard, Alpha Christmas, Clarence Winder).

One, Marion Eaddy, a graduate of BF I, did become
a member of Local 542’s parent body. Two of the named
plaintiffs, Randolph Hughes and Alpha Christmas, also
BFI graduates, were applicants to the Joint Apprentice-
ship Training Program, although neither had received a
final disposition of his application. The JATC files of
Hughes and Christmas indicate no disposition but sim-
ply make reference to the Benjamin Franklin program.
All plaintiffs were alleged to have been victims of the
referral practices and practices relating to admission to
Local 542 and discriminatory advancement in their pro-
fession.

The hours worked by named plaintiffs range from
none at all to over 2500 in the period between their BF
graduation and class certification. Three, Raymond
Williams, William McKay and Clarence Winder never
received registrant books, the first and lowest step in
attaining entry to the union.

Although it is clear that the Group III plaintiffs are
different from the Group II and Group I plaintiffs in
terms of their supposed priority in referrals, I find there
is no conflict between such plaintiffs for purposes of try-
ing the legal issues of this suit. Plaintiffs are not attack-
ing the hiring hall system as constituted but rather are
attacking practices which, while forming no part of the
hiring hall system’s stated foundation, nevertheless have
a profound impact on its operation.

58a
G. Statistical Evidence

An important part of plaintiffs’ case lies in its proof
of discrimination in membership in Local 542 and its
proof of discrimination in hours and wages of minority
union members. Plaintiffs’ proof on both issues is based
in part on a statistical probability analysis. See /nter-
national Brotherhood of Teamsters v. United States, 431
U.S. 324, 97 S.Ct. 1843, 52 L.Fd.2d 396 (1977). For
the sake of orderliness we will take the statistical proof
of membership discrimination first.

Plaintiffs’ expert, Dr. Bernard Siskin, is an Associate
Professor at Temple University and Chairman of the
Department of Statistics. He has written numerous
articles and a text book in the field of statistics and has
particular expertise in social statistics. At trial he pre-
sented a number of studies of 542’s composition, ascer-
taining, inter alia, the number and proportion of minor-
ity union members, the pool of minority persons avail-
able for operating engineer work, the number and pro-
portion of minority entries from 1966 to 1975, the num-
bers of minority persons entering the union via the var-
ious available means, and the comparative hours and
wages of minority members. From such studies he was
able to draw conclusions relating to the likelihood of dis-
crimination in the 542 hiring hall system. This case,
like most cases involving statistical proof, involves among
the expert witnesses some evidentiary conflicts which
require the fact finder in turn to make findings of cred-
ibility. Upon balance I find Dr. Siskin’s testimony to be
credible, persuasive and accurate on these subjects and
on the other subjects of his testimony. The testimony of
the other experts who differ does not cause me to repudi-
ate or modify my finding as to Dr. Siskin’s credibility.

1. Membership Disparities

Based on the computer tapes of a “Master List of
Active Members” provided to Dr. Siskin by the union

\
|

59a

(with key punch errors being corrected through the an-
nual pension files), Dr. Siskin determined the union
membership to be 6,051 as of December 31, 1971. This
figure includes the parent body, branches A through D,
and the Registered Apprenticeship enrollees. (Holders
of registrant books are not counted in this tabulation
and are not considered by the union as members.) There
were two hundred and thirty-five black members. Thirty-
three more were members of another minority. Thus the
composition among active members of Local 542 at the
end of 1971 was 3.9% black. When all minorities are
considered, the minority composition of the union was
4.4%. These 1971 percentages are very nearly identical
when pension welfare, and honorary members (inactives)}
are included in the membership definition. The following
table reflects the composition of 542, including pension,
welfare and honorary members, for the years 1966-71:

Number of Percent

Year Membership Minorities Minority
1966 5092 174 3.42
1967 5385 182 3.38
1968 5703 216 3.79
1969 5995 261 4.35
1970 6192 255 4.12
1971 6453 289 4.48
1972 6631 307 4.6
1973 6942 344 5.0
1974 7066 356 5.0
1975 6974 336 4.8

Based on the 1970 census data for the area covered by
Local 542’s jurisdiction, the total population is 7,729,115
of which 888,370 or 11.5% are black and 33,073 or .4%
are members of another minority group. Limiting the
population to males between the ages of 18 to 65, in
order to define more precisely the pool of potential appli-
cants, the figures become 11.0% black and 11.5% minor-
ity. The 11.0% and 11.5% figures are a conservative
statement of the available black or minority labor pool.

60a

This was Dr. Siskin’s conclusion and I agree. Siskin’s
best estimate, however, was 12.7 to 13.4% black and a
total of 13.2 to 18.9% minority, taking into account by
his calculations labor force participation rates, the cen-
sus undercount, education and occupation and disregard-
ing particularly the suggested factors of automobile and
telephone ownership.

Using the conservative 11.0% and 11.5% result, the
membership of Local 542 as of 1971 was grossly dispro-
portionate to the 3.9% black and 4.4% minority per-
centage in the labor pool. The likelihood that such a
disparity would occur by chance is less than 1 in 100
trillion, less than 10°°. Of course, if Siskin’s greater
percentage figures, which I find on a preponderance of
the evidence to be accurate, were used, the disparity
would increase still further. Notably the disparity re-
mained extremely significant as against the conservative
labor pool figures as of 1975 when the minority percent-
age (four years after the initiation of this suit) had
risen to only 4.8%.

2. Discrimination in Entry

In addition to demonstrating this gross disparity,
plaintiffs’ expert, Dr. Siskin, compiled data principally
from union exhibits indicating the ratios of minority
entry into the union (parent, A, B, C, and D branches
and the RA program). During the period 1966-1971,

2601 new members entered 542. Minorities entered at
the following rates:

Blacks Minorities
1966 5.1% 5.5%
1967 2.6% 2.8%
1968 5.8% 5.8%
1969 8.2% 9.8%
1970 3.8% 4.8%

1971 6.8% 8.7%

6la

The total black entries for the union as a whole were
143 or 5.5% over the course of these years and the
total minority number was 166 (6.4%). The direction
of the entry rate (increasing or decreasing) fluctuated
during this period, so it is not possible to deduce with
absolute certainty any definite trend, although in the
last three years before suit (1969-1971) the average
entry rate was 6.4% black and 7.9% minority. The
difference between this average and the conservative
labor pool percentage is statistically significant at less
than 1 in 1,000,000 (7. e., the probability that the differ-
ence can be explained by chance is less than one out of
one million). One the basis of random entry one might
reasonably expect almost 300 minority entries between
1966 and 1971. The difference between this expected
number and the lesser actual number is 1833—44%. By
the end of 1974, the minority membership of Local 542
was 4.3% black and 4.8% minority out of 6725 mem-
bers. As will be developed below, there are no other
factors which would fairly require a finding that this
gross disparity is not the result of discrimination. There
is no sufficient evidence to explain that this disparity
occurred because of any valid job-related qualifications
not possessed either by members of the minority labor
pool or by actual applicants for union membership.

Even after suit, from 1972-1974, the minority entry
ratio into the union is at 7.4%, not far from the 6.4%
pre-suit figure applicable between 1966 and 1971 and
less than the 7.9% rate between 1969 and 1971. In
1972, 5.9% of entrants were minority; in 1973, 8.1%;
in 1974, 8.0%; and in 1975, based on union data after
excluding reinstatement and withdrawals, only 1.5%
(adjusted from 2.8% }."*

In the data given above, C and D branch members were
properly included in assessing the extent of 542’s dis-

% The adjustment is made by subtracting the withdrawals and
reinstatements from the group considered to have entered in 1975.

62a

crimination in part because the C and D members are
indeed union members and because transfers can be
affected from C and D into the parent body construction
trade, thus affecting the general measure of availability
of entry into the construction trade and the employment
prospects of the plaintiff class. (The entry data for the
years 1972-1975 does not include D branch members.")
Plaintiffs’ arguments that Local 542 has discriminated
are indeed based in part on the assertion that the union
maintained primarily white entry methods and primarily
minority entry methods. For purposes ** analyzing this
contention the data on entries into the union will be
broken down (in rounded figures) into branch or divi-
sion.

Parent, A&B Cc & D
Black Minority Black Minority
1966 3.7 3.7 8.4 v.0
1967 2.2 2.7 2.4 2.4
1968 6.0 6.0 6.4 6.4
1969 8.1 8.9 8.7 11.1
1970 5.3 5.3 0 1.9
1971 10.7 12.7 2.0 4.1
The overall average entry rate from 1966-71 is:
Union A&B&P C&D RA
Black 5.5 6.4 4.6 43
Min. 6.4 7.0 6.0 5.0
The overall average entry rate from 1969 to 1971 is:
Union A, B, P c,D RA
Black 6.4 8.3 3.3 6.4
Min. 7.9 9.4 5.8 75

For each of the three year averages (1969-71) the dis-
parity from the minority labor pool percentage is statis-
tically significant (less than a 5% probability of chance

% Union's Exhibit 254 indicates that there were only two D
branch members between 1972 and 1975.

63a

occurrence). For the union as a whole, including C and
D branches, during this three-year period the disparity
is significant such that the likelihood of these overall
figures occurring by chance is less than 1 in 1,000,000.

In the period from 1972 to 1974, 7.4% of entries into
542 were minority members: 8.0% parent body, A, or B;
1.7% C Branch; 18.2% RA.” The very high RA figure
comprises entrants into the four-year program. If in-
stead of examining the number of minority entrants into
the RA program we look to the number of minority
graduates moving from RA status into the operating
branch for this period, the 18.2% figure diminishes to
about 5.9%. This latter percentage is in many respects
the most meaningful in measuring the minority partici-
pation of registered apprentices. Furthermore, as the
minority RA entrants have increased in this period, the
minority C Branch entrants have diminished somewhat,
so that apparent increases in participation by minorities
in the RA program are not absolute increases. If the
RA minority graduate figures are used instead of RA
entry figures, the overall percentage of minority en-
trants into Local 542 during 1972-74 is 4.9% instead
of 7.5%; this makes a decrease since the filing of this
suit in 1971 when the average rate of minority entry
between 1971 and 1966 was 6.4%. Although the RA
program will be discussed separately under the heading
“JATC,” it is clear that a careful evaluation of the
statistical proof reveals continuing discrimination. Thus
as of 1976, two years after A and B branches were
abolished, the Parent Body was 5.8% minority, the C
Branch 3.9%, and the Registered Apprentice Program
(including entrants) 12.7%. Excluding inactives the
percentage of minority union members (counting RA
entrants) at the outset of 1976 was 4.8%. The fluctua-

* This last figure may actually be 18.9% based on calculations
from Plaintiffs’ Exhibit 253(f)-(h) indicating the rate of minority
entry from 1972-74.

64a

tions in methods of entry strongly suggest manipula-
tion. This is corroborated by other proof.

3. Disparities in Hours and Wages

The second major component of plaintiffs’ statistical
proof concerns the proportionality, vel non between the
hours worked and wages received by white members and
by those minorities who were able to become members of
Local 542. Dr. Siskin performed two basic studies in-
quiring into this matter. In the first he compiled from
the union’s Master List of Active Members all the hours
worked by whites and minorities during 1969-71 and
estimated by a standard formula of hours worked in
recent years just who was in Group I, II or III. In the
second, using the Master List he examined the hours
worked and wages obtained during 1972, making corre-
lations to the out-of-work list and the respective operat-
ing branches of 542 so as to compare even more closely
like groups of white and minority workers. Both studies
excluded consideration of C Branch and D Branch and
registrants.

The result of Siskin’s first study based upon health,
welfare and pension records is indicated in the following
table.

Year % White Hours % Minority Hours
1969 96.42 3.58
1970 96.30 3.70
1971 96.38 3.62

When one compares the minority labor pool percentage
(11.5%) to the minority member percentage of hours
worked, the disparity is still greater than that revealed
by the comparison between the minority labor pool and
the 542 operating membership.

Plaintiffs’ first study sought to account for differences
in age, district, branch, seniority, and out-of-work list
status by use of a regression analysis. After accounting

65a

for these factors, Dr. Siskin nevertheless concluded that
white operating engineers in the studied branches worked
109 hours per year longer and at higher rates than
minority members on account of race. Siskin concluded
that the racial disparity was statistically significant and
would not be decreased by the addition of other vari-
ables. This means that minority members received $717
per year less than whites. In addition to this loss, Siskin
conciuded that minorities lost on the average $262 per
year due to maldistribution among branches.

Upon receiving master list data for 1972, including
for the first time exact wage information and group
status, Dr. Siskin repeated his analysis for that year,
excluding from consideration all those individuals on
the list who began during the course of 1972. Siskin
also analyzed in this study the raw wage and hour dif-
ferential among the branches and among out-of-work list-
ings. Once again, only Parent, A, B, and RA branches
unionwide were analyzed:

Group Ave. Frs. Ave. Hrs.
List Whi ; Minority Difference
P I 1799 1592 207
B I 1713 1587 126
B II 1483 1171 312
A —_ 1684 1513 171
RA —_ 1580 1415 165

The average racial difference in wages by branch and
group list unionwide is correspondingly as follows: **

21 The possibility of an interdistrict effect on these differentials
was also explored by analyzing District I according to the same
standards. District I holds 85% of 542 but only about 50% of
white members. Siskin concluded that the District I analysis pro-
duced the “same general result.” P-168, Rpt. 7 at 12. This analysis
produces results reasonably comparable to those for the union
generally: whites of any branch and list group work more hours
than minorities of comparable status. Notably, the rate of pay
differential tctween minority and whites in District i is greater

66a

Ave. Wages Ave. Wages

White Minority Difference
P I $16,312 $15,044 $1,268
B I 14,250 13,566 684
B II 11,489 9,899 1,600
A — 11,512 9,928 1,584
RA — 11,046 9,487 1,559

The average overall disparity unionwide in 1972 hours
and wages is revealed by the following table:

White Minority Difference
Average joe cS eeuar: Pg
Hours 1727 hrs. 1551 hrs. 176 hrs.
Average
Wages $14,718 $13,232 $1,486

After also subjecting the raw 1972 results to a regres-
sion analysis (so as to equalize factors of age, district,
branch, seniority, and group out-of-work list status),
Siskin concluded that whites on the average worked 97.5
hours more than minorities in 1972 and earned $749
more. This is indeed close to the 1969-71 estimated result.
It must be emphasized that the disparity in average hours
worked is not a result of the effects of low priority out-
of-work list group or seniority. The discrepancies accrued
while these factors were equal.

4. Referrals

Closely tied to plaintiffs’ proof of a differential in mi-
nority hours and wages is the proof of an arbitrary sys-
tem of referrals. Siskin’s analysis on this subject was
limited to District I, although in a separate analysis
unionwide clustering of minorities with a limited number
of employers was also shown to exist. First I will detail
the District I study.

for A branch. B branch (Group I), and RA, but the 1972 study
roughly confirms Siskin’s earlier estimate of the differential.

(a

Siskin’s study of the District I referral system involved
an analysis of seventeen out-of-work lists from among the
various groups (five from Group I, one from Group II,
five from Group 1-A, and six oilers and RA lists). The
seventeen lists were the remainder after eliminating all
lists during that period with less than forty names. This
was to assure statistical significance. Each list had been
used for one of any of the months between 1969 and
1971. A rank was then assigned to each person on the
list according to his position. Referrals were counted
based on the first referral date marked in a listee’s work
records. (A referral constituted any attempt to contact
a worker including acceptances, refusals, or failures to
achieve contact so long as noted in work records.) By
computer, seventeen “selection” lists were created reflect-
ing the actual order of referral.

By creating the selection list, Siskin was able to com-
pare actual referral rankings to the work list ranking in
order to determine the coefficient correlating the two lists
positively, negatively or neutrally. The appropriate nu-
merical correlation (the Spearman rank correlation co-
efficient (“r”’)) ranges from “—1” to “+1”. A “+1”
correlation would mean that the two lists are identical;
a “—-1” would mean that they bear a perfect reverse order
correlation; a “0” correlation would mean that the rela-
tionship appears random. Based on Siskin’s analysis the
r correlation coefficients for the seventeen lists are as
follows:

Group I lists
Lis? number r
#4 20
#+ 7 55
#10 52
#13 46
#16 62
Group II

68a

Group I-A
+ 3 cee PL
# 5 .40
#9 37
#12 43
#15 54

RA & Oilers
ose oe
+ 6 38
#+ 8 44
#11 44
#14 .46
#17 45

While all of the lists except list # 2 from Group II were
clearly on the positive correlation side, further analysis
by Siskin revealed that virtually none of the lists reflect-
ing actual referral rankings was significantly similar to
the corresponding out-of-work list.

This conclusion was reached after calculating the “vari-
ance.” In the present context the correlation coefficient
() when squared (7?) measures the variance in selection
rank which is explained by the out-of-work list. The
formula 1-r° measures the variance in selection not ex-
plained by the out-of-work list. Of the seventeen lists
examined, on only one was more than one-third of the
selection rank predictable or explainable based on out-of-
work list rank. On another list, the position on the out-
of-work list explained only .6% of the selection list
ranking.

Rank Percent Percent Variance
Correlation Variance Not Explained

List, Coefficient (r) Explained (r2)___(1-2)
Grp. I-A_

# .22 4.8 95.2

# 5 40 16.0 84.0

#9 37 13.7 86.3

#12 A3 18.5 81.5

#15 54 29.2 70.8
Grp. I

#4 .20 4.0 96.0

# 7 -55 30.3 69.7

69a

#10 .52 27.0 73.0
#13 .46 21.2 78.8
#16 .62 38.4 61.6
Grp. II
# 2 .08 0.6 99.4
Oilers & RA
#1 24 5.8 94.2
# 6 38 14.4 85.6
#8 44 19.4 80.6
#11 44 19.4 90.6
#14 .46 21.2 78.8
#17 45 20.3 79.7

The average for all lists indicates that 82.5% of variance
is the result of factors other than order on the out-of-
work list. Although there exists a possibility that selec-
tions based on skill could theoretically have created dis-
crepancies in selection rank, plaintiffs point out, and I
agree, that the low correlation on the single skill oilers
and RA lists (a correlation very like that for the other
lists) itself tends to disprove the theory that “skills” ex-
plains the variance.”

The next statistical test performed on the seventeen
lists was to determine whether predictability of selections
from out-of-work list ranking increased depending on the
type of list. A table indicating the percent of explained
variance within groups, with and without ranking those
who were not referred at all, is below:

Including Deleting
Group non-referred non-referred
I-A 15.7 Pe VE
I 20.6 21.9
II 0.6 2.0
Oilers & RA 15.8 14.1
17.5 17.6

“It is also noteworthy that the process of making referrals
based on skill was not an absolutely formal one and did not, accord-
ing to Mr. Ciavaglia, the District I dispatcher, arise “that often.”
Tr. 2035. Skill reversals were made by Ciavaglia according to his
memory and work record notations. The work records are a wholly
unreliable source of skill information.

7a

The percentage of explained variance is relatively small.

Siskin prepared yet another chart, an “expectancy
chart,” indicating the probability of selection for persons
listed in respective quintiles of each out-of-work list:

Percentage Probability of Selection Order
Compared to Work List Order

Percent Selected in Quintile of Selection List
Ist 2nd 8rd 4th 5th

Quintile Ist 240% 240% 17.8% 17.5% 166% 100
on out- 2nd = 29.0 28.3 15.5 15.1 12.1 100
of-work 3rd = 32.2 28.9 17.2 12.6 9.3 100
list 4th 14.0 18.7 34.1 17.4 15.8 100

a 2 Dae ee ee
100 = 100-100 100100

As can readily be seen the probability of selection is not
increased by being in the first or even second quintile on
the out-of-work list, although someone in the fifth quin-
tile of the out-of-work list is not at all likely to be se-
lected among the first or second selection list quintiles.
While this analysis in itself does not seek to identify race
as the factor creating the lack of correlation, it confirms
that the out-of-work list ranking is simply not the prin-
cipal basis for selection. This corroborates plaintiffs’
claims of discrimination in the sense that it proves there
is much room for arbitrary and standardless selection.
When combined with the other statistical disparities con-
sidering the race factor directly, this correlation study
aids the inference of discrimination.

Corroborative of the above data is the calculation of
data indicating clustering of minority workers referred
through the hiring hall system of Local 542. For the
period 1969-1971, Dr. Siskin examined union pension
records for all districts and determined that 69.6% of
the 1488 employers reporting hours for the period re-
ported no minority hours at all. The breakdown by years
is as follows:

Tla

Active Firms Percent
Firms Reporting Reporting
Reporting No Minority No Minority
Year Hours Hours Hours
1969 1034 773 74.8
1970 1061 762 71.8
1971 1035 757 73.1

Twenty-three employers, according to Siskin, employed
minorities during the three-year period as at least 10%
of their total hiring hall employees. These companies
were all in District I. They accounted for 32.41% of all
minority hours in that district but only 5.96% of total
District I h

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1046%3A2. Public record. Not legal advice.