Appendix — International Brotherhood of Electrical Workers, Local No. 38 v. United States

‘

__which_a labor dispute would hinder or obstruct commerce

's'

oe

te 7 rea ae

"place éutside thereof; or within the Distriet of Columbia,

or a possession of the. United States: or between points jn

the same State but thr otigh, a point outside thereof.

(h) The term ‘industry affecting commerce”’ meahs

any activity, business, or: indystry in commerce or in

or the free flow of commerce and includes any activity or

industry “affegting commerce” within the meaning of thé

Labpr- -Management Reporting and Disclosure Act of 1959.- -

(i) The term “State” chilies a State of the United -

States, the District. of Columbia, Puerto .Rico, the Virgin

Islands, American Samoa, Gu am, Wake ‘Tsland, the Canal

Zoné. and Outer Continental Shelf lands defined in the

Outer Continental Sheif Lands Act. ian 88-352,

"Title VIL, § 701, Juily.2,-1964, 78-Stat: 253; Pub.L. 89-554, °

8 8(a), ‘Son 6. 1966, 80 St at. 662. 4

~ § 2000e—2. Unlaw ful employnient pfactices--Employer

practices.

“| a) It‘shall be dn unlawful employment practic’ for

an employer— é =

(1) to fail or r refuse to hire oto 6 discharge any

individual, or otherwige to “discriminate aga ainst any

individual with respect to his .compensatiom, terms,

such ae race, color, religion, sex, on national

ak a oy i - ,

ey to. oe sciregate, or dliiceity: his ables

= in any way which would deprive or tend to deprive

a Wf individual of employment opportunities or other-

~, ‘wisd adversely affect his status as, an. ‘employee, be-

cause*of such ihdividual’s s race, color, religion, SeX, OF

national or _ :

8

a

'—-conditions;-or privileges of employment, because of ——

a 0" x - e ‘

+

- Employment agency practices.

(b). It shall be an unlawful employment. practice for

_ an employment agency, to: fail. or refuse ‘to refer for emy

ployment, or’ sierwise to discriminate against, any ip-

divfdual because of his race, color, religion, sex, or na-

tional origin, or. to classify or refer for e mploymeht any,

-individual on the basis of his race, color, ‘religion, sex, or

~

national origin. Co ee ee oe

.

Labor. organization practices.

(ec) It Shall bean unlawiul Paeeey ment practicé for

a labor orgahization— — ean ‘

by

(1) “to exelude or’ ‘to expel ty om its member-

ship, or otherwise to discriminate against, any indi-

vidual because of his race, color, religion, sex, or

. national origin; |

(2) to limit, segregate, or on its member-

ship, or’ to ‘classify or fail or refuse to refer for em-

. ployment ° ‘any individua 1, in any way which ‘would

deprive’ or tend to ‘deprive any individual of employ-

ment. opportunities, or would limit such employment

opportiinities or otherwise adversely affect his status

as an employee or as an applicant for employment,

~ because: of | such individual’ s race, color, religion, sex,

or national origin; or

(3) to cause or dteupst to cause.an employer ‘to

discriminate against an individual in violation of this

section. — %

Training progra nis.

(a) It shall be an unlawful employment pr: actice for

any employer, labor or ganization, of joint labor-manage-

‘ment committee controlling apprenticeship or other train-

ing or retraining, including on-the- -job training ‘programs

ae

2 . -

to discriminate against any individual because of his race,

color, religion, sex,-or ni tional origin in admission to, or

employment in, any program. established to provide’ aap

prenticeship or other training.

tees tithe personel qt ified on aasis

of religion, sexy or national Orig, educational in: sti= *

tutions with: Nersonne I for partic ular religion.

(ew) Notwithstanding any other provision of this sub- .

chapter, (1) it shall’ not: be an unkawfyl employment

practice for an employer to hire and: emplay .employees, .

for an employment agency to classify, or, refer for em- |

ployment anys individu: il, for a laber organization to

classify. its a, or to classily or refer for employ-

ement any individu: or for am employer, labor organi-

2ation, ar joint labor-mani gement committee controlling =.

apprenticeship or other training or re- training programs

to admit or employ any individual in any such program,

on the basis of his religion, sex, or national origin in those

certain instances where religion, sex, or national origin is

a bona fide occupational qualification reasonably neces-

sary to the normal opet ration of that particular business

or enterpr ise. and. (2) it shall not be an-unlawtul. ‘emptoy-.

ment practice for-a school, college, university, Oe eer

__educational.institution or institution of learning to hire _

- and employ employees‘ of a particular religion if such

school, college, university, or other educational institu-

_tion or, institution of ‘learning is. in whole 6r in.substan-

tial part. owned, supported, controlled, or managed by a

particular religion or by a particular religious corpora-

tion. association. or society, or if the curriculum of such.

school; college, university. or other educational institution

or institution of learning is. directed toward the propa-

gation of a particular religion.

a

°

7 — ee ee

° ba \ . . ; ; . e ; * *

Members of Communist Party or Communist-action or.

Communist:front organizations. ce

(fF) As used in.this subchapter, the phrase ‘unlaw-

ful unlowsie practice” shafl not be deemed to include,

any action or measure taken by an’ employer, labor or-

~

——panization, jot labor- -management committce, or em-—

ployment agency with’ respect to an individual who is a

‘member of the Communist Party of the United States or

of any other Organization required to register as a Com-"

munist-action or Communist-front organization by_ final

order of the Subversive Activities Control Board pur-

suant to-:the Subversive Activities Control] Act..of 1950.

.

Preferential treatment ‘not to be granted on account of

.

e. visting. number or percentag : imbalance:

“(j) Nothing contained in this subchapter shall be in-

ter preted to require any employer, employment agency.

labor organization, or joint labor-management comimit-

tec subject to this subchapter to grant pr eferential treat-

ment to any individual or to any group because of the

race, color, religion, sex, or national origin, of such in-

dividual or group on account of an imbalance which may

exist - with respect to the total number or percentage of |

persons of any race, color, religion, sex, or national orjgin

employed by any-employer,referred-or classifjed tor-em-———_—-——

r

mlepiaut by any employment agency or labor organiza-

tion, admitted to membership or classified by any -labor

organization. or admitted to, or employed in; any ap-

prenticeship ‘or other training program, in comparisen

with the total number or’ percentage of persons of such

race, color, religion, sex. or national origin in.any com-

munity: State, section or other area. or in the Available

work for ce in any AE oah State, section, or other area.

Pub.L. 88/352, Title VU. $ 703, July x2 2. 1964. 78 Stat.

(255.

a

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Ga

°

pee.

or nee 8 ce

§ 2000e-—6. Civil actions by the Attorney General—Com-

plaint.

(a) Whenever the Attorney General has ote

cause to believe that any person or group of persons is en-

gaged in a, pattern or practice of resistance to the full en-.

ate -joyment-of_any-of the-rights secured. by this -subchapter,

and that the pattern or practice is‘of such a‘nature and ‘is

intended to deny the full exercise.oi the rights herein de-

scribed, the Attorney General’ may bring a civil action. in

~ the ‘appropriate district. court of the United States by filing

with it a complaint (1) signed by him (or in his absence

the Acting Attorney Geng¢ral), (2) setting forth faets per-

faining to such pattefn or practice, and (3) requesting

such relief, including an application for a permanent or

temporary injunction, restraining order or other order

against the yerson or persons responsible ‘fc for such pat-_

' tern or practice, ashe deems-necessary y, to insure the full

————

enjoyment of the rights heréin described.

, videos

Jurisdiction; three-judge -district court for cases of. gen-

-eral public. importance; hearing, determination, ex-

peditionr of action, review by Supreme Court; single-

judge district court; hearing, determination, gai

tion of action.

(b) The ‘district courts of the United States shall

have and shall exercise jurisdiction of proceedings insti-

tuted pursuant’ to this section, and in any such proceed-

ing the Attor ney General may file with the clerk of such

court a request that a court of three judges be convened

‘to hear and deter mine the case. Such request by the At-

torney General shall be accompanied by a certificate that,

‘in his opinion, the case is of general public importance. A

copy of the certificate and request for ia’ three:judge court .

shall be immediately furnished by such clerk to the.chief

* *

9°

: judge of thé circuit (or in his abgence, the presiding cir-

- cuit judge ‘of the circuit} in which the case is pending. .

Upon receipt of such request it shall he the duty of the |

chief judge of the circuit or the presiding ‘circuit judge,

as the case may be, to designate immediately three judges .

in such circuit, of whom at least one shall be~ circuit

judge and another of whom shall be a district judge of —

the court in which the: proceeding was ‘instituted, to hear

and determine such case, and it, shall be the duty, of the —

- judges’so designated to assign the case for hearing at the

earliest practicable date, to participate in the hearing and

detérmination thereof, and,to cause the case to be in every

way pis

court will lie to the Supreme Court.

In the event the -Attorney General fails to file suck a

- yequest in any such proceeding, it shall be the duty of the

chief judge ofthe district (or in his absencef the acting

chief judge) in whéch the case ‘is pending immediately, to

designate a judge in guch district to-hear and determine

‘the case. In: the event that no udge. in the district is avail-*

able to Kear and determine the case, the chief: judge of

the district, or-the acting chief. judge, as the case ma be,”

shall certify this fact to the chiéf judge of the circuit (or

in his absence, the acting chief judge) who shall then

edited. An appeal from the final = of’such :

designate a district Ouecircuit judge of the circuit to hear

_and deterynine the case.

It sKall be. the duty of the ‘inline’ designated pur suant

to this section.to assign the case for hearing at the earliest

practicable date and. to cause the case to be in every way

expedited. .(Pub.L. 88— 352, Title VI, § 707, July 2, 1964,

‘78 Stat. 261.)°. os | .

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é => er.

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ee ee 7 a 10 oh

‘ APPENDIX B.

( woe, e OPINION OF THE DISTRICT COURT.

7 : UNITED STATES DISTRICT COURT

. NorTHERN DiIstTRICT OF Onto’ -

. Os ; ee Kastern Division.

\ " es

Gil Actin No. C 67-575. -

rc e

se

“ UNT r ED ST ATES OF AME RICA by RAMSEY CLARK,

ante? ee Attor ney Gener val,

aan , Plaintiff,

oe

INTERNATIONAL BROTHERHOOD OF ELECTRICAL -

_ WORKERS, LOCAL NO. 38, q

.ELECTRICAL JOINT; APPRENTICESHIP AND _

TRAINING COMMITTEE, -

.

Defendants.

iat

“™ MEMORANDUM. -—

| GREEN, a

On. August 8, 1967 the United States instituted this

| action under Title VII of the Civil Rights Act of 1964, 42

—ES. C$ 26000 through 2000-15, against the Interna-

tional Broth@rhoed of-Electrical Workers, Local No. 38

(hereinafter referred |to as Local 38) and its Electrical

Joint Apprenticeship nd Training. Committee (herein-

alter referred to as EJAC). The complaint alleges that

the said defandants have engagéd and are engaging in, a |

_ pattern and practice of resistance to the full enjoyment

: by Negroes oftheir rights to equal ‘employment opportuni- -

ties.

“-

‘ ee >

“HW:

As to the defendant Local 38, ‘the complaint alleges ,

discrimination in three major areas:

1) Journeyman Membership

It is alleged that Local 38 has. refuséd to aaa

Negr oes to ipsa come membership i in: union.

*s

It 3 is alleged that. Pong 38 ise ‘Shae to yee

Negroes for employment on the same: basis as white —

applicants and_has .given diseriniinatory priority in*

work referrals to members of Local 38.

3): Contractor Affiliation a

x It is alleged that Local 38 has refused ‘to. enter

‘into collective bargaining agreements with Negro

electrical contractors:on the same B ace and con-

ditions offered to white acai contractors.

As to the defendant EJAC the complaint alleges:

; ‘ That EJAC has purgued a policy and practiee of

discrimination against Negre applicants for admission -

to the unfon’s apprenticeship program becausé of |

their race. .

The Civil Rights Ai of 1964, 42 U.S.C. § 20000-2(c),

declares, that it shall be an unlawful employ went ——

_ for a labor organization:

— (1) to exclude i ._. or otherwise to discriminate

- against, any individual because of his race...

( 2): to limit, segregate, or classify its. member- |

ship, or’ to classify or fail or refuse to refer for employ- °

* ment any’ individual in any way which would

deprive or tend-to deprive any individual of employ-

ment opportunities or would limit such employment

opportunities or otherwise adversely, affect his status -

as an employee or as an applicant for employ ment,

because of such individual’s race . .

ae:

oa re ree ne

es ‘ ont cat

The Act further declares, 42 U.S.C. § 2000e-2%d), that it

shall be’ an unlawful employment practice for any joint

ae committee controlling apprenticeship:

Soe

. to distr iminate against any individual because of

is ‘race . . .. in admission to or employment in, any:

“pr ‘ooram established to provide apprMticeship.

The authority. of the United ‘States. to dying = for

alleged violations of the Act is derived from Section 707(a)

thereof; 42 Uz ».C. $ 2000e- 6{a): ae Fe et. i

Ww henever the Attorney General has; reasonable

cause to believé that any person or group of persons is ‘ _ /

engaged ‘in a pattern or practice of resistance to the

full, enjoyment of any of-the rights secured by this

subchapter, and that'the pattern or practice is of such

a nature and is intended to deny the full exercise, a

rights herein described, the Attorney General may

bring a civil aétion in the appropriate. district court.

oe

.

Section’ 706 (2 ;) of the Act, 42 US.C. $ 20000-5¢8) ial

vides. that: ey Ge x

If the court finds thaf the rexpondent has inten- '

tionalty engaged in or is intentionally engaging in an.

unlawful employment practice charged in the com-_

~_plaint; the court may”enjoin the respondent from

engaging in such unlawful employment practice, and.

order such affirmative action ; as may be’ appropriate

a It would thus appear that in order to prevail in this. action

\ the United States has the burden of establishing that the.

Ae ‘defendants have intentionally engaged in, or are engaging

in, actions,.as -alleged in the complaint constituting a pat-

tern or practice.of racial discrimination.’ |

As of this date, a substantial body. of ane con-

struing ‘the —— ofthe Civil | Rights Act of 1964, here . -

% “38

’

e

?

under consideration, has not yet. developed. There are, . nee

However, certain principles which do appear from the [

' decided cases and: the legislative history of the Act, While—— .

the. United: States has cited many cases involving dis-

crimination in voting, rights, this Court bélieves that,. by

reason of the distinctions in fact’ and Jaw between. such *

“cases & and the one. at bar, the. principles enunciated in the

_ voting rights ééses are relevant hereto only at theirehr oad-

et general levels” and cannot ‘be determinative’ ‘of precise

factual issues’ herein. : ? :

~The primary. proposition agreed © upon by. the. courts

~ construing the Civil Rights, Act, looking to the legislative

_ history for guidance, is that the Act is “prospective: and

only reaches discr iminatory ractices occurring after its ef-

fective date of July 2, 19% : Griggs v. Duke Power Co.,

No. C- 210- G- 66, Midge District N. Carolina, 9/30/6832

Dobbins v. Local 212, IBEW, 292 F. Supp. 413 (D.C.

S. D. -Ohio, 1968): United. States v. Local 189, United

Papermakers and Paperworkers, 282 F. Supp. 39 (D.C.

E.D. La., 1968); United States v. Sheet Metal ‘Workers,

280 -F. vas. 719 (D.C. ED. Mo., - 1968); Quarles v. ’

Phillip Morris, Inc., 279 F. Supp: 505 (D.C. E.D. Va.;

ie 1968). It further: ‘appears from these same authorities: that.

' . pre-Act practices may- be considered on -the question of i

______ intent: in determining, whether post-Act_practices-are-dis-————

criminatory. ° ? ed ee a % ig

Another point which appears to. be agreed upon by

‘ the decisions in which it has been considered, is that the.

‘simple absence of.Negroés from a given group is hot con- -

clusive evidence of discrimination. Dobbins v. Local 21 r+

supra, at 445-446; United States v. Sheet Metal Workers,

supra, at p. 728. On the other hand, such a statistical _

_ demonstration coupled with a.showing ‘of specific acts of

. discrimination may be sufficient to ane out a prima facie

. tion supported by xurt gras and Negroes at apprentice- :

|

|

cas® This. the pypO@NG Ts teewimen: that a presumption-of

discrimination arses Styar cte jac that there are substan- °’

tial numbers of guaites Mage clecticians (a proposi-

~ .

ship age interested u?. cedeaming Stestricidns ta pr oposition |

a | . 4 e . .

. Suppe ‘ted OV ne proeit uz ye Cleveland ‘area is not: sup

Sn |

“.

ported ir the lia Woo a a a certainly world,

‘lead ‘one to assume taur ~Matiye Vv total abséned fof

| Negroes froth.a trade Bn Wes. not a mere caincidence,

such fact is ‘Tot’ st ete eon. tmake Aue a Case tor relief :

under the Civil Foghts Acc witha a ‘irther ‘showing of

actual disérimingiery -cracciazm ° ae * dr Tae” Oo ae

. P ~~

With regaré to “he om it mm proof af acts of- dis-\: -

4 - — ee

erimin: ation. an a egte xucieer ar practice af discriminas. “

: é 7 . - . : . ‘ > As ‘ .

tion cannot be bese Saintes. acts .‘o! giescefrination :

By > “pean. ~

, I Ss,5 ret =yG

—. - = < _ —" me: * “

[ nied Stetes “ . ‘Ths : S. SUDA, ai _p. Zo.

~ That question miust te maton: he total ty of the ale aon

leged @iscriminat rw < . *s. * the opt: nan yt Sameer i a ‘

: . <

Alth ough Thess Sinnoen aithority con struing Title

VII of the Civ Reghts Acc cng misaonty of stich decisions -

recognize’ Certain, Gmetanuis Ss as Tao rehet which. is

a

appropriate. thercuniter -tok R may brs premature to ‘

discuss reuet at this ‘po fo of relevant in that it reflects

“9 be > . ~. . vd .

on: the sCope of ine Act ame, the “Congres sseonal intent -De-

hind it. -The-plainti= jcoes saint where d iscrimination --*

a ~, 4. . a : . Lr . 4 ? ms 1 , oa

established necative relet os aor sufhicjent and affirmative

action: is Tequitec: Sitetp.ovim. the Quazles-decision- the

statement {hat: /- os .

.

. , Ne acs ‘Coes Bee oomsinihe “present § differences that —

“e. the -restict ot seer st thectiminate beto

e ce

effective date of *®e a2 -/*@ F. Supp 505, 518

° : . @ nd .

As fo that. statemen=: foweuen ther. othurt has taken

the posititn that ,

-t 2 .

~ % . e .

. . : ~s

a

If the deers: whee 2 Qi aS ee may, “i inteeneeted to

hold that présent oc nse uences of past discrimination

are covered: by:ahe Ase? thig Coyrt holds otherwise. iy

Griggs v. Duke Poscer or Co a a P. 7 *

> s

— tothis Sure Stas a Surv ey of prior decisions sy

that’while the-< wetet is srg = ut

Act to remedy c nn t past oe ‘rather than +

simply to enjoin future « ibid ahien, that pow ‘er is sub- ,

‘ject to a definite restrict: Ie arising froni the terms of the

Act itself, 42 USC. § 200 dete (j).

. Section 2000e-2) +)? in pe Tt nent part. jucwiden: that: of.

‘¢- + Nothing contained in 1 1S St ubchapter shall be in-* . \.

terpreted té recuire any. . labor (organization, or —

joint labor-management co mmittee ... , to grant pref- aoe

erential treatment-16 any individual, or to: any group

because ,of the race. g&lor .. . of such individual or

group en aceount of any imbalance which’ may exist

) with respect to the’ iofal number or percentage of.

persons:of any race. coler... .”. referred or ries

for employment Sy any . . < labor organization . .. or.

admitted to... any apprenticeship or can reer

- program. in SOMPATSY A with | the total number or

- | percent age-ef persohs of such race. color -.-% iM any,

~! “eommunity . ... ox other areas. or in the available

-work force in anv communi ity .. . or other area.

0

/

.

“In construing Seezion -D)00-e(j) the court stated in the«

Dobbins case: ai ;

J

It is ‘the’ Gorernmen s pe sition that Title VII.

upon bec coming ove e "required aunion.. ..to take of

affirmative action to rehier cheve the present-day result_of-

+ pre-Act “ discrimination Stated otherwise. _the Gov-

ernment ciatms that dinciesthatues a actions in the past

~ havea adie Sregt amipact. on individyal elec-

tricians. whe, “rettised 1 enion ‘rember ‘sHtip or work in_ 7

7 the” past are relurtant to subjett themselves tosimilar | .

we.

.

° e

Accord: United, States v. H. K. Porter Co., 70 LRRM 2131. 3

16

treatment: now. Our searieuie is to the contrary, .

based on 2000e-2 ¢j).”

In our view siabiee post- “Act action, @ikected

eer toward a group to correct pre-Act discrimination

against that group constitutes the granting of prefer-.

ential treatment to that. group and on that subject.

Congress has specifically stated that Title VII shall

not te construed so as to require a labor union: to

grant preferential treatment tc any group based on

“.” race or color. 292 F.. Supp. 413,444.

3149" (D.C. N.D. Ala., 1968) ; United States v. Sheet Metal

.. Workers, supra, at 729-730. It is this Court’s conclusion

avoid transgressing: the. boundaries established by. Section

'2000e-2(j), and that the plaintiff's s theory. of law does not

that: while some affirmative relief may be appropriate

under the Act, it’ “must be carefully delineated so as to

adhere to that fine line. _

Finally,.w hile Title VI of the Chit nike Act aftot ds

a valuable tool in moving “forw ard in the creation of an

ence feeds the fires of discontent, its

integrated society and overcoming sgcial ills whose: pres-

: Ere should not

‘ be considered as a panacea for the effects of lifetimes o:

deprivation. nor applied in: a vindictive: manner against

those who have inhérited problems originating in another

era: Neither the ttorney General nor the courts can

overlook such consi erations while seeking to implement

the important and necessary objectives” of the Act.- A

caveat in this regard ‘is*set forth’ in the Sheet Metal

Workers, opinion, wherein it was stated:

The Civil Rights Act of 1964 was not intended to

pinline unions or others for their sins prior to the

' effective’ date of: the Act. It is* prospective only.

Neither was it passed to destroy seniority rights in

_ unions or in business. The Act specifically forbids a

\

/

oo

-

~ union or a business’ from giving preferential treat-

‘ment to Negroes to correct an existing imbalance of

whites. In order to be a violation ofthis Act, there |

‘must be ah- intentional pattern and practice of dis-

crimination and not an isolated instance of diseri im-

ination. 280 F. Supp. 719, 730.

With this prefatory “consideration of the dominant

legal propositions involved in this action, the Court may

- now consider the merits of the Sovernment’s allegations.

These questions will be taken -up-by the general categori ies

previously noted herein, but not in‘the order of presenta-

tion set. forth in plaintiff's complaint and brief: > re

Contractor Affiliation |

The Government contends. that Local 38 has discrim-

inated, and continues to -diser iminate, against Negro .con-

tractors in its policies and practices with respect to ‘union.

affiliation. There is no doubt that ‘union affiliation is bene-

ficial to an electrical contractor, and that if discrimination

“were practiced. in this regard it would call for remedial

action.

While conceding that three Negro contractors were

affiliated before the effective date of the Civil Rights Act

of. 1964, the plaintiff contends that their relations with the

union weré’ so tenuous that Local 38 officials cannot say *.

how many employees they have now or had at the time

they affiliated. ‘That ar gument is ol no merit, for there

is no evidence that the union officials maintained such

data regarding white contractors.

Similarly, ‘the recitation of the relative numbers and

* percentages of Negro and white union and non-union con-

tractors is not conclusive without ° a showing of diserim-

' ination. ¢

“The plaintills evidence on contractor allifiation was

offered through Paul Tiber, John Jackson, Robert Richara-

gon, -C. J. Callahan, Sol Sloan, Kddic Reese and Alvin

(Lewis. Messrs. Tiber, “Sloan and Le wis are white, and

Messrs. Jackson, Richardson, Reese and Callahan are

Negro. . . Me : ;

The te stimony of Mr. Sloan, who was an electrical

pene during the years 1958 through 1962, is relied

upon by plaintiff as ica that he was denied

union affiliation beeause he had only one employee, who

Whis Ne ero. Plaintif!s exhibit: 4 ees that Mr. Sloat

made many unsuccessful attempts to%ebtain union allilia-

tion. ‘That same exhibit, However, refleets the rejection

of seven other: applic ants during the same period of time,

three of whom were, IBEW members, and the » ceptance

‘of only one application for affiliation. Presumably, the

seven other ‘rejected applicants were white. and there is

no evidence that they employed Negroes. On these facts.

the Court does not believe that it can be said that the

plaintif? has proved ravial discrimination in the rejection .

of Mr. Sloan by Loeal 38. |

The testimony of .Mr: carte is not. only pre-Act.

but virtually irrelevant to this action. His statement that

he was refused affiliation prior to 1958 places that occur--

wenee too remote in time to be conside ‘red herein. His

ether testimony pertained to an incident that occurred in

March: 1965. He testified that at that, time he-was work-

ing on a project on a Saturday morning, when he was

approached by two men who said they were from the

union and w orking gn a building next door, but denied *”

that they were Local 38 business agents. He stated that

they told him he .coul not continue on his job because

‘thé union was ae Mare door and he’was not allowed

to work next to union ey He replied that if he was

_19

not allowed to work he would like to join the union, asked

the two men to vouch for him before the union, and. gave

the men his card. He stated that the men promised to

follow through, but he was never contacted by .the union.

However, Mr. Jackson testified that following that visit

he sobieed on to completion with his job without’ any

further interference. This testimony does not support the

Government’s contention that Mr. Jackson was given a’

“run-around” in an attempt to obtain union affiliation.

° - The plaintiff further contends that-Local 38 has dis- -

criminated in failing to advise Negro contractors of the

opportunity: to become affiliatedy Mr. Reese testified that*

in 1964 he came to the union seeking work, but was re-

jected, being advised that he was considered to be a_con-

tractor at the time. Mr. Richardson testified that: in the

spring of 1965 he was required to abandon a job Kecause _

of his non-union status. Each of these parties stated that

they were not offered the opportunity. to obtain union

‘affiliation. The deficiency in this pre-Act evidence is that

there is no proof that the union officials offered affiliation -

to white contractors similarly situated. :

Plaintiff's post-Act evidence is derived from Mr.

Richardson and Mr. Callahan. : ; =

Mw Richardson first appeared before the Local 38

Executive Board in 1960 seeking affiliation, and was re-

jected. In early 1968 he was on.a project at St. John’s

College in Cleveland when a Local 38 business agent left

word for him to call. He thereafter met with the Local 38 =

‘ Business Manager, two other union representatives, the Ss

President of the prime contractor for the-project,.and two

“representatives of the Catholic Diocese. The- matter of his

affiliating with Local 38 was discussed, but he made no-

decision. Mr. Richardson eventuallye. did affiliate with

Local 38 in August, 1968, following several other meetings

avs

*

>

4

w"

with Local 38’s-business manager. Although plaintiff

suggests that this delay was attributable to the union and

‘bears racial overtones, it is the ‘Cotiyt’s opinion that the

‘record clearly establishes that Mr. Richardson was bar-

gaining with the union during the interim. regarditig cer-

tain conditions of affiliation. -Mr. Richardson lost one of

_ the bar gaihing points, the possibility of not paying some of °

his men union scale, and won the other, his employees

continuing to work without taking any IBEW union affili-

ation. Based on Mr. Richardson’s entire testimony the

- Court finds no discriminatory. action ‘towards him after.

July 2,°1965.

The testimony of Me. Callahan was offered to estab-

lish that Local 38 imposéd different requirements for

affiliation on Negroes than on whites. |

He 6riginally. went before the Local 38 iowa

Board in 1966. At that time he madé no formal application _

for affiliation, but was advised that if he wished-té-do so

he would have to exhibit two letters of credit from sup-

pliers and financial statements ‘of his business and post a

bond guaranteeing his ability to meet his payrolls. As to

the amount of the bond, he stated that he was “not very

clear on [it], but I believe it was in the neighborhood of -

$15,000." Mr.’ Callahan’s statement regarding his 1966

appearance was: that:

I didn’t make an sppliGgiion t at that time. I went.

there’ seeking information to find out what it would

take to become a union Maearcaciacnie

He ‘made no effort to follow’ up ‘on that initial, visit.

~ In 1968, however, he was offered a job that required him

to assure the prime contractor that his non- -union status .

would not create labor problems. He thereupon went to

the union hall and spoke with the Local 38 Business

Manager. At that meeting an | appointment was madé for

; fy

21

Mr. Callahan to appear before the Executive Board in twé

weeks, at which meeting he was to. bring in a financial

abr statement, and two letters of credit. He was,also advised -

that he could begin his: job. without’ any seb of problems

-with the union, which he did. are Callahan appeared

before the Executive Board with the’ requested documents

_ anid was advised that if hé could post a $6,000 bond he

‘would be accepted as an affiliated contractor, subject to | -

a general membership’. vote for approval. We stated that

he could post such a bond, and shortly - thereafter was

notified of his acceptance.

‘Plaintiff's Exhibit 31-C, being an excerpt from an-

swers to interrogatories, lists the names of all persons

who affiliated as contractors with Local 38 after October

a 1967. Mr. Callahan and three whites are named. As to

the standards imposed for affiliation it is statéd: ,

(1) For all contractors who signed the contract

after May 1, 1968: payment of Wages and Welfare

Bond $1, 000 per man up to ten men or $10, 000.

(2) For all’ others: $6,000 payroll bond, Work-

men’s Compensation proof, bank statement regarding

Teas and letter of credentials from wholesale

houses, city license. .

The plaintiff offered ‘no wttenas that this interrogatory

response was inaccurate as it pertained: to the white con-

tractors named therein. The plaintiff did show that- Mr. |

Tiber and Mr. Lewis were granted pre-Act affiliation with-.

out being required to post any bond. That evidence ‘is

not probative of ‘the issue of whether discriminatory

standards were imposed on Mr. Callahan in. 1968. - It thus

appears that when Mr. Callahan affiliated the standards __

~ he was required to meet were precisely the same as those

for white contractors. cle

The plaintiff contends, however, that the alleged

| a ee | |

$15,000 bond requested in 1966 was a discriminatory de-

vice designed to-insure that he would not make a formal

application. In view of Mr. Callahan’s . admittedly hazy

- recollection on the question of the amount of the bond

requested in 1966, and the fact that he thereafter did’

‘make:..4 formal application for affiliation when his best

interests were seryed by such action, the Court cannot

accept that evidence ‘as _ being proof of a pattern and

practice of discrimination.

Finally, the Gover nment contends that the fact that

the decision on contractor affiliation is subject to the dis-

cretion of a vote of the Executive Board and general mem-

bership, even though there are specified: standards for

affiliation, is inherently discriminatory. While it is true

that such a vote has the potential to be used as a discrim-

inatory device, there is no evidence that it has been used

-*as such since.July 2, 1965. Absent such proof the inher ent

vice provides no basis for judicial intervention.

Although Local 38 may have discouraged Negro -con-

tractors from affiliating prior to July’ 2, 1965, ‘it is. the

Court’s conclusion that. the plaintiff has failgd to prove ©

that Local 38 engaged in a pattern and practice of racial

discrimination with regard to contractor affiliation after

the effective date of the Civil sigite Act of 1964.

Journey yman M enibetship

The plaintiff edhiends that Local 38 has discriminated

in its policies with respect to admission of Negroes to

journeyman membership status. oe

There are two avenues of securing jourheyman mem-

bership in Local 38. The first is through apprenticeship.

' An ‘applicant selected ‘for. apprenticeship becomes a

~ member of Local 38 after being an apprentice for Six °

months, and apes satisfactory completion of his four year

oes

a: |

apprenticeship becomes a jour neyman member. The

~ second route to membership is through the referral system,

a subject that will be considered in, detail ‘under its own

heading. Basically speaking, however, an electrician who ;

has been working for’a given number of years under the

‘jurisdiction of Local 38 through its referral system may

take a journeyman wireman’s éxam to qualify for Group

,One rating in the referral system. Hf he successfully

achieves Group One status he is entitled to apply for

membership in the union, subject to a by a vote

of the general membership.. | 3

At the outset of its argument on this point the Govern

ment cites certain statistics as -to the racial composition

of Local 38’s membership over a period of years. That

table is as: follows: |

Date | ' ., - -White ‘Negro .

Jan. 1, 1957 -.. 1049 / 0 -

. Jan. 1, 1960 aie 1101 oe ae

Jan. 1, 1965 . os fot 2

Jan: 1, 1967 i 1316 ri

Oct. 1, 1967 | 1329... 3

Sept. 25; 1968 . ‘1331 4

These. statistics withoiit further proof will not support a

claim of discrimination under the Act, although standing

alone they would certainly cause a reasonable. man to

question whether the union’s admission policies had been

- equitable.

The plaintiff offered ee which, alicia sub-

ject to attack by the defense as to its credibility, would be

sufficient to support a finding that Negroes had sought

direct mémbership in Local 38, both pre-Act and aaa

and their requests were denied.

. Lécal 38’s refusal to accept those ee saalicatate

for direct membership does not support a finding of racial

24.

‘discrimination.’ All the ‘evidence in this record, both

' testimonial and: documentary, positively establishes that; .

with but one exception, in 1957 when 3. Negroes’ were ©

"granted direct membership,' Local 38 has not, during any’.

relevant period,. granted direct membership to ‘anyone

. and has never granted, direct membership to any white

' applicants. There is genta proof that white mem-

. bers of other IBEW Idcals who have requested to be taken

directly into Eocal 38 have been refused. Therefore, the

refusal to grant such privileges to Negroes cannot, “standing

alone, be considered as a violation of Title VII.

The next aspects: of ,the plaintiff’ s ‘argument on this ©

subject carry over to the two remaining areas of contro-

' versy, the referral and apprenticeship systems.

The Government contends that as the union has prac-

ticed discrimination in the past administration of its ap-

prenticeship classes that all Negroes over sapprenticeship :

age are forever excluded from membership and. that con-

tinued refusal to. directly admit Negroes over apprentice-

ship age violates Section 703(¢)(1) of the Act, 42:U.S.C..

-$ 2000e-2(c). This argument. is not correct, for it ignores

the realities of the possibility of Negroes over apprentice-’

ship age achieving membership - through the referral ;

‘system, see p. 28 & 68, infra. :

“On the subject of the possibility of achieving union

membership through the referral system, the Government

contends that this alternative method is meaningless, in

_that the required test has not been given since 1959. In

that "year 24 white men were tested for Group One quali- |

fication, and all failed. \ |

The union minutes relative to the admission of-ine 3

Negroes stated that such action .was being taken by reason of a

_ “mandate” issued by. the International Union, its. parent body,.

and the A.F.L. ’ .

“55-7

While the fact that there has heen no porn test huis ‘a

sever al years is true,.the failure to administer such a test |

cannot be considered discriminatory. It was not until:the.

summer of 1967 that any substantial numbers ‘of Negroes

began to work under the jurisdiction of Local 38 through

the referral system. - The record reflects that ‘af that time

_-Mr: Richard Acton, the newly elected Business Manager’

of Local 38, had. discussions with Mr. Richardson and also -

with individual Negroes applying for work indicating to

them that there was the possibility of achieving’ pinion ,

~ membership through the referral system. Mr. Acton-fur- _

ther testified that ‘he also discussed with Local 38’s newly :

“elected President, Mr. John G. Steele, the giving of the

v kequired test, and they determined to do so at a time when _

there: were enough Negroes qualified to take the test under

the existing standards so as to make it meaningful ab a

practical matter. Thereafter, the union leadership, be-.

came so tied up in this litigation that they were unable to

vimplement their determination to- proceed with such a

test.- When the Government became apprised of the fact

that Local 38 intended to proceed\with the test after this ~

trial had been concluded, a motion was filed by plaintiff

to restrain the union from going forward, which motion

was granted’ with leave to the union to reapply to the

Court for permission to give the test, Such a request 4 ‘is

now pending before the Court.

‘ "Tt would thus ‘appear that the initial failure ro ‘ade

minister the test for Group One status subsequent to July |

_.2,-1965 ‘could not have affected the employment oppor- |

tunities of ‘Negroes and that the fact that the test has not

yet been given is not racially motivated.. While the fact _

that there were not sufficient Negroes working under. the -

auspices of Local 38 to make the granting of the examina-

tion meaningful may itself involve racial discrimination,

+

—

‘ " ~

Q lee \

ml : F y

that is net the’ oof wey Mae: considédation and it

will be dealt ith y Damerime” the 1 eferral SVSTERNS |

It is therefore. Aus Clic s btinghusi at . that thtplain--

tiff has failed to prove.2 ge ovr une practice ot racial dis-

crimination oir the — 2k san. AS by its refusal to ‘dic

rectly admit, Negt “2 guacveyman membership or: its’

r

failure to dat eto admumtisaer the ast for Group One which

*e*

will open. the doef fer ac’ andication to sourmeyman |

membership, wisn ee ee

Were it not for e the SK Lhet the defendant union is

pressing to go forwa 2G WOlt DIN Gerulr One test. the Court

- would issue an order rene “hg yf le do so. for a confinuing

failure to. administer suet usc wend constitute.d disc

cringnatory pragt lee remecigihe ginder.Title VIL At this

juneture, ne such. orders DARSSATY ae

In its proposa s for ceed aindios’ the heading. of *jour-

neyman membershiv the c sat suggests ed’ certain vari-

_ ations in the colleeuve 3 Ou PMI nracedure! relative to

the Group One test amg'the tugtt of persons passing the

exam to apply for tourmestam thembhership in, Local 38.

Such alternative preeed¢utes Samsttuted: the entire relief

sought: by -plaintiff in this atu The & Sourt will retain

jurisdiction over the pending “zac ‘} v <ietendant ‘Local

38 relative to’ the giving cf the Joutnevman wireman’s

exam, andthe Gov ernment s pormasals as- to’ the appropri-

ate conditions to be apple tteeves wall he considered and

resolved Within thé framewers _

that mgtion. -

A

2m . ‘

, ™ t > i — - ‘ : e ‘ .

Ag fara. Ri . sme hey m1 t ,

- a »*

J

Since about is oS Lowa, BS nas. pursuant to its: col-

‘ ee

lective bargaining @Steement “wih he contractors, edn-

ducted a referral system” Aor imtyyactor who needs an -

electrician contacts’ the timers nel. and the wnion is then

to refer an electrician whe hes aomhed for employment.’

~% ).

-

aa.

~/

—. , :

' - . ; ; — = : .

“a es

‘ ~ 4 % pass, - . Ope

”

, -

, g x

electrician must ape

fill outa referral app.icdgion showing his job qualification.

The referral syst em is ay ded into four priority. groups.

cording to hid quabicati ;

gaining agreement Lees! 38 is to maintgin an out-of-work

list of all referral applicants for whom work is not avail-

able, and when om fe 1@ & jgb available the men. ar¢to be

referred from suck list by group priority, or by date of -

application Within groupe ‘Howéver. an applicant for. re-

ferral mug#@reconti ris Ik avaXtability for employment after

sixty day's in erde ey "ES ne ain. his priority.

Prior to Mes 1 . WS the réquirements for placement

in the four referral groups were as follows: | .

“3g,

, & Group I. Four years experience in the trade;

' “pass an IBEW

: “S) residence within the jurisdiction of Local 38:

and four years expe: rien¢e under the collective bar- -

, gainikg ices’ 3! : oe eee a

Group II. Four ‘years. experience in ‘the trade:

EW journeyman: wireman’s: exam. ;

,- Group II]. Eour years experience in the ide

one vear’s résidencé within the Nirisdietion of Local

08: four vears experichee under the collective bar-

: gaining agr Cement

-\ Group I IV. Dwo years experience in the trade.

-

* On May 3 1968 the standards for Groups I, III and IV.

were revised SO as Sis ee then. For Group 1 the work. |

was lowered to one year in the °

collective bargaining agree-

experience require ment

last four’ years under the

ment. For Group Ili the work: experience requirement .

-——

* Group. II is a spect ial cate

members of -other IBEW locals w ho are working ——

within the geographic jurisd iction of Local, 38. -*

“a a -

2v in person at the union hall and

_. and. the apyfiica ‘ant is c.ass\ied in one of the groups ac-"

sony. Under .fhe collective bar- =

\

ae

‘ourneyman wireman’s exam: one |

sory designed to accommodate

}

ar

“%,

In order tg become.a part of the referral system. a &

—- .

Sy 28

was wdaned to two years in the trade ‘and ‘ix fae in

the last three years under the agreement. Group: IV was ©

revised to require only one. year exper ience in the-trade.

By virtue of the requirements of the. apprenticeship

program, all persons completing the-program and thereby.

oo

_ becoming members of Local 38 automatically | satisfy the

requirements of Group I. Although Group I classification |

‘is also achievable by passing a journeyman wireman’s

exam, Group.I presently consists of* Local 38 members

only, in that no one peated the one such exam given in

1959. }

There was, prior to July 4 1965, ; a work group known -

as temporary 2- B helpers. This group, unlike the’ other

referral groups, was not established under the collective

bargaining agreement. It consisted of men with no prior .

electrical expfrience and essentially was composed of sens

or close relatives of union members. The 2-B helpers were *

generally employed during the summer, although theré is —

“evidence that some 2-B-workers were employed at other

_ times. ‘The 2-B classification. was discontinued prior to

the effective date of the Civil Rights Act. There is a con-

flict in the evidence as to the reasomor the discontinuance

. Of the 2-B category. The Government contends that it was

- terminated for racial reasons, and there is some testimony -

to support that view. The defense witnesses testified that

2-B was dropped because it was no longer serving the

ae aie for ‘which it had been created,

~ Although the 2-B ca tegory was formally: discontinued

- as i June 1, 1965 plaintiff introduced documentary evi-

dence indicating that thereafter Local 38 continued to

refer men for work who did: not have the. requisite experi-

énce. Exhibits were. introduced: containing referrals of

/

/

both white members of other untons and white non-union / °°

members whose refer ‘ral applications, it is. ieraineaat did /

%

"29

not reflect one year’s experience as electricians. The Court

has examined those exhibits, and finds that -contained

therein are referrals of unqualified -whites, although not. —

all the documentation therein ‘Supports the. plaintiff’ S Con- ©

tention.

William Hirsch, who was anion business agent up to: *

July, 1967, admitted that if there was a demand for help

‘that he could not meet with qualified electricians he would

refer unexperienced per sons. It appears that men so

referred would beé used to perform manual labor jobs.

Mr.- Richard Acton testified that. after he became

Business. Manager i in 1967 he did not make any original

referrals of inexperienced persons and‘adopted a require-

ment that applicants for referral have written proof of

prior work experience to avoid anyone falsifying their

qualificationsin order to obtain referral, as this record

shows had happened in the past. There is no evidence in

the record that any unqualified referral ~~ has

secured employment since July, 1967.

This matter of the referral of unqualified whites hes

.. dual relevance: to this. entire quéstion. of the referral

_ system. . | ;

| As‘a part of re relief ‘owaiihel bitten the: plain-

tiff séeks an order requiring Local 38 to adopt pr ocedures

for the referral of persons with less than. one year’s prior

experience as an electrician, and until such procedures ure:

adopted to refer all Negro applicants over apprenticeship

age with less than a year’s experience in Gr oup IV. This.

request will be considered hereinafter. +e)

Plaintiff also relies:on this evidence as proof-of dis-

crimination in the operation of the referral system, con-_

tending that at the time these white applicants were being

referred for employment qualified Negro electricians were

being refused the opportunity to work through the re-

ferral system. aay, :

30

There is evidence in the record to indicate that Local

~ 38 had engaged. in discrimination in the administration of

'. the referral System. The record: further indicates, how-

ever, that any discriminatory practices which existed in

this area came to a complete stop as of J uly, 1967. -At that

time new leadership came into control of Lécal 38 as a

result of an election held in June, 1967. The two prin-

cipal officials who assumed office were Richard Acton as

Business Manager and John: Gilbert Steele as President,

‘Mr. Acton replaced all the incumbent business* agents, ~

who work in the administration of: the referral system,

with his own appointees.

Plaintiff has alleged in its brief and has iebeuated

throughout the Government's presentation .that any

change in policy by the defendant union is a direct out-

- growth of the pendency of this litigation. The Govern-

ment has noted that Mr Acton and Mr. Steele. along with

other persons who ran fer union office with them on

various slates, had previously held union ‘positions. The

record indicates, however, that the prior representation

which these men had in‘ihe union’s elected bodies was not .

such as to enable them to have a strong hand in formulat-

ing union poliey. The Court. was able to obs serve Mr. Acton’

and Mr. Steele as witnesses in this trial and evaluate their

_credibi lity. It is the Court’s conclusion that their positive

“actions in moving this union forward in the. field of-racial

integration reflect their own personal convictions and do

not represent maffers of expediency to develop a record

for the courts. While it maybe true that the Govern-

ment’s investigation of ‘Local. 38 was a motivating force,

and the filing of this action coming, as it did, virtually on

- the eve of their election brought home to the new officers

a full realization of is of the problem confronting —

the union, that does require the conclusion that the

_ Officers’ response thereto was not in géod faith.

i

ol

The relevant statistics are that Local 38 referred no |

Negro journeyman electricians between January 1, 1962 -

and July 2, 1965 and referred two Negroes between July

2, 1965 and May ol, 1967. “One of the Negroes referred.

during the 1965-1967 périod was a journeyman member of

Local 38, Roger Freeman, and the circumstances of his

becoming a member of the union will be discussed in

considering the qiestion of apprenticeship. The .other

‘party was referred in November, 1965 to work on the

Federal /Office Building being constructed in Cleveland,

‘which project had a job requirement that inbnrity grote

be represented in the trode. nee _

As documentary evidence of discrimination the. plain~

tiff introduced into evidence a file secured from the union

records marked “Not Qualified.” Contained’ in that file

were referral applications of six Negroes: Theodore Pink-

ston, Dempsey Pugh, George Suddeth, Eddie Reese, Wil-~

.liam» Edwards and Herbert Massey, bearing dates rang-

ing from July, 1960 to June, 1967. The said applications,

on their: faces, would indicate that the applicants were

qualified for réferral at the time they requested employ-

ment. This would indicate that the applicants were dis-:

criminated against. The file also contained referral appli-

cations of four other persons ‘not identified as Negro, thus

raising at least a question as to whether the “Not. Quali-

fied” file represented racial discrimination, - ; : .

, While admitting that four of the six Negroes whose

referral applications were in the “Not Qualified” file re-

applied for r¢ferral after July, 1967 and obtained employ-

~ ment thereby, the Government criticizes the union for not

contacting these men when the applications first came to - ’

the attention of the new union- officers. If ‘the Govern-

ment’s “affirmative action” theory represented controlling

law there would be substance to that argument; as it does

32 |

not, the union’s passive attitude towards the “Not Quali-

fied”’ file is no evidence of present, as distinguished from

- past, discrimination. |

Messrs. Pinkston, Reese, Edwards wae Massey . ap-

“pear ed as plaintiff’s witnesses at the trial,

Mr. Pinkston’s testimony was all pre- -Act. He testified

that he was among a group of Negroes who took an exam .

for journeyman nfembership i in 1957," but that he was not

admitted to membership i in the union. He further testified

that in 1960 and 1963 he visited the union hall seeking |

-(umembership. On each of these occasions. he did. fill out a

referral application and was advised that the union had

members out of work at the time.

' The testimony. of Mr, Reese, Mr. ree and Mr.

Edwards is post-Act, although Mr. Reese did testify re-

garding three pre-Act rejections by: fhe union.” |

“. The testimony of Mr. Reege and Mr. Edwards was

comparable, in that each of these men related appearing

at’ the union hall in June, 1967, just before the union elec-

tion, seeking employment. Each stated ‘that he was told.

that-no work was then available, but that he should check

back in July. The July date was after the officers who

would be selected in the up-coming election were to be in-

‘\y stalled. ’ |

‘Mr. Massey went to the ealag hall in late 1965 seek-

ing employment, and was told that’none was. available,

and that there was no need for him to leave a referral -

application. In 1966 he again returned to the hall, filled:

out a referral application, and was told the union had .no

work available. While the defense attempted to justify

this latter refusal on the basis that Mr. Massey was then

e

® That exam was given to aaa 6 Negro electricians

asa qualifying test prior to the acceptance of the 3 Negroes —_

’ the Union in 1997, as previously set nies herein. -

| 33 | 1

employed and the union had a policy of only referring ,

men who were out of work, the record does not support |

* that contention.

It appears, from the record that at the time thine

Negro journeyman electricians applied for referral there

was full employment in the electrical industry in the

geographic jurisdiction of Local 38 3, and even a shortage of

help, during certain of the relevant periods. It therefore

follows that the failure of Local 38 to refer the men for

employment was discriminatory. |

The remaining question is whethér such discrimina-

tion was part of a pattern and practice to deny equal em-

ployment opportunities to Negroes, or represented isolated

acts of diserimination. Having considered the entire rec-

ord, the. Court has concluded that the acts of the union

officials in control at that time -reflected a racially dis-

criminatory policy with regard to referral for employment.

The next issue for the Court’s consideratton is the

relief necessary and appropriate, to remedy the union’s 7

discriminatory practices which continued until July, 1967.

The Government contends that the record supports

” the conclusion that there are between 50 and 106 qualified

Negro electricians in the Cleveland area, and a substan-

_ tial number of these have been denied, and are being.

denied, :the opportunity to secure employment through

Local 38. This contention is based on an estimate given at

_trial by one of ‘plaintiff’ S witnesses. . As a part of the. pro-

posed relief on this subject, the Gevernment suggests a

general -waiver of the requirements of experience under

the collective bargaining agreement and taking of a

journeyman wireman’s exam as to Negroes, and classifica-

tion in the referral’ system based on work experience alone.

It is the Government’s contention that only such action

can overcome the effects of past discrimination.

!

34 6 |

If the record lent substantial support to the argu-

ment ‘hat the union’s past actions have resulted in a large

number of Negroes being prejudiced as fax as their present

opportunities for employment are concerned, the Court |

‘would have to give serious considerafton to granting -

-lief in the manner suggested by the Gover nment.

Paul Tiber, a white electrical contractor’ who ap-.

peared as a plaintiff's witness, testified that in the spring

of 1968 he needed minority representation on his crew to

' satisfy the requirements for proceeding with a federally

funded project. He requested Local 38 to refer-to him:a’ .

Negro electrician, but there was none available, although

by that time the union si 9 referring Négroes. He

then contacted the Ohio State Employment Service and

several of the well known civil rights groups attempting to

find a qualified Negro electrician. He met with no success

until a civil rights organization, known as the Workers

Defense League, referred a journeyman electrician’ to

him! :

At the present time there are about 44 Negroes work-

ing on referral from Local 38. There is no evidence that -

as of this time any qualified Negro electrician has applied

for referral and has been unable to secure employment.

These considerations weigh heavily against the Gov-

ernment’s theory that there are presently many qualified ;

Negro electricians being denied employment opportunities, .

As was s said in the Local 212 decision:*

To ake out a prima facie case for class pur-

poses, as distinguished from individual purposes, the

plaintiff has the burden of showing the existence of :

a significant: number of members of the group possess-

ing the besic skill in the particular trade involved.

' Mr. Tiber testified that thereafter he had to ais the

man as incompetent. That maninony is unrebutted.

35 ;

The plaintiffs: have shown the existence of some’

members of the class who are skilled and who have

applied and as to those it has established a case. We

- cannot assume and do not assume from that- that

‘ there are other members of the group similarly quali-

fied. 292 F. Supp. 413, 445-446. ates ‘

The Court has intentionally cut off the discussion of

the union’s relationships with Negro: referral applicants as

of June, 1967 in order to illustrate the change in attitude

accompanying ‘the new leadership. That consideration is

relevant to the-issue of appropr iate relief. The Court will

now review the evidence on_ this subject subsequent to

| July ph 1967, the date the new officers: were installed.

. Mr. Reese, Mr. Edwards and ‘Mr. Massey each re-

- turned to Local 38 for referral in or after July, 1967, Mr.

Reese and Mr. Massey directly: and Mr. Edwards - ‘being

sent to the union by a a prospective employer he had con-:

tacted in response to a newspaper advertisement. In each

- instance, Mr. Acton, upon being advised that a prior re-

ferral application was on file, secured the earlier referral

application and each of the men was immediately referred:

for employment. Mr. Massey was referred for employ-

ment a second time in 1967, on the same day he appeared

at the union hali seeking work after having been dis-

charged from his prior job. | : ;

Elmer Thompson, a Negro electrician, came to Local -

38 in August, 1967. His visit thére was only for the pur-

_ pose of seeking membership. A business agent advised

him-he was not eligible for membership, and asked him

if he wanted a job. Mr. Thompson replied that he was.em- |

ployed and did not want a job, only member ship. Never-

theless, the business agent had him fill out a referral ap-

plication, although he did state there ° was no work im-

pwsecats available. In 1968 = _ Thompson applied for

36

a job with a-union contractor and was told by the con-

tractor that he would -have to be referred through the

union. He thereafter returned to Local 38, and was re-

ferred out for ‘employment. »

‘Willie E. Crook, a Negro journeyman electrician; was

referred for employment by Local 38-in April, 1968. Al-

though his recollection of the events leading to his referral

indicates about a three-month lapse between his initial

contact with the union aad his re eferral, documentary evi-

dence in the record indicates that the actual: lapse of time

was only about two weeks. On Mr, Crook’s first visit to the

union hall he had no written proof of his work experience.

He was questioned about his qualifications, was told that.

he could be employed although there was no work then

available, and that he should secure the nécessary pr oof

of work experience and return to the union ‘hall. Mr.

Crook took no steps to secure the requested proof, and did™

not ebtaen to the union hall. He was ther eafter called by

a union ‘representative and was told that there was work

available if he was still interested. Following that initi-

ative by | the union, Mr. Crook secured. the necessary >

papers for presentation to the union and was immediately

referred to a union contractor.

The two remaining fact witnesses whose testimony

bears ‘on the question’ of referral were Herman €. Tellis

and John H. Williams, Jr., both Negro electricians. Their,

testimony -is ‘relied upon by plaintiff as the basis for an

argument that Local 38 misinformed Negro applicants

about the requirements and procedures for referral.

‘Mr. Tellis testified that in September: 1967 Mr. Mas-

_sey, who was then working through the. referral. system,

suggested to him that if he joined Local 1377 of the IBEW-

he might be able to obtain employment: ‘through Local 38.

Local 1377 is a maintenance electricians’ union for. this

37

»

‘ gedgraphic area. ‘Mr, Teéllis stated that. he abies to. repre-

: ‘sentatives of botl\Local 137% and Local 38 and was told

\\. that-in order to be referred: he had to have proof of four

years experience as an electrician. He was,. however, un-

able to identify the person. from Local 38 he claimed gave

‘him’ such: information. At that time the minimum require-

.ment for referral was two years experience. Although Mr. .

‘Tellis could have proved two, years work experience, he

had previously worked out of the City. of Cleveland, and

. he had to go to Chattancoga, Tennessee, to get the proof —

of four years. experience. Consequently, there.was some

delay in his getting a letter showing four years prior ex-

‘perience, but after securing the same he was referred for

employment by Local 38.

Mr. Williams testified that in late 1967 he visited the.

Local 1377 offices because he heard that they were hiring

electricians. He stated that he was told that he. needed

proof of four years work: experience, secured such proof,

and was sent over to Local 38 which referred him directly

ta a job. There was no delay in Mr. ‘Williams’ secur ing

_employment, in.that he did not have proof of any work .

experience when :he first went to Local 1377. Mr. Williams

_ did not ‘testify that anyone from Local 38 told him that

four years exp lence was needed for referral.

The defer$e witnesses testified that no one from Local

38 had been advising Negro applicants that: four years,

rather than. two years, work’ experience were required

_for referral, and in view of the fact that Mr. Tellis could

not identify the party he allegedly spoke to at Local 38,

the defendant was unable to specifically * answer that

.charge ‘further. ; ae

It is this Court’s opinion that. this evidence is in-

sufficient to warrant a finding of a pattern or practice of

discrimination based thereon. Mr. Tellis’ _ testimony re-

\

am

ys t There is mee é Uest me an

strongly urged to obte a r

and:that each of the

and’ whose emp! oY

member of Local 1

membership ot- Mr.

is not s how nto hav

-Local 38 officials. I

ever, that many Negroes >

‘Without taking me seo

a Wegroe

an agreement thy!

to join any union.

who eventually took metmbess>:

originally referred

the facts do not suppert the

There is‘no e

Government's theo

a discriminatory device

‘courage them from

7

c ‘Nes SASS

mei? —

bind wan =

om

F . Be

WEG. ihiir

Felis kit XM

v >

> ~~

~ meee

~

Ts

lectrica!l cdntracter,

Ir oe ae

—s on

by T ~

hae

v idezice =

a ae

< wns SA ~

—_

<>

~

-

™~

“NN

Ge

wASRE 6 2a A

eS Vey ere geese

ry t

z

esas >.

SCC aime

Te.

Asash

eee ee

we ~s8e dh

—~

a

ETERS

a ~

om

CS

4

oo

ran

PRA:

.

den

7

'%

Negraes to dis-:

19

— So = : '

2xm™meny through Local.38.

es

™~

- 4 .

* re > ve

. ‘ ”

- . ~ °

¢ .

r ace a i aes a te a o 4° « aes “- >

iia his pernerees Rs Lis, . ‘ wee” UNM] nea woacal oo

representative Will Rot suprert sach . —- ‘Assuming’

. e ‘+ _~—— ‘ ‘ = ‘

that the eon a ‘Local LS mn conver such informa-

’ a ° EAR >

tion, responsibility for ther sccuchs. cumnot be Isid at the

/ ‘ \

e » . . z aS 4 ae 7 - AD hee a -]

door of Local : oo. aCseme & SOW THA Lacal oS caused

them to intentional Hv EISEeore a The true facts. - ° ;

The relationshi bemtecs T= SO 482 FT ane] JOS 5.

; 1e ys 1a AN aad ‘-> WN SPRINT mat. WY ah < Ml ana. aod 3 is

the foundhtion for an argtument Ig plainniff that at the

; * ’ — “ > ae 4

present time Local Q8 makes the ob -referral procedures

iS 3; ~ } f +. ~ iz ~ - a rae Me ~~ Y — i ,

more difficult far Negroes. Tf asthe Government's con-

. “. Shem « >> _ , }

tention .that Loca! 38 JOLOWS 2 Deh of reguéring non-

¢ : wie. aaeee .

~member referral applicants m .Liaecal 15777 and tha‘

-as to Negroes such Prsctee BS Gaturmatory.

‘1 é

tH Oey 7 4

meTeim IS a

2oted that the

1 hy Tiaeal 8a

Cu ehy 440082: oOo

-

+. Lacal io

-

=<

‘ sther

M: ° & ae cahan,

Mierars

er "OVD:

Dyi Were-

“UNION men. he mus

Se ee

IORI S

position. -

a0)

support. the

{ >> 39°77") eac

Lacal aehkiad Was

. the record. how-~

’

es

ce

Negroes, tay place théreon. is without merit.

‘ a ~ 29 . .

* = oes f

; kegs sae

Plaintiff's own witnesses established that whites \ obtaining

@ employment thrpugh referral from Local 38 were advised

~~ + ‘* rot >

to first join’ Local 1377 before seek mg referral. It‘appears ¥

to the Court that Loea! 38's primary concern is having all °

“mel working. under its jurisdiction., Negro or white, be.

members ‘of some, ey n jn order to avoid the problems in- °

herent in hay ing union and ronsunion labor workiiig on

the same project. The’G> vernment’ s argument thet this —_

~pelicy, of advacat: ing urmion membe orshi ip i Local. ‘1377 is

discriminatory, - ver rts ci a! aiormly, salted to-all re-

ferral applies rt. = _tesson er ‘the possible interpretation

-

t

‘the > Gov ernment that Local‘.

1 not’ ‘informing qualified.

‘Negroes of the e Opportunity for ref ms stating that in 1968

Kenneth Johnson apntied ior epprenticeship but should

have been offered’ veterrs.. The Goverhment, in-its brief,

» An arg gumént ae by

28 has discriminated in peierral

suggests that Many applic ants Se >¢king work through the*?

union do not ur devétond tse dis stinction beiween member-

>

. ship. eppren iticeShip. end non-member referral. The Court, ~

having heard Mr. . Fobnson $i testimony, is of the firm belief

that he kriew w hat h¢ wented> The fact: of the matter is

that Mr. Johnson was rmaployed. ; at the time he inquired |

‘abou: apprenticeship. 2 any event. there is no évidence -

in the record that the umien gdve any different informa-

tion to- whites than it did to Negroe es in this regard,

- Another instance of an alle gation of discrimination

~

unsuyported by a sHo Wins ofa «ferentiation i in treatment

2,

between Negroes and whites is the’ plaintiff's statement

that the union thas failed to adequately inform those '

Negroes now working urider the: referral system of its

mechanics. If that is So o. then it represents ‘a general fail-

ure - on the ys of the_ union to fully advise all referral

er neo

applicants, and w file that practice may not necessarily be

approved by the Court a as good practi ee, if cannot be conf \

demned asa violation of the Civil Right is Act.

Finally, while admitting that Lédal 88 has since July;.,

(1967 referred a number of Negroes lor employment, | the

Civernmien contends that the union /eontinues to follow =

policies’ which ; although not discrimifetory- On their face,

result in diser imination against Negroes because they ‘per-

petuate the effects'of previous e: <clusion of Negr oes. The

: evidence on this record supports a/ finding that. since July,

1967 wher the new union leader ‘ship iook office there has.

‘not béen a single instahice of true intentional discrimina-

- tion in the administration of the referral system. . Mr.

Acton testified that he has’ relerred every qualified Negro’

| electrician. who applied for work, and the plaintiff has

produced. no. evidence to ‘rebut that testimony. There’ is

other evidence in the record that the present union leader-

ship has ‘actively participated. in’ progra ms designed to

further integration of the craft unions, and to stimulate

f minority group interest in the electrical’ trade.

| - Mr. Wesley Toles, » Associate Director of Community

Relations of Case- Western Reserve University in Cleve-

land, testified that’ he and other persons interested in

‘obtaining employment for minority groups had sent.

Negroes to Mr, Acton and ‘that all. wh were qualified,

were referr ed for employment. Mr. Toles is.himself Negro

and is’ conversant with the question of race infr elatic n’ to.

the craft: unions, having for, many years held positions

* with various ‘goverpmental agencies whose activities were

related’ to Vhat problem. ‘He tendered the opinion that

while in the'p past Local’38 had been considered a problem

union, it no longer had such a reputation. : While that

opinion is vertaey not binding on the Court. nor ontrol-

a

“

41

ling on the issues herein, it does bear some relevance to

the issue of the present intent of the defendant union.

It appears to the: Court that the only way in which

the defendant union could improve its statistical record

_ with regard to Negro referrals would be to ‘solicit Negro

. electricians for employment, which ‘the Civil Rights Act

" does not require, or to grant preferential treatment to

Negro referral applicants, which the Civil Rights Act does

nae permit.

At the present time theré are over forty Negro elec-

tricians working on referral from Local 38. Approxi-

mately one-third of that group, including every individual

as to whom post-Act discrimination was shown, has been

working under the referral system: for a sufficient period

* of time to qualify for the proposed Group I journeyman’

-wireman’s exam. Although the plaintiff argues that Mr.

Pinkston is still only eligible for referral in Gr oup IV, the

fact of the matter with regard to Mr. Pinkston is that any

discrimination which was practiced against him was pre-

‘Act and: was related’ ¢o journeyman membership, not* re-

ferral. .

° Since approximately 1960 there has been full em-

ployment in the electrical trade in the geographic area

under the jurisdi¢tion. of Local 38, to» the point where

Local.38-has, at times, been unable to meet all contractors’

needs, and referral applicants have had their choice - of

jobs. The"record indicates that this condition is not ex-

_ pected to change materially in the foreseeable future.

Taking all of the post-Act evidence into corisideration,

the Court is of the opinion that the plaintiff's - -proposal

regarding waiver of the collective bargaining agreement’s’

experience requirements goes far beyond the lintits of the

order necessary to alleviate the effects of past di Timina-

‘

- 42

.tion. The legal predicate for that proposal by the Govern-

ment is that a referral program which, though neutral on

its face, continues the effects of prior discrimination must

* be considered as presently discriminatory, Dobbins v.

Local 212, supra, p. 445. |

_.. The deficiency in that proposition is that it is not

relevant to the record in this case. The effects of past

- discrimination have rather effectively been dissipated by

the policies of the present ‘union leadership. Each of the

Negroes. who was the subject of, discrimination has ad-

vanced within the referral system to the point where

the effects of ‘the prior practice no longer affects his em-

_ ployment opportunities. “As to other Negro’ electricians,

as to whom specific discrimination has nat been shown,

the union’s present referral policies coupled with actual

economic coiiditions in the home building industry, make

priority within the referral system an-abstract considera-

tion in-relation to an individual’s ability to obtain em-

ployment. — ; ee, .

‘On this record,+to grant the relief suggested by the

' Government would be very close to, if not an actual viola-

tion of 42 U'S.C. § 2000e-2( }) which prohibits preferential

treatment to correct an existing imbalance. For example,-

if a white and Negro electrician each with over four

years job experience, for the first time. entered sthe re-

ferral system as of the effective date of the order the

Negro would be placed ‘in Group Land the white in Group

IV. That would be true even though the Negro had never

before thought of. attempting to obtain employment

5 .through the union. ‘The Court ‘does not believe that the

Government's proof in this case warrants such action. We

are not dealing here with a situation comparable to dis-

crimination within a seniority system in an industrial

plant, such as was presented in Quarles v. Phillip Morris,

«a?

Dae Ge Ne SATS ee .

279 F. Supp. 505 (D.C. E.D. Va., 1968) and-United States

v. Local 189, 282 F. Supp., 39 (D.C. E.D. La., 1968): In |

those cases racial discrimination affected all members of.”

an identifiable group, employees in a given plant or. de-

partment, and waiver of certain requirements was neces-

* sary to overcome the demonstrable effects of that discrim-

ination. In this case the record rebuts the conclusion

that such a remedy is appropriate to overcome the proven

effects of discrimination. | =

~ In conjunction with its proposak that certain of the

collective ‘bargaining agreement conditions for referral bes

waived as to Negroes, the Government seeks an order that

Local 38 shall establish formal procedures for the referral ra

of persons with less than ore year of electrical experience

and until such time as.such procedures are formalized

Negro applicants. with less than one year’s experience as

an electrician and who are over the apprenticeship age °

shall be referred to Group IV: ‘This Court should not

‘require the union to establish a referral classification ‘not

provided for by: the collective bargaining agreement un- |

less the record indicates that such action is necessary to

overcome the effécts -of past discrimination. As’ the tem-.

porary 2-B classification, which referral ‘category was

similar to the group proposed: by the Government, was

. discontinued prior to J uly 2, 1965, this Court cannot grant

any relief based on its former existence. ‘While there is’

evidence that some whites without the requisite experience °

for ‘referral were given employment after July 2, 1965.

‘such practice was stopped by the present’ leadership ‘and -

the number of such referrals in relation. to- the total re-

a ferrals during the relevant period is small.. The Court

does not believe that the potential discriminatory impact _

of that discontinued practice {s significantly meaningful.

to warrant the ree relief proposed by: plaintiff,

‘ rm s ‘%

_@

44

“It appears to thé Court that to grant the veliet per mitting

referral of only Negroes with no electrical experience

would be to er eate a favored class in order to correct an

; existing imbalance, which is. pr ohibited by 42.U. S.C

$°2000e-2 (j).. f

‘The plaintiff has made other proposals regar doled the

relief hereunder. Certain of those Are directed. to a re-

. quirement that Local -38 strictly observe the collective

bargaining agreement’s, conditions as’ to record keeping. '

There is no question that the union should comply with,

such requir ements. “Certain other proposals, however,

would in effect make the United States a general super-

visor of the collective bargaining process through which

the referral program is formulated. The Court does not

believe such an order is warranted in this cag.

It is the Court’s conclusion ‘ ‘that the only relief nec-

essary at this time, based upon the entire record, is a_

general order enjoining the defendant union from dis-

criminating in the operation and administration o{ the

referral system, and requiring observance of the terms oi

the collective bargaining agreement of May 1, 1968. Such

an order is not to, be construed as preventing Local 38

from continuing to recommend that referral applicants —

é obtain membership in an IBEW local union, so long as that, |

is not made a condition of referral.

Apprenticeship

This is the only aspect of the case “involving the

activitiés of the EJAC, which is a joint union- -contractor |

board responsible for the administration of the union’s

apprenticeship program, Although the total number of

persons appointed to serve on EJAC at. any given time

may vary, when it sits‘as an examining board for actual

apprentice selection it is composed of six men, three from >

6

45

the union ana three contractor representatives. In addi-

Secretary to the committee, who is permitted a voice in

its affairs, but whe has no vote’ in the appr entice selection

. procedures.. _ | ‘ :

In coastdietng the plaintif’ s contention that EJAC.

has discriminated in the. selection’ of apprentices the evi-

- dence may be separated into three periods:

1) Prior to 1965

2) 1965-1966 . * ~~

3)* 1967 to present

The basis for this division is that the. apprentice selection

procedures were changed by EJAC in the years 1965 and

1967.

From the time of the establishment of the apprentice-

_ ship program until the summer of 1965 only two Negroes

were selected as apprentices, one in 1963 and the other in

1964. The two Negroes who were selected were taken into

the program after a civil rights protest regarding the

absence of minority group representation in thé crafts

- working on a Public Mall project in Cleveland and the

intervention of the Cleveland ‘Community Relations Board

in the dispute. F ollowing meetings with Mr. Ellsworth

Harpole, Director of the Community Relations Board, the

union agreed to immediately employ two Negroes on the

project as temporary 2-B helpers and thereafter consider

them for apprénticeship. Roger Freeman, previously men-

_ tion ‘to the regular members of EJAC, there is also a~

tioned in the) discussion of referral, was one of the men:-.

employed ac-a temporary’ 2-B helper and’ subsequently:

was selected as an apprentice.

. Having reviewed the record, the Court has slices |

that there can be little doubt that prior to the effective date

of Title VIT the EJAC did discriminate in the Selection of

rr? s

v

¥

, : 46 | °

apprentices. Such discriniination was not on a he ictly |

‘ racial basis, although the result ther eof was the exclusion

of minority group members.

Prior to 1965 BJAC had no. regular standar ds for the

‘selection of apprentices, utilizing factors shown in the

candidates’ applications and letters of reierence. There

was no fixed policy on the-giving of tests or oral interviews

to applicants,

It appears from the testimony of Mr. Aaron Ciao

who in late 1964 contacted the union regarding ap-

prenticeship as Special Representative of the President’s

Committee for Equal Employment Opportunity, that the

EJAC was, in effect,. ‘using a quota system in selecting ap-

prentices. As with many other crafts during —— years,

nepotism was prevalent under that, system.”

- Although Mr. Caghan testified that the persons con-.

cerned with apprentice selection’ told him’ that they. be-

lieved that their methods were reasonable and democratic,

and that they hoped to increase the number of Negro

apprentices in ensuing years, the Court finds that such *

seleetion procedures were: discriminatory, and if they had - |

_centinued past July 2, 1965 they would have béen i in viola-

tion of Title VII of the Civil Rights Act. :

During his.meetings with the union and EJAC repre-

sentatives, Mr. Caghan.advised them that their selection

program was in violation of recently adopt Federal Reg-

culations on the subject of Equal Employment Opportuni-

ties, 29 C.F.R. Part 30. The union officials-indicated that

they were not aware of that fact> -and would endeavor to

_ conform their selection procedures to me requirements of .”

the regulations.

*In the igptenticeship class’ selected in ihe fall of 1964 it

" appears that 22 of the 26 apprentices selected were related ha” .

members of Local 38.

47

; For the selection.of its 1965 and 1966 apprenticeship

classes, the EJAC adopted a testing procedure based on a ©

-_ 100-point Scoring system. The test was divided into two

50-point segments, referred to in the plaintiff’s presenta-

tion as non-oral and oral.’ > = s

The non-oral portion of the test ‘reflected scoring of

the applicant’s educational. background, which was based

‘on school transcripts, with a 30-point value, and the rgsults ‘

of the applicant’s performance on IQ and mechanical apti-

x

tude tests, with values of 10 points each. The administra- ._.

tion arid. scoring of the two tests and evaluation of the

applicant’s educational background, were done. by per-

sons independent of the EJAC. we

. The 50-point portion of the test referred to as the oral

examination was subdivided into two parts. Twenty points .

were. allotted to the category of “mechanical tests suit-

able to trade by Joint Apprenticeship Committee,” and 30 .

_ points to “oral interview,.’ in which the factors’ of interest,

; appearance, ambition, physical potential, personality, and

attitude were included. . 2

Prior to beginning the oral examination, each mem- .

ber of the EJAC panel entered the applicant’s non-oral _

grades on a scoring sheet. The applicant was then eX- ||

.amined and each. interviewer would, without prior con-.

' sultation, enter a grade for the two oral factors’ An appli-

cant’s final grade would be:the average of the total score

awarded by all members of the panel. re

That testing procedure was registered by EJAC with.

the appropriate governmental agencies pursuant to 29

CFR. 30, and was. given approval thereunder.

~~” Selection as an apprentice was not dependent on

achieving any particular score on the test. Prior to selec-

tion of the class a determination was made by EJAC as .

to the number of apprentices to be selected, and the cut-

‘ | 48

off point was, therefore, the score of the lowest scoring

candidate selected. That level would vary from class to.

class. i : |

The plaintiff contends that the hineadinn testing pro-

-cedure was applied discriminatorily in’ the selection of

‘the 1965 and 1966 apprenticeship classes.

Although the bulk of the evidence in support of that

argumerit is statistical, there is one matter which rests

on testimonial ¢vidence.. The Government contends. that.

‘ Negroes and whites were asked different questions’ on ,

the.oral side of the test. Having reviewed the testimony of

_ the three apprentice applicants who testified on thi¢ mat--

~ ter, and of ,othér- witnesses who testified generally as to:

‘the nature of the oral side gf the testing, the Court does

not agree with the Government’s conclusions based there-

on. ° ae Me roa

While it is true'that the testimony of the apprentice

applicants indicates that they were not all asked.the same °

questions or called upon to perform the’same tasks, there

were basic similarities in the interviews of all three. It

does not appear that anything required of any. of the ap-

_ +. plicants can be said to have been irrelevant to the purpose *

. ‘for which they were being exanfned. The EJAC had no

fixed pattern for the oral side of fhe test, and, as it appears |

that jin 1965 and 1966 many person’ alternated’ on the

six- lie, examining board, a variation. in content of. the

exam might reasonably be related to a change in personnel.

There is no evidence that the one white and two Negro

apprentice applicants who appeared as witnesses were —

‘examined by comparably composed: EJAC panels. It. is,

: therefore, thé Court’s opinion that plaintiff has failed-to

prove an intent on the part of EJAC ‘to practice racial dis-

- crimination hy subjecting _ Negro apprentice applicants

to a more stringent oral exam than that given whites.

7 49

The balance of the plaintiff’s proof on this question is

essentially statistical. It is the plaintiff’s contention that:

the statistics demonstrate that in 1965 and 1966 N egro ap- |

plicants were discriminated. against, in that they were

given, unwarranted low scores on the dral side ofthe test-__

ing procedure, thereby resulting in their rejection as ap- °

prentices. | " . poe

‘The first apprenticeship ‘class to which the testing -

procedure under consideration was applied was in April,

1965. From that class 30 white applicants were. selected -

" as apprentices. Eight Negroes were tested and interviewed |

by EJAC, none of whom was selected. . oa

The. Government relies upon the pre-Act. evidence

pertaining to this class as proof of a pattern and practice |

_ _ of diserimination. which it is contended extended beyond

the critical July, 1965 ‘date. It is the plaintiff’s position

that the fact that none of the ‘rejected Negro afsplicants

had an oral score over 33, whereas many white applicants,

~ including some with non-oral scores comparable to the.

- non-éral score of the Negro applicants, received substan-

tially higher oral scores, is proof of discriminatory grading.

iar The -Court has considered all the document ty. evi-

' - dence available for that apprenticeship class, which is in

an exhibit prepared by the plaintiff. he re exhibit con- —

tains the application form; portions of the independent. )

IQ and mechanical aptitude test materials, the EJAC Sec-

fon apprentice evaluation ‘form: reflecting the appli-|

ant’s average final. grade, and one ‘examiner’s completed

apprentice evaluation.form, for each of 28 of the 30 white ©

applicants selected and for the 8 Negro applicants re.

jected in the April, 1965 apprentice selection ‘procedures.

It ‘does appear from the sai? exhibit that the Negro

_ applicants received lower total grades on the 50-point oral ~

phase of the testing ‘than did“the successful*white appli-

a.

— ia

aid 3 ee . a aa 0 . ° ; i ‘

onan. > a i, Paw | of

-cants. There ate. howe ever awe other factors: which ap-

; eh : 7 © ° ,

pear: from the said exhibit thal SNM be disregarded. ,

~ First. the igi aaa r ey phal-as a group th:

puauation of the educational dae eeThand of the Neer

+ candidate Was not materially de rent Ren that of the

‘successful white. applicants Ths ‘performaiice of the

Negro candidates. however. xt vary significantly from

that of; most of : the - ‘white cdmdadates GA the IQ and.

‘mechanical aptitude tests. the Negro group scoring mach:

~ lower. "ae .

I

|

— Second, ‘the indiv idual grading sheets for the ‘Ne Gere

applicants retlects that om the ° aha orall side

the greatest down-grading was <2 the Mkpoint block re-

lating to mechanical aptitude. and met in the Si point Grale |

interview block: The individual bracing sheets coniaged:

oh

-

,

e+

SS

%

in the exhibit reflect rather Seve gtades for.

Negro a applicants on the actual-oral intermien

The followi ing table t reflects the Gata for the 8 Negro

applicants. The IQ ‘and mech artic? apitede test scores. .

‘ baséd on a total’ pogsible soo re of 10 Sach. would ‘be uni

form as to all EJA€ members. as they represent’ the re-

2 TS

c

- corded result of independent testire Nhe scores. on’ the

~

>

. EJAC mechanical aptitude test amd ore! interview, do not.

; represent the applicant's average fora) scores for those .

-factors,.as that data ‘is not contained in the reeotd. but -

_rather are the scores shown om thé individual grading.

sheets’ contained e the plaintit?’s exhibit

Applicant > s1Q 9. Mech Ape, | OBEAC|C Gral

Number - Test o%s Test a Tes. | Interview 2.

140 6 v . 2

85 Seats ee ; z:

181 6 - p t 28

. 156° ~~ ty > 35

99 Gn - 0 3 2 °

* 37 gee 0. r Os

“* #118 Ss. os: 2

125 $° 3 : 1s

; <

-— <<. . ; b 7 > - aoa

It appears to the Coe from these tesults that there

is at least _a strong possibility of a direct. correlation be-

tween achievement on the independent mechanical apti-

tude tests and the EJAC ‘mechanical’ aptitude tests: That

Possibility is further sup; por ied by the fact that in most

~ instances the successful w hite. applicants reflect a positive

correlation between the grades scored in both aptitude

. test categories. . race paneer

| Without. having compatable documentation from

among ,the rejected white applicants. the Court is without

sufficient data to.ascert a:n ‘whether thé ‘scoring of: the

Negro candidates Wes materially different from that of .

Whites whé had truly comparable ratings’ on their non- -

oral, performance. The non-oral scoring: of the accepted —

white applicants is, mot. when considered in detail. suf.

ficiently’ comparable © Provide the foundation for such

an analysis. °: : ; : |

Consequent ly; although the data. as to the 8 ies:

applicants, and particularly applicants. nunibers 85 and

125, raise some question as ‘to ,whether they were . fairly

‘scored: on the oU-point eral phase -of the tésting pro-

‘cedures, the C ourt does not beheve that the record is suf-

ficient to support a finding that there was intentional dis-

®

-

crimfnation inthe iad of thé ‘April, ———

ship, class: * es 7

. For the apprenti ce sship class sélected j iy ‘August, 1965, ,

it is stipulated. that’ 138 spplications were ‘originally filed,

1], from’ Negroes and 147 frem : whites. It is further stipu-- F

lated ‘that 110 persons were tested and interviewed, I.

Whites and 6 Negroes. Th irty-one apprentices were” ‘se-

lected for the class, all of whonr were white.

The evidence in. the record pertaining to dita class

is somewhat different from that available as to the April, -

1965 class, The stipulation contains the total non-oral and

a

¥

7?

$--

SS See

‘oral scores of all persons tested and interviewed. The

~ plaintiff has also submitted an. exhibit containing docu-

mentation as to all the successful white applicants and the

6 Negro nlicsais: That exhibit; however, ‘only contains

the summary sheet of the EJAC Secretary; which reflects

the categorical peint assignments én the non-oral side,.

but does not show any division,of points between the two -

-

categories on the oral side.

~The test data pelebins to the Negro candidates. which

. can be derived from this record is as follows: a

* Applicant 1Q.. ‘Mechnical ‘otal Oral

= No. Test Apt. Test ) Score ~

* 300 G 0 40

267 2 0 ~ 25.3

237 hg 0 7 226

226 2 @-° 235 °

320 8 10 5a:

Agee s 4 33.6

It, eis appears that, with, thie exception of applicant, No.

320, the Negro applicants. performed very poorly on the

independent mechanical aptitude test. The range of total

non- opal scores for the 5 Negro’ applicants, other than No.

320, was fr om 24 through. 32, with an average of 28.4. In

the absence of proof ofthe details:-regarding the total oral

score, the record does not éstablish ‘in what category the

ot ty

Negro applicants were down-graded by the EJAC. How- ,

_ever, if ond assumes any dégree of constancy Between the

scoring pattern as deweloped in the ‘April, 1965, class and

that for the August‘ class, the logical conclusion is that

the Negro applicants would have accumulated the major-

ity of their total oral points on the 30- -point oral interview

block; with a low score in the 20- -point mechanical aptitude .

factor. : .

From the statistical evidenge ‘available, it appears that

- the total oral grades of the six Negro applicaxts were,

— Ybe whole, lower than the total oral grades of white appli-

to ee. eee

‘cants and moved within a narrower range. It further

appears that the oral grades. réceived by the Neg roes djd

not show the’ same upward movement from their non-orel

grades as was the case with the’ majority of white’ appli-

cants. However, approximately one-third: of the white

applicants had a. pattern of scoring differential between

~“non-6ral and oral grades comparable to that of the Negra °

. ‘applicants. It further appears that the aver age non-oral

score of all white applicants’ was higher than that of the

Negroes, and that the average. non-oral rr of all the

ol’ white applicants selected as apprentié®s was-36. 9.

- 9 The statistics also indiéate that there were 56 white

applicants who s¢or ed betw een 26 and 32 non-oral poizits.

‘the rahge of five. of the six Negro applicants, and of that

group 47 failed to qualify for: apprenticeship. There. -were

25 white applicants who scored 1 higher. than 32. non- “or al

points ‘who were rejected, including: the son. of the man

then President of Local 38 and Chairman of EJAC.

- While’ the Government. relies on the compatison. of |

_‘ the total oral scores given to the Negro candidates in’ re-

‘lation to the total- oral scores given white candidates as

proof of discrimination, the Court _cannot accept the ‘same,

as being vonclusive on the point. By reason of. the fact

that ‘the record, does not reflect’ the. allocation of points

between thé aptitude test and oral interview factors on

the.oral side of the exam, the Court is \ unable to truly

evaluate the significance of the Negro. ‘candidates’ total .

oral scores. The plaintiff's theory would call upon.the.

Court to. accept. the possibility that the Negro candidates

were discriminatorily graded, and reject the possibility

that the total oral scores were correlative to per formance

on the independent testing. -It is also possible that the ;

Negra applicants appeared before the same examiners

. who scored approximately one-third éf the white appli-

.

54 a 9

cants in the same pattern of relationship between nerf |

oral and orai scores as is sHown for the Negro gr oup. it a

is the Court’s opinion’ that so long as the record, suggest

‘differ ‘ent possible explanations forthe grading of the Nfs

e candidates it cannot be. said that’ the Goveringént has -

sustained: its bur den of proof.

Negro applicant No.* 320 was the ne Ble of ci

group W ho- scored well on the:nonsora® test, receiving a

total grade of 46, but he was only awarded 25 points on

oral exam, thereby missing the cut- off Point of 77 for the

class: Standing’. alone, this would seem” to indicate, that’

there was. discrimination practiced against. him. The rec:

ord, howevérs reflects that. almost onesthird of the white

applicants - who scored over 40 non-oral “points | ‘missed

. selection as apprentices by reason Of receiving low oral

scores. This full picture weakens the Government's con-

tention that the’ rejection of ‘applicant No. 320 ° ‘was fo

racial reasons. . oe : ,

The next apprenticeship ae to which any Negroes -

applied for admission was in August. 1966. It is stipulated

that of 220 original applications, 22 were Negroes; and

that 125 whites and 14-Negr oes were found qualified and

continued .on to be tested and interviewed. The same

testing .pr ocedures in effect in 1965 were’ ‘utilized. for selec-

‘tion of that class, and 60 apprentices were selécted, one of.

— was Negro. af | .

The Court has carefully -cofisidered the joni

eviddnce in the record pertaining to the 1966 class, which

e same form as for the August, 1965 class, and finds

e same general pattern presented as was true for the

two 1965 classes.

_- Of the 14 Negro applicants, orfe scored 2 out of the

_ possible 10 points’on the independent mechanical aptitude

test, and the remainder scored no points..- The groups

*

c° «

& - v

ee

awe rte,

average § score on the 1Q tests was approximately 6.3, and

their average aggregate scor Vor the two independent fests

was approximately, 6.4 out of a possible 20- -point total.

’ The successful white applicants, as‘a group, had substan-

tiaHy better perfor mance levels on Shc tests. .

It appears. from the statisties in evidence that the . |

Negro group, as a whole, averaged lower on the oral side

of the test than. did the whités, as a group, and that, aS a

> -group, their oral scorés - moved within a narrower ‘rangey

both in point spread and in relation to non-oral scores,

than did the scores of,, whites. It further appears, ‘how- 1.

&

than those of the white applicants, as a group, the highest

noh-oral score achieyed by a Negro being 36...

Ali hough there ‘were some. white _applicants who .

‘scored in the: same non-oral range’ as the Negroes who

"were selected as apprentices, there was a greater number,

of whites. who scored. over 36 non- -oral points who were

‘4

——

_ \ . * sejected by reaser-oftow oral scores. There were several

Whites with non-oral Scores of 40 or over who were —

eliminated on the oral testing, ‘As the cut- off point for the

1966 class was only a total grade of 70, such mo ptm

detrei A received very low oral scores,” _

. On this record, it appears that the Negro oer eer

‘eke was selected achieved admission into the 1966 ap-

prenticeship class ‘in exactly the same-manner as did-sev-

eral of the w hites, by. combining a good total oral’ score’

- with an average non-oral performance. ets - ae

‘S The Court's overall concfysion pertaining t to the 1966

appr enticeship class’ is essentially” the same as with regard

' te the 1965 classes. While the general variations in gra

. ing betweén the Negro. candidates, as a group. and 7

white candidates, as a group, might indicate that dis-

crimination was practiced,. the record permits of other

- - ever, that their nori- oral scores, as a group, were lower -* ..*:

56

reasonable idiccnalive explanations for the failure of the.

_ Negroes to bé taken into apprenticeship. |

The major evidentiary, deficiency in this record is the

absence of evidence of the relationship between. the oral

scores ‘of the Negro applicants in 1965 and 1966 and. the

_.oral scores of a significant number -6f white candidates

~~ who performed i in a truly comparable manner on the non-

oral tests. Although the Court has the total or al ang) non-

oral scores for:all applicants in the August, 1965 and

. August, 1966 classes, the detailed scoring is only available

as te the Negro candidates and the successful white candi-

‘dates® and as between those two groups there is not a

. sufficient ideritity of 7 performance on the non- oral side ‘of

the tests, when considered in their det ails rather thani-as

total grade, to make a meaningful comparison.’ If this © -

_gecord contained evidence that a significant number of

“whites received substantially higher oral grades than did

thesNegro applicants despite-the fact that: the two groups:

performed in a reasonably comparable fashion on the non-

oral tests, that-would provide evidence of discrimination.

' The Court has found no such pr oof in the record.

There is one other item of evidence relevant to the’

question of the performance of the apprentice applicants.

Mr. Toles, of Case-Wesiern: Reserve, testified regarding a

-_pre-apprenticeship program he was conducting. ‘at the |

university. “In that program high school graduates are

given a cembination of on-the-job tr aining and schooling |

toe prepare them for apprenticeship tests in the trades.

Mr: Toles testified: that in inte viewing Negro and’ white ©

youths, .coming from the same school backgrounds: he |

found the whites to be better informed as to what. the |

various crafts, including the’ electricians, entailed and

better motivated toward entering a particular cr aft.

If this commentary. by Mr. Toles-is reflective of the

) ee

circumstances of the EJAC apprenticeship interviews, it

would provide a legitimate basis for a scoring differential:

between white: and Negro candidates. This is not td > say

that an apprenticeship examining committee should. dis-

regard the realities of urban. living, which many experts

believe place minority groups in an unequal position with .

regard to their -ability to acquire expostire to environ- °

mental influences which: prepare them to compete on ¢ven_

‘terms with middle-class groups for a position in industry |

and the trades. This Court believes that testing - pro- ,

cedures for such positions should, , withthe aid of experts

in: the field, be re-examined to.take such considerations ~

into account. The. issue in. this *case,. however. is not

whether the EJAC procedures - ‘could have been more |

sociologically satisfactory, but’ rathér whether the grading

patterns in: 1965" and 1966 disclose z an — to discri imi-

nate.

sidn that the plaintiff has failed to carry the burden of

proving that the Local 38 EJAC engaged in an intentional hf

“pattern: afd practice of: discrimination in the &dministra-

tion of the apprenticeship selection procedures:i in 1965 and

1966. The evidence raises some. doubts and suspicions’ in

thet direction, but there are simply too.many-holes in the

evidence for the Court to find other than that the plaintiff

has ge ae the possibility that Negtoes weré the sub-

ject of distvimination. . alt is the Court’s opinion that the

case. . °

The testing procedures utilized in 1965 ve 1966 were

“not carried forward jnto' 1967. F ellowing communication’

from a representative of the Department of Labor to the -

Based on all the foregoing, it is the. Court’s conclu- ,

_ Civil Rights” Act: “requires a stronger showing than that :

before’ the Court may find that the plain#fif has — its

Ohio State Apprentice Céuncil, which had. approved the. f=

we

58. |

‘existing’ test, and the. intervention of the Department of

Justice in this matter, the ‘EJAC adopted a\ plan for ap--

FT prenticeship selection known as the national plan, or yel-

‘ low ‘hook. The. composition of the committee was’ also

altered by the reduction of the number of persons. who

served ther eon,. ‘so a$ to create greater tnifor mity in the

examining panels, and the replacement of the. incumbent

union .representatives by persons appointed » by. Mr.

Steele, who -was then President’ of Local 38 and as such

- served. as EJAC Chairman. ‘Mr. Steele had not previously, See

’ served on EJAC.

The natianal plan had been’ developed a. few’ years

earlier, by. the staff of National Joint Apprenticeship and

' Training Committee for the electrical construction in- .

dustry. The NJAC is supported jointly : by management

and labor on a national basis,.and is ‘designed to promote

_and aid apprenticeship programs thr oughout the industry.

‘This plan had been determined to be consistent ‘with

29 CER Part 30. on a national basis by the U. S. Depart-

ment of Labor on May 26, 4966, and on ‘August 11, 1967

it was registered by the Bureau. or ‘Apprenticeship : and

.Training,. which is a bureau of ‘the Department of Labor,

for the Local 38 EJAC with the ~~ State Appr enticeship

Council. ) tee , |

There .is.a dispute Suen the parties as to the

derivation of the‘national plan, which has resulted in the -

filing of post- -trial evidentiary material with’ the Court.

It is the Court’s opinion that the controversy on such issue -

las risen far beyond its relevance to this case. _The identity’

of those who participated in the formulation of the plan i is

not critical hgrein, for the testing procedure must rise or"

fall on its fo merits. “Suffice it to say that.the Court:

_ believes thaNhe persons who participated in the drafting

of the procedures which culminated in the national plarr

*

59.

~—

"have heen shown to lee professional competence in the:

, field of apprenticeship selection. . Kae

‘The’ national ‘plan testing. procedures, are contained

| in a,booklet form. Four pages of the book’ represent the

actual scoring sheets, and ‘the balance of 17 pages written _

material (including cover pages) is basically instructional.

The first page of the rating | form covers certain basic

iprerequisités, and is used, to determine if the applicant is

qualified to proceed to oral interview. ;

The second and third pages constitute what has been

‘referred to‘as the objective -side ‘of : the test. They start

with an evaluation of math and science background,. and ~

the form provides for rating in six classifications ranging

from no background to excellent background. Unlike-the .-

procedures under the 1965 test the applicant’s educational +

background is not independently evaluated. Rather, pre-

‘ceding the oral interview Gach applicant’ s educational

background data’ is presented ‘to the examiners, and. each

"examiner evaluates it himself. The next. categories are. :

aptitude tests and other required tests. EJAC did not ad-

minister any tests which féll in the other required tests

‘category. As to aptitude tests, the Ohio State Employ-

" ment, Service admipistered a test known. as B.317. The

results, however, were transmitted%to EJAC in terms of

H:C and L. L score represented low, and’ such persons

were not called for oral interview. ‘As to. the H and C

scores, the EJAC -was advised that they were quite com-

parabie, and thus would not give much guidance in differ-

entiating between candidates. ~~~ :

Page three of the test contained a pabegory for evalua- . .

tion of general education, again with six scoring , blocks

ranging from poor to: excellerit’ background. It also con-

‘tained two categories relating to.aptitude or achievement ~

tests, . which’ 2 are not inion by the ‘Local 38 EJAC.-and

x: . a ®

a

a

—— — -g—

an evaluation of phy sical factots. As to iaihaal factors,

each candidate was scored satisfactory unless his basic

application, or the oral interview, disclosed a possible

health deficiency. which would affect his ability to.per- ”

form as an electrician. In that case he would be referred

to a physician for a further check- -up’ or ‘asked to produce

additional medical evidence. ar

’ This i is the extent of the objective side of the national

plan -test procedure. It thts’ ‘appears that the only por- .

tions of the objective tést which would produce any

- meaningful difference in-scoring among the applicants

would be those evaluating the candidates’ educational

backgrounds. he rae x

The fourth page of: the test ¥eftects the oral inter; |

view factors, and has been referred to as the’ subjective

test. The factors evalua ted on the subjective ‘side are: ‘in-

- terest, attitude, and per sonal traits. Each of those has five’

Possible scoring blocks. The personal traits category has _

an “unacceptable” block, and it was stated that a candidate

- could be-eliminated from- consideration on -that basis.

_ The evidenee refiected, how ever, that such action was rare

in the national experience. under the plan.

Finally, there is the grade assignment for the appli-

cant. That is done * on a scale ranging numerically from

10 through 120 in ten- -point intervals, with each interval

- carrying: a letter grade. This final grade represents each

interviewer's total assessment of the applicant, and does

not represent an averaging of scores achieved: in the’ seve-

ral categories. These final grades,.as well as the other

scoring, are entered by the individual examiners on their |

separate sheets. without ° ‘mutual consultation. The evi-

dence indicated that while’ some examiners would assign

-anumber or letter grade in scoring the various categories, -

others would simply make a mark in the scoring box’ they

a oe

Ta unwind a en | 3

_. considered applicable for that subject, and in-a few in- ”

. stancés no entry was made for a particular subject. The

applicant’s final grade was_ determined by averaging ‘the \

individual : scores awarded by the committee members.

The Government’ s attack | upon the current selection

procedures is not based on an attempt to demonstrgte dis-

crimination in actual’ apprentice selection, as was done ee

1965 and 1966, but is rather predicated on the proposition

- that the procedures are essentially subjective and. dis-.

cretionary, agd: arg inesentiy discriminatory. ssa argued

that: are x

" It is. of particular inpeitanbe, then, in light -of “

the EJAC’s long history, of racial discrimination’ to &n-

.. ‘sure that the current selection system. is objective

and reviewable. .For in. these circumstances a dis-°

_ cretionary system constitutes an “unlawful vehicle for, |

‘| further discrimination. . | Sate? Ml

Before considering thé plaintiff s aciesideniaias as to the!

inherent discriminatory nature of the-national ‘plan, thet

facts as to its actual performance should be considered. —

In 1967, 343 original applications for apprenticeship |

_ were filed, 289 from whites and 54 from Negroes. Of

those, 117 whites and 38. Negroes did not have the neces-

sary requisites or did not appear for testing or interview.

_.Of the 172 whites‘who were interviewed, 63 were selected

_ as apprentices. Of the 16 Negroes who | were interview ved,’

* 4 were selected as apprentices. , as

There were-three other Negroes admitted to the 1967.

class in addition to those taken-in through ‘the. normal

procedures. After assuming office, ‘Mr. Acton was in-..

formed of the Government's charge. of discrimination ine

the operation of the apprenticeship program. -At a meet-

ing in July, 1967.the*union agreed to offer a place in the

next apprenticeship elass to 13 Negroes whom the Gov-

‘

Bro 3

a

Ae

_ ernment alleged had been he subject of ects in

_.. whites and 63. chy Negroes.

1965 and 1966. Of that group, three? accepted the offer,

_ . two-declined, two failed to respond to the notice letter, one

could not be located” and five were in military service. As’ ’.

to those m the military, the offer-still remains open.

, achieved acceptance. dn that’ second attempt. It appears -

apprentices was selected, being constituted of 87 whites

and 13 Neer oes.’ Seven of the 12 Negroes who ‘were -un- |

- “successful in the 1967: test ‘reapplied. in 1968, aird four

from a review of the documentar ‘y evidence of prior years

that matty whites whg failed on a first try were also able

to achieve a. better result in a subsequent class:

These statistics, on their face, would indicate: that the

present. system is Operating free G discrimination. The -

Government. contends, however. that such conclusion can

not be drawn ‘in that the’ system is not subject to feview

therefore it cannot be determined if there were addi- *

Re Negro applicants who, although. well. qualified, were

‘rejected’ The plaintiff, however, ‘has had access to all rele-

Ss

vant documentary material forthe 1967: class, and-has not

made any claim of specific discrimimation , based thereon.

-On the other hand, the éxpert witness for 4 defense on.

this subject of apprenticeship testified regarding a system .

- of review which-he developed, and stated | that it had in-

dicated the possibility of two instances of distrimination

against Negro applicants, ‘but that when he checked the

detailed data regarding those applicants hie eee that

. such was not the case. eee

iere is no doubt that the national plan under which

the“ EJAC is. now operating has a substantial subjective

element in it, and as such the label of discretionary” t=

¢

[

é

as

‘In 1968, 670 original applications were filed, 607 by.

TOL that group 367-whites-and-

24 Negroes were ‘tested. anid interviewed. A- class of 100.

“to- MIAC, on this pac sate matter.

cy

pit —— =: .63

eehea to it by the plaintiff is not totally Po ee As To

say, however, that a testis. discretionary daes not- auto-

matically mean it is discriminatory. -A degree of dis¢re-

tion is not,. in and of itself a vice. It is the manner in

a which that discretion is exercised that is critical. There

“is testimony in this record by witnesses conversant with _

“the problem, that Negro youths j m this geographic area as a

group, are among those persons referred to-by sociologists

as culturally deprived, although. they do not constitute

the entirety ‘of that segment of the populace and not all

can be so_ categorized. As such they are at a general dis-

advantage i in competing with’suburban white youth, on the

basis of education and background. A testing procedure

with a discreti iondry element can be used to penalize the

culturally. depr ived’-for deficiencies / which society has.

. created, and thus further restrict their opportunities to

‘join the mainstream of modern life/ On thé other hand.

if such discretion .is wisely exercised, one may acknow ‘]-

edge these: realities of present urban conditions and make.

- allowances therefor: thereby i narrowing the built-in dif- -

ferential between individuals coming from unequal en-

vironments. On this record there is no evidence. that the

Local 38 EJAC has taken advantage of the discretionary

aspects of the national plan to practice racial discri imina- °

tion.

ee ce ee

; ;

In n summary, “the plaintiff has shown a generally dis-

criminator y approach to apprenticeship hy EJAC prior to .

July 2, 1965.° Althouigh the evidence for the years 1965 |

and. 1966 would support a “strong suspicion | ‘of racial dis-

crimination, the plaintiff has failed to prove an actual pat-

.tern and practice; of; discriinination continuing beyond

July: ie 1965. Consequently, the plaintiff is not entitled

toa finding in its favor; with a mandatory order dir ected

64. .

Notwithstanding this determination, the Court be-

_lieves that during the course of the trial certain. possible

weaknesses in the.national plan, and the manyer in which

it is-utilized, came to light., The defense expert, who toa

substantial degrte authored the national plan, acknowl-—

~ _ edged that it had some deficiencies. Although the Court

-_cannot-enter-a-mandatory. order requiring changes in the -

national plan ds it is used by Local 38, in that plaintiff has

- . not shown it to be a vehicle for diser imination, the Court

recommends’ that. the NJAC and Local: 38 EJAC consider

the ensuing commentary and adopt such variations in their

‘present procedures as may. be warranted, seeking the ad-

vice and assistance of any agencies, public or pr ivate, that

could aid in such an effort. This discussion is not intended

- to alter or detract from the Court's finding that the pres-—

ent sy stem is adequate and appears to be functioning fair-

ly. As agreed by both experts, there is no perfect method

for apprentice selection, and any existing system is sub-

ject to improvement.

_ The first area which might be eonsidered are > the.

evaluation guidelines and standards set forth in the na-

tional plan. It appears that, at least as to the Local 38

EJAC, the interpretation of the standards has led to a

variation, in grading patterns between examiners.;It should .

be stated, however, that while the examiners showed dif-

_ fering scoring patterns they maintained reasonable_in-

_-dividual consistency and their patterns did not evidence

~ any discrimination. It is the Court’s opinion that a more

uniform grading pattern, might be achieved/if the stand-

ards were revised to reflect a greater precision in directing

the examiner to specific factors and attributes to be con-

sidered in candidate evaluation and providing more con- | -

crete suggestions .as to appropriate scores based: upon the |

factors disclosed by the application form, educational data,

°o

6a

and interview, The Court ; is further of the opinion that if

such a revision ‘is made, the -guidelines should convey to.

the examiner some guidance in evaluating an applicant

fram a culturally: deprived environment. . :

Improved guidelines and standar ds will only be bene-

ficial if they ¢ are reflected i in the actual examination scoring.

The record indicates that the scoring habits of individual

examiners with regard to noting grades on each subject

matter were not consistent, nor was there any uniformity

with regard to the entry of written comment. The Court

- would therefore recommend that steps be taken to insure

that each examiner note a score for é¢ach subject matter

under some uniform system, that a written comment for

each subject matter be noted reflective ofthe score, and

‘that a general written summary: be required in support

of the final grade.

It is the Court’ S belief that if these steps are taken

the questions of reviewability of the national plan testing -

procedures will no longer exist. The Court is: satisfied -

from the demonstration of the defense. expert that it is

presently possible to determine the existence of a pattern

or. practice of discrimination under the national plan on

the part of an examining committee as a whole ar any. *

individual thereon, and that if such a pattern or practice

were detected, individual test results could ther be

checked for. specific. discrimination. ‘The potential problem

area is in the yerification of actual individual discrimina-

tion. Plaintiff's expert testified that even at this time if the

examiners were to follow the instructions and standards

under the present plan a determination as to racial dis-

crimination could be made.: It fallows that the more defi- -

nite’ the guidelines are and the more closely they are

adhered to, the more accurate-a determination of the 1 is-

sue can be made.

ey ; 4 Be

ie | 66

Pa Related to this matter of review is the question: ef

internal’ appeals procedures. It appears that the- right’ of

appeal from an EJAC decision, provided for in ‘the col-

lective bargaining agreement, has not been utilized be-

cause the applicants have not been stifficiently advised of

its existence. The Court would therefore recommend:

thatthe notice to rejected applicants be-revised so as-to

reflect the applicant’s grade, the minimum grade for ad-

mission, and specifically reciting tae appellate rights avail-

able. It has also been suggested that a recording or. tran-

script of the oral interviews should be preserved for pres- —

entation before the reviewing panel, and the Court, be-

lieves that .such suggestion warrants serious considera-

tion. | hae — | ° ;

One other step which could be taken in the direction

of aiding apprenticeship examiners is instruction by NJAC

representatiws, who-are available for consultation-on alt

, matters relating fer-consultation on all matters relating to

~ appr enticeship. It appears to the Court that the prior in-

structional ‘meetings between the NJAC representatives

and the Local 38 EJAC were of short duration. The Gourt -

believes that the NJAC could undertake a program of in-

tensive instruction: for those local-committees who wish

to upgrade their selection procedures, with particular em-_

phasis en the matter of evaluation of candidates from di- -

verse. backgrounds and the ways in which interview pro-

cedures can be varied to fully explore the actual qualifi-

cations of each candidate. ;

In making these’ recommendations, the Court. has

taken. into consideration the testing procedures proposed

by plaintiff i in its suggestions as to the relief which would .

have been sought as to apprenticeship. nee

* . The plaintiff's primary thesis was that the element |

of discretion should be taken out of the'tésting pracedures

~

67, ,

and virtually the entire selectién process be dependent on -

“objective” factors; With a permissible maximum of 10‘...

of the total grade allocated to oral ihterview..

A strictly objective test would focus squarely on an

_ applicartt’s educational background. The plaintiff’s own

expert testified that most minority group méYhbers come

. from a ‘culturally deprived environment and their edu-

cational opportunities and experiences are inferior to per-

sons of a middle-class background. ‘It would thus seem _

logical that a selection procedure based on such considera-

_ tions would inevitably diminish the possibility of an ap-_

plicant from a disadvantaged segment of the community

achi@ying admission into an apprenticeship program: 7

The Court has also considered the selection procedure

described by plaintiff's expert, which he used in selecting

.. persons for the position of bus dispatcher, which results |

in an applicant being rated as either unfcceptable, ac-

“ceptable or outsbanding. While such a. testing procedure |

may be perfectly satisfac ory in dealing with a promo--

tional system where job eis can also be taken into.

account, it does not appear to be appropriate for apprentice

selection. If, there were more eandidates achievir{g ac-

| ceptable -and outstanding ratingsNhan there were ap-—

prenticeships to be filled, the clas’ would have to be

selected on a lotteny basis. ° =e |

ra

7

“. 68. ° a

CONCLUSION. ).

In the prosecution of this lawsuit, the plaintiff had

a the bur len of proving an intentional pattern and prac- —

tice of racial discrimination, extending beyond July’ 2,,

1965, the effective date of the Civil Rights - Act. of 1964,

on the .part of the defendant. Local 38 in the aréas’ of

. journey man—membership, ‘contractor” affiliation and re-

ferral for 1 employment; and by defendant we AC i in the area

_=ef appre entice selection.

Ass to‘ journeyman membership, there v was no proof

ofa violatien of Title VII of the Ciyil Rights Act by the

union's refusal “to grant , direct. ‘@irneyman Membership |

~ to Negroes, as no white person had ever been accorded that tras

privilege.- The tangential issue of achieving journeyman

membership through the referral system. is not probative

of the claim of discrimination by the denial of applica-

* . tions--fer direct journeyman membership.-

On the issue af éontraétor affiliation, there has been

a failure of prNgf. Local.38 had three affiliated Negro con-

tractors before J ts 2,1965, and the plaintiff's claim that

Negroes. seeking “affiliation: thereafter were treated un-

equally with whites is not sustained by the evidence. |

The plaintiff has carried its burden of proving that a

- pattern and practice, of racial discrimination existed be-

yond July 2, 1965 as to referral for employment. The

record further establishes, however, that such practices

ended soon @fter- the’ election of the officers who took

charge af Local 38 in July, 1967. There is no evidence that

any Negro electrician i at the present fime, unable to

secure ‘employment pide the referral system by reason .

of racjal discyimination. Each of ‘the individuals who was __

the subject of actual discrimination after the Civil Rights

Act became effective and who thereafter sought referral

secured employment, and is now eligible to take a journey- °

: = | be

: ge)

man wireman’s exam for classification in the highest

- priority group of the referral system, which classification

carries with i the right to apply for union membership. ,

This Court continues to retain jurisdiction ‘der the ques-

tion of the journeyman wireman’s exam, and the right to .

‘apply-for union membership attendant thereto, by. Vie.

of the pending motion directéd to that subject matter.

- With regard to apprenticeship, the, plaintiff has

proved that EJ AC selected apprentices in a discriminatory

manner prior to J uly 2, 1965. The post-Act evidenge, how-".

ever, does not establish that EJAC. engaged in an ‘inten-

“tional pattern and practice Of racial discrimination there-

afier, although the record raises a suspicion that such may——————

have been the case with regard. to the 1965 and 1966

apprenticeship classes. As to thése years, -each. of the

Négro applicants identified by the Government as having

_ been discriminatorily rejected was offered ihe opportunity

40 become an apprentice by the new union leadership: in’

1967. ak es

The Court will therefore enter an order enjoining the ©

defendant union from discriminating j in the operation and i

.administration of. the referral system, and- from: denying ~

~ equal employment opportunities to all persons with re-

gard to the referral system, and also requiring strict ad-

herence to the collective: bargaining agreement provisions

relating to the referral system. The: said order will also

‘provide for retention of jurisdiction | over ‘defendant.

' Local 38’s motion of January 17, 1969 pertaining to the —

issue of the journeyman wireman’ S-exam, and all: issues.

pertinent thereto. ;

This Memorandum is adopted as Findings of F act and-

Conclusions of Law, in: accordance with Rule 52 of the - ee

Federal Rules of Civil Procedure. _— ‘

=

a;

: United States Disprict Judge.: f

= ee

APPENDIX. SS

SUPPLEMENTAL OBINION OF THE DISTRICT CourT.

NITED STATES DISTRICT COURT.

Nortiern District oF Onto, :

- Eastern Division. ® -*' : o

No, C61-515., Se ee )

“UNITED STATES: OF AMERICA, mn

Plaintiff,

Vs.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL

WORKERS, LOCAL NO. 38, $s

ELECTRICAL JOINT APPRENTICESHIP’ AND -

TRAINING COMMITTEE,” ~~

Defendants.

See Se ~ (March-2t 1969. )

GREEN, District Judge: —Subsequent to the trial of.

the within action the defendant local 38 stated its intention

to proceed with administr ‘ation ‘of an examination to non-

union members working under its referral system. Those

electricians who passed the examination would be placed

in Group I of the referral system, and would thereafter -

Be entitled to apply: for journeyman, membership ‘in the

\, union.

\__When-the eee SO en a aE SPR tact ars

i that the union intended. to proceed with the test, a motion _

was filed to restrain the union from going forward. That

motion was granted, with leave to the union to reapply

‘* to the Court for permission to give the test at a later date.

¢

| | ee ee

Cr . ‘* ee

On January 17, 1969, the union filed a motion: dé-

nominated “Motjon to dissolve restraining order” which

sought leave to proceed with the test. = jy. *

e _In'the memorandum opinion and order on the prin-

cipal issues of. this.action the Court retained jurisdiction

‘over the case for the purpose of ruling on the said motion

and“ all issues pertinent thereto. -The subsidiary issues

relevant to this matter pertain to certain conditions pro-

posed by the Government as to eligibility to take the test .

~ and the rights to be accorded those who were successful.

In passing the examination.

’ As indicated in the Court’s memorandum opinion, the .

Court believes that the union . i forward in giving

~ the examination. It.is the pro

‘al matters pertinent

thereto that must be resolved at this time. — <

Having reviewed the proposed notice of examination

prepared by defendant Loeeal 38, the Court finds that it is

basically adequate. There are. however, two changes

which‘will be ordered incorporated therein.

The concluding sentence of the first paragraph of the

proposed notice will be ordered amended to read:

Further, only members of Group 1 are eligible to

apply for journeyman membership in ‘Local 38 in

“accordance with Articles XXI and XXII of the.

IBEW Constitution and Article XII of the By-Laws

of Local 38. oe ; :

Such revision is necessary .to fully apprise test candi-

dates of the possibility of achieving union membership

through the referral system.

Although the examination notice as submitted by th

union does advise the applicant of his appeal rights, it does"

not reflect that the applicant will be given -access to his °

graded examination sheet .if he should fail the test. The

Court believes that such right is necessary. It will there-

_s

<

ae ; . 72 reer Pg?

fore be ordered left such right be granted, and that the

first two lines of the concluding paragraph’ be amended by

striking the words “and feel you have any complaint

_ against it’s conduct or it’s content” and by the insertion ©

of. the following in place’ thereof:

.

“yeu may review nie gkaded examihation papers, and

if you. thereafter-desire ‘asreview—of the conduct or

"content. of the examination of the grade which you

received thereon. en

Turning now to ta Gover nment’s ‘of -oposals pertinent

to this matter, the Government, in essence, suggests a’

waiver of the’ experience under the collective, bargaining a

agreement as a prerequisite ‘for ‘eligibility togtake ‘the. '

examination and that Negroes who pass the examination ' :

’ be admitted to union membér ship ‘based theréorr without

_the necessity-of a i vote of the membership.;

As to the waiver of eligibility requirements, the proof

established. that. all Negroes who were. the subject ae

" specific discrimination regarding referral are now eligible

to'take the ex xamination. Thera are, in addition, a sub-

stantial number 6f-other Negroes presently eligible to take

the examination’ who were not shown to have been. dis-

" criminated against.

As to the direct admission to inembership, ‘the Court

has previously found that plaintiff has failed to prove that

i

|

SS os

_ the defendant. has utilized gener al membership votes 2 as a.

J

es device.

Based ¢ on the Court's findings on ‘the merits: herein.

the Cont does not believe that the action requested by the,

~Goverriment is either necessary or’ warranted, If it should

hereafter develop that there appears to be.a- pattern or

-. practice of discrimination with regard to admission: to:

membevship as — to persons Placed in ane I, that. -

e

+,

.

a ee

| 73 3

- _ problem can bes dealt with, when it arises, pur should not

~ be agticipated at this time. [

ier

The Government also seeks a éontinuing, order re-.>

quiring the union ‘to submit for prior appro al the pro-

posed examination jand the procedures, relevant thereto,

That request will. be denied.’ |

Finally, there is the matter of the ¢ time] for the giving * re

‘of the examination. The; Court will order: the examination

given no sooner than 36 days from’ entry ‘of the order on

this motion, and no later, than ninety days thereafter. -

The notice to applicants shal! provide fora 30 day period”

between the date of notice and the date of examination.

_ These time ienitations ill permit the. defendant anion.

é

. adequate time—te—prépare and distribtite the required

notices, and should pr avide amiple opportunity for: those

_ wishing to take the examination to prepare for same.

: 4:

APPENDIX D. .

_ OPINION OF THE COURT OF APPEALS.

} ‘No. 19658.

UNITED STATES COURT OF APPEALS”

| FOR THE SIXTH CIPCUIT. _ .

UNITED STATES OF AMERICA” °

Plaintiff-Appeilait,

Vi

INTERNATIONAL BROTHERHOOD. OF ELECTRICAL

cit ‘WORKERS LOCAL .NO 38; ELECTRICAL JOINT AP-

PRENTICESHIP AND TRAINING COMMITTEE,

_Defendants-Appellees. ,

i,

- APPEAL FROM: THE “UNITED Stina DistTRICT Courr FOR

- THe NorTHERN District OF siriek EASTERN Division.

“Decided and F iled J a 19. 1970.

es

\ Hiefore: pace Chief Judged howanne and. PEck, ,

Circuit Judges. ¢ €' ae

Epwarps, Cir cuit Judge. On July 2, 1964, the follow-

ing federal statute, was adopted . as a | part of the Civil z

‘Rights Act of that tear: + hy “

~.“(c). Labor orga ization practices.

“It shall be an ‘unlawful employment practice ‘for,

“a labor organization=-

“(1) to exclude or to expel from its membership,

or Otherwise to discriminate against, any individual

because 6f his race, color. religion, sex, or national

origin; - wails

75

_ “(2) .to limit, segregate, or. classify its member-—

ship, or to classify or fail to refuse to refer for em-. -

ployment any individual, in any way which would

deprive or tend.to deprive any individual.of employ-

' ment opportunities, or would limit such employment |

opportunities or otherwise adversely affect: his status

as an employee or as an applicant for employment,

because of such individual's race, color, religiori, sex, |

or national origin: or ;

—“(3)/ to cause’or attempt to- cause an employer to

discriminate against an godividual in violation of this

section. * ieoeee

“(d) Training programs. ‘ oN ,

+. It shall be an unlawful employment practice for’

management committce controlling apprenticeship or

other training or retraining, including on-the-job

training programs to discriminate against any indi-

vidual because of his race, color. religion, sex. or.

national origin in’ admission tc, or employment in. .

any program established to provide apprenticeship or

“other training.” 42 U.S.C.*S$ 2000e-2(c) (19684) -

These provisions became effective as to this union

July 2, 1965. 42 U.S.C. § 2000e-(e) (1964).

'-- In the-opinion which decided the instant litigation in

the United States District Court for -the Northern District

of Ohio, Eastern Division, the District Judge included a °

table showing the ra¢ial composition of the membership

of defendant Local 38 of the International Brotherhood of

_ Electrical Workers. That table follows: 3

Date a White = Negro

“Jan1, 1957 1049 0

- Jé. 14,1960. © 1101 3

“Jan. 11,1965 1292 2

July 1, 1967 - 1316 2

Oct. 1, 1967 _— 1329 3,

Sept. 25,1968 . . 1331. 4

<

76

The Attorney General of the United States initiated

this suit under Title VII of the Civil Rights Act of 1964, 42

U S.C. $$ 2000e:2000c-15 (1964), as amended (Supp. IV.

1965-68), on August 8, 1967. The complaint alleged that

in violation of the statute just cited, defendants had en-

gaged in and were engaging in racial discrimination by

excluding. Negroes from unien membership and by dis-

criminating ‘against them in the union-operated work re- .

ferral system, in the joint union-contractor apprentice

program, and in the contractorpaffiliation program. De-

fendants denied these charges generally, and specifically.

’ denied any such discrimination alps the effective date of

"ithe Act.

- The District J aden found that there ‘had been an his-

toric pattern of rakial discrimination in the operations of

Local 38 and the Electrical Joint Appreit’ eship and

_ Training Committee (EJAC):; that such discriminatory

pr actices had continued after the effective date of the Civil

Rights Act in the union-operated employment referral .

+ system that while. there was evidence that raised a

theca suspicion” of discrimination in the apprentice

selection process follow ‘ing the effective date of the Act,

such evidence was insufficient to support, a positive finding

of discrimination; and that’ the evidence did not support

findings of post-Act discrimination in relation to union

_membership and contractor affiliation. He further found

‘that under a new union local leadership, which came into

office after the filing of the complaint in this case, all

discriminatory practices had stopped as a result of good

faith efforts on the part of the new administration of the

+ local.to follow the Act. The District Judge entered a judg-

ment enjoining ‘any @ontinuation of discriminatory prac-

tices in the referral system.. He specifically refused to

.order affirmative relief Mesigned to alleviate the continu-

.

77

ing effect of. te past discriminatory practices. He also

* refused the government’s request ‘that the court retdin,

jurisdiction of the case, | ae

The government has appealed, contending primarily

that the relief afforded was inadequate to ellectuate the

| purposes of the Act. We reverse.

The District Judge in’ an 87-page opinion analyzing

this case, relied heavily upon United States v. Sheet Metal

Workers Int'l Ass’n, Locat 36, 280:F. Supp. 719 (E.D. Mo.

-1968). This ease, which dealt with similar claims of dis-

criminatory practices on the part of an IBEW local in St.

Louis - (as well as a Sheet Metal Workers Local), has now

been reversed in-a-decision of the United States Court ‘of

Appeals for. the Eighth Circuit, United States‘ v. Sheet

- Metal Workers Int'l Ass’n, Local 236. 416 F.2d 123 (8th

Cir. 1969). We believe Judge Heaney’ S opinion r¢presents

a-sound interpretation of the critical sections of the Civil

Rights Act of 1964 and regret that the District pease did |

not have the benefit of its reasoning. |

a

a

STATEMENT OF-THE CASE.

Fhe defendant local union (Local 38 of the IBEW) is

a construction trades union w hich has jurisdiction over

the electrical trades in the construction industry in the

area of Cleveland, Ohio. Defendant, Electrical Joint

Apprenticeship and -Training Committee. is a union-

management controlled commitiee which operates a train-

ing program for electrical trade apprentices in the same ;

area. The union and the industry each have three mem- =

bers on the committee which controls apprentice selection

and training. It operates in the union hall..

Local 38 has about 75‘." of the construction industry

in the Cleveland area under contyact and by union-

industry agreement it operates a hiring hall and referral]

a oe

. 78

system for the o1 rggnizecd portion of the Diaiectiy. Under |

its referrat practices and the collective bargaining agree-

ment, all eligible journeymen electricians who are mem-

bers of Local 38-are referred out first before, any other

persons cesiring to work in the electrical trades are re-

ferred for jobs. —?

| There. are two methods of becoming a journeyman

electrician: The first is through acceptance in and com-_

pletion of the apprentice training program operated’ by

defendant EJAC. The sécond method of becoming a jour-

ney man is by taking a journeyman’s examination given by

the union. Ne such examination had been given except in

the year 1959, when it Was i :dministered te 24 white appli-

cants, all of whom failed.” ;

The complaint filed by the: United States alleged a an.

historic practice of discrimination against Negroes in re-

- lation Yo selection of apprentices; in work referral. and in.

union membership before the effective date of t the Civil ee

Rights Act of 1964. It also alleged that these distrimina-

tory practices continued in. somewhat altered form there-_

after.

The District jules found that prior to y= effective

date of the Civil Rights Act, both defendant Local 38 and

defendant EJAC discriminated against Negroes on account

of race—the union in its work referral practices and its

membership admission practices, and the EJAC in its

‘selection of apprentices. —s :

_ As to poet Act practices, the District Judge ac found:

THE Mempersurp Ftnpincs .

“The Government contends that as the union has

practiced discrimination in the past administration of

its a aaa lees classes that all Negroes over ap-

prenticeship age are forever excluded from member-

ship and that continued refusal to directly admit

* \

yer

fe ae ee

Negroes over apprenticeship age violates Section 703

(c)(1) of the Act, 42 U.S.C. S$ 2000e-2(c). This argu-

‘ment is not correct, for it ignores the realities ofthe - —

.. possibility of Negroes over apprenticeship age achiev-

ing membership’ through the referral System’... |:

__ “While the fact that there has been no such test

- for several years is true, the failure to administer —

such a test cannot be considered discriminatory.. It

was not until the summer of 1967 that any substan-.

tial numbers of Negroes began to work under the

jurisdiction of Local 38 through the referral system.”

_ A neW union leadership was elected in Junie of 1967,

virtually on the eve of the trial. “As to giving the test the

District Judge held that: . 4 re

>

“|T |hey determined ‘to do so at a time when there

were enough Negroes qualified to take the test under

the existing standards so as to make it meaningful as

a practical matter... . <a

“Tt would thus. appear that the. initial failure to

administer the test for Group One | resident journey-

meh|-status.sgbsequent to July 2, 1965 could not

havé affected the employment opportunities of Ne-

groes and that the fact that the test has not yet been

‘given is not racially motivated. While the fact’ that

there were not sufficient Negroes working under the

: were Local 38 to make the “granting of the:

examination meaningful may itself involve racial

_ discrimination, that. is-not the question here under

consideration and it will be dealt with in considering

the referral system. _ ee gy a shes

“It is therefore this Court’s conclusion that the -

_ plaintiff has failed to prove a pattern and practice of

racial discrimination on the part of Local 38 by its

<- + failure to date to administer the test for Group _

One which will open the doér for an application to’

journeyman membership. - eee Se

“Were it not for-the fact that the defendant union

lis pressing to go forward with the Group One test,

2

——————

80 :

the Court would issue an order requiring it to do so,

for a-continuing failure to administer such test would

constitutera diser iminatory ae remediable under

‘Title VIL.

Tue Work REFERBAL. FINDINGS

. “Although the*2-B [unskilled whites ‘category

was formally discontinued-as‘of June 1, 1965 plaintiff ©.

~ introduced ‘documentary evidence .indicating that

‘thereafter: Local 38 continued to refer men for work

who did not have the requisite experience. Exhibits

were introduced containing. referrals of both white

members of other unions and white nonunion mem-

bers whose referral application, it is contended, did

not reflect one year’s experience as electricians. The

Court has examined thesg exhibits, and finds that

contained therein are'refefrals of unqualified whites,

although not all the documentation. therein supports

the plaintiff s contention. + :

“William Hirsch, who was a union business agent

up to July, 1967, admitted that iftthere was a demand

for help that he could not meet with qualified elec-

~“tricians he would refer unexperienced persons. It

appears that men so referred would be used to ‘per-

form manual labor jobs. 7 )

“There is evidence in the record to indicate that

— 38 had engaged’ in discrimination in the ad- .

-ministéation of the referral system. The record fur-

ther indicates, however, that any discriminatory prac-

tices which existed in this area came to a complete:

stop as of July, .1967: At. that time new leadership

came into control of Local 38 as a result of an election

‘held in June, 1967. The two principal officials who

assumed office were Richard Acton as Business Man-

ager and John Gilbert Steele as President. Mr. Acton

~ replaced all the incumbent business agents, who work

‘in the administration of the referral system, with his’

-own appointees.” :

81°

THE APPRENTICESHIP FINDINGS

“The Government’s attack upon the current selec-

tion procedures is not based on‘ an attempt $0 demon- .

strate discrimination in actual apprentice selection: as

_ was done for 1965 and 1966, but is rather predicated

on the proposition that the procedures are essentially

subjective and discretionary, and are inherently dis-,

criminatory. It is argued that: |

“It is of particular importance, then, ir the.

light of the EJAC’s long history of racial discrimi-

nation to ensure that the current selection system

is objective and reviewable. For in these circum:

stances a discretionary system constitutes an un-

lawful vehicle for further discrimination.’

“In summary, the plaintiff has sown a generally

discriminatory approach to apprenticeship by EJAC

prior to July 2, 1965. Although the evidence for the

years 1965 and 1966 would 'support a strong suspicion

of racial discrimination, the plaintiff has failed to

prove an actual pattern and practice of discrimina-

_tion continuing beyond July 2, 1965. Consequently,

the plaintiff is not entitled to a finding in-its favor, °

with a mandatory order directed to EJAC, on this

subject matter. 3 . | 3

“.. . It is the Court’s conclusion that their positive

actions in moving this union forward in the field of

' facial integration reflect their own personal convic-

, tions and do not represent matters of expediency to

develop a reeord for the courts.”

Dealing with the government’s. charge that Negro ap-

plicants were discriminated against in thé oral portion of

the examination given by defendant. EJAC, the District

Court held: . . a. as

“The. major evidentiary deficiency in this record

is the absence of evidence of the relationship between

_. the oral scores of the Negro applicants in 1965 and

1966 and the oral scores of a significant number of -

82°

white candidates who performed in a truly com-

parable manner on the non-6ral tests. Although the

Court has the fotal oral and non-oral secres for all

applicants in Ahe- August, 1965 and: August, 1966

classes, the détailed scoring is only available as to |

the Negro- candidates and the successful white candi-

dates, and,as between those two, groups there is not .

a sufficient identity of performance on the non-oral

- side of the tests, when considered in their details —

rather than as total grade, to make a meaningful com-

parison. If this. record contained evidence’ that’ a

- significant number’ of whites received substantially

‘higher oral grades than-did the Negro applicants de-.

' spite the fact that’ the two groups performed-in a

reasonably comparable fashion’ on the non-oral tests.

that would provide evidence of discrimination., The

Court has found no such proof in the: record.” _.

_. APPELLATE ISSUES: ,

| Appellee took no cross-appeal and appellant presents Fete

only two issues: (|

(1) Whether the district court erred in ruling:

that, despite their traditional practices of denying

~. membership and referral fo Negroes because of their

race, defendants may now follow referral and .ad-

missions practices which, although racially neutral

on their face, perpetuate the effects of past discrimi-

_ nation and result in the present and future denial of

employment opportunities to Negroes which are equal

to. their similarly qualified white contemporaries,

_ (2) Whether; having found that: defendants en-

gaged in unlawful racially discriminatory employment

practices up to the eve of this. lawsuit the district ©

court erred in failifg to grant any, specific relief, and . 3

. in refusing to retain jurisdiction and to require the

‘- ~ submission of reports and maintenance of records to

insure compliance with the law.”) :

*

_*

7 =

; 83

. .. We answer both of these questions in the affirmative, :

In addition to. relying strongly upon the now over-

ruled. District Court opinion in the Sheet Metal Workers

, _ Case, supra, the District Judge relied heavily upon a pro- ©

vision in the Civil Rights Act of 1964: = .°. .

te) Preferential treatment not to be granted on ac-

: count of existing number or percentage imbal- ° ©

ance a ee fae

“Nothing contained‘in this subchapter shall be in- -

_ terpreted to require any employer, em loyment

_ agency, labor organization, or joint labor-management

committee subject to this. subchapter‘ to grant pref-

erential treatment to any individual or to?any group

Ye because of the race, color, religion, sex, or national

os __ Origin ef such individual dr group: on: account of an

Bee imhalance which may exist with respect to the total

, number or percentage ‘of persons of any race, color,

. religion\ sex, or national ‘origin employed by any

% employer, referred or classified for employment. by |

_ any employment agency or labor organization, ad-

* mitted to membership or classified by any labor. or-

ganization. or admitted to. or employed in, any ap-

prenticeship or other training program, in comparison »

with the total. number or percentage of persons -of

such race, color, religion, sex, or national origin in

any community, State, section, or other area, or in»

| ~ the available work force in any community, State,

section ‘or other area.” 42 U.S.C. § 2000e-2(j)

(1964). | anh _ .

_ We believe this. section prohibits interpreting the

statute to require “preferential treatment” solely because

of an imbalance in racial employment existing at the ef-.

fective date of the’ Act. But we also believe that its. pro-

hibition must be read in conjunction with the funda-

mental purposes of the statute (see 42 U.S.C. § 2000e-2 (c)

+

wey

nein os he XA

: . 84 | le

(1964) aboye) ind in conjunction with: the section pro-

viding for affir mative’ relief: 7 a

$ 2000e- 6. Civil actions by the Attorney cseneent..

‘(a) Complaint.

“Whenever the Attorney lisiasaia’ has siidiaaitibe-

cause to believe that any person or group of persons

is engaged in a pattern or ‘practice of resistance to the:

full enjoyment of any of the rights secured by this

- subchapter,-and that the pattern or practicé is of such

a nature and is intended to deny the full exercise of .

the rights herein described, the Attorney General’ may

bring a civil action in the appropriate district court

.of the United States by filing with it a complaint (1)

signed by him (or in his absence the Acting Attorney 3

"8 General), (2) se tting forth facts pertaining to such

pattern:or practice, and: (3)° ‘requesting such, relief, 7

- including an application for a.permanent or tem-

_ porary injunction, restraining order.or other order

against the person or persons responsible for such pat-

tern or practice, as he deems necessary to insure the .

full enjoyment of the rights herein described.” 42

U.S.C. S 2000e-6 (1964). (Emphasis added.)

When the stated purposes of the Act and the broad

affirmative relief authorization above are read in context

with § § 2000e-24 j), we believe that section cannot be con-

strued as a ban. on affirmative relief against continuation

- of effects of past discrimination resulting from present

‘practices. ( neutral on their face) which have the pre actical

effect of continuing past injustices. —

_ Any other interpretation would allow. complete nuilli-

fication of the stated purposes of the Civil Rights Act of

1964. This could result from adoption of devices such as a

limitation of new apprentices to relatives of the all-white

membership of a‘ union, Int'l Ass’n of Heat & Frost In-

sulators & Asbestos Wkrs., Local 53 v. Vogler, 407 F.2d

wis ae

oo.

ena

\.

refi

85 oe

1047 (5th Cir. 1969), or limitation of membership to per- |

sons who had previous work experience under union con-

_ tract, while such experience was racially limited to whites,

United Papermakers & Paperworkers, Local 189 v. United —

- States, 416 F.2d 980 (5th Cir. 1969), or administration of

qualification examinations which had no objective stand-

ards and which produced unexplained discriminatory re- .

sults. United States v. Sheet Metal Workers Int'l Ass’n,

Local 3g, 416 F.2d 123 (8th Cir. 1969).

ative relief, he did’ reject it in this case. In addition,

he squ rely refused to. require Local 38 to take appropriate

steps to make known to eligible Negroes-in the Cleveland

area that its reCognized pre-Act discriminatory practices in.

membership, in work referral,.and in -admittance to. ap-

‘prentic® training had ended. — } oe

~ Dealing with a record containing findirigs of pre-Act

discrimination only, the Eighth’ Circuit said in the Sheet

Metal Workers case: -.

/

“It is equally clear that Local 36 did not permit

: Negroes to take a journeyman’s examination, to join

the Local, or fo use its hiring hall prior to 1967. The

Local built the discriminatory practices into its em-

ployinent referral system by. negotiating a new system.

of referring persons for employment by priority

\groups, and by giving preference to those who had an

‘Opportunity to. gain experience under the collective | °

. bargaining agreentent and in the industry prior to |

it? effective date.

- .In our ‘view, neither Local can be permitted to: -

_ continue to operate its employment referral systems

- without change. Both plans effectively operate to de-|

-prive qualified Negroes of an equal opportunity ‘for ~

employment as journeymen electricians or- as sheet

metal workers. Because the plans carry forward the

: effects of former discriminatory practices, they result

=

‘

3

4

- .While the District Judge did- not in theory reject all

86 OC

in presént and future discrimination and are viola-

tive of Title VII of the Act.” »

- “We recognize that each of the cases cited in n. 15

to support our position can. be distinguished on the

_ ground that in each case, a number. of known mem-:

bers of a minority group ‘had been discriminated

against after the passage of ‘the Civil Rights Act.

ere, we do not have such evidence, but we do-not be- _

lieve that it is. necessary. The record does show that.’

qualified Negro tradesmen had* been and: continued

to be residents of the area. It further showed that

they were acutely aware-of the Locals’ policies toward —

minority groups. It is also clear that they knéw that

even if they were permitted to use the referral system

and become members of the union. they would have.

to. work for-at léast a year before they could move

into a priority group which would assure them rea-

sonably full employment. In the light of this knowl-

edge, it is unreasonable to expect that any Negro

ae

wh i Lokal’ 189, United Papernakers and Paperworkers;

' AFL-CIO, United'.Papermakers and Paperworkers,. AFL-

CIO, CLC; and Crown Zellerbach Corporation v. United

States of America, 416 F.2d 980 (5th Cir.'1969), aff’g. United

States by Clark v. Local 189,United Papermakers and Paper-

workers, 282 .F. Supp. 39 (D.C. La: 1968); Local 53 of Int.

Ass'n of Heat & Frost I. & A. Wkrs. v. Vogler, 407 F.2d 1047

(5th Cir. 1969), aff'g Vogler v. McCarty, Inc., 294 F. Supp.

368 (E.D. La. 1968); N.L.R.B. v. Decal 269, Internat’l Bro. of

Elec. Wkrs., 357 F.2d 51 (3rd Cir. 1966); Dobbins v. Local -

212, Intefnational Bro. of Elec.-Wkrs, 292 F. Supp. 413 (S.D. .

Ohio 1968); Quarles v. Philip Morris Incorporated: 279 F.

Supp. 505 (E.D. Va. 1968). Contra, Griggs uv. Duke Power

Company, 292 .F. Supp. 243 (M.D.N.C. 1968); U.S. v. In-

ternational Brotherhood of Electrical Workers; Local ‘39, 71

L.R.R.M.:2087 (1969); US. v. Ms aigrgr ag Brotherhood of -

Electrical Workers, Local 38,70 L.R.R.M. 3019 (1969). The

_ ~ Dobbins Court, at 445, said: ost a tinct eee aan ata

“‘A policy of giving’priority in work referral to persons

- who have experience under the “Local’s Collective Bar-

gaining Agreement is discriminatory when competent

[Negroes] have previously been denied the -opportunity

to work under the referral -agreement by reason of their

4 Wie. s.

Ore se ts Se nits tae ores gee

tradesman wor king for a Nesr 0 contractor or a non-

~ construction white employer w ould seek to use the re-

ferral systems or to join either Local.”

United States.v. Sheet. Metal Workers Int'l Ass'n,

Local 36, 416 F.2d 123, 131-32, (8th Cir. (1969).

It is important, however, to note that the record of ,

this case shows two years of discriminatory practices after

the effective date of the Act. | “

As of'the date of the. complaint in this case, defend-

ant union had 1,318 members, of whom two were Negroes.

On that date it had 255 apprentices, of whom three were .

Negroes. And in .the pr eceding year it had referred 3,487

persons for work in‘the electrical trades through its hiring

. hall, of whom only two were Negroes. |

The District Judge found that the evidence suppor ted

the gover nment’s, claims of discriminatory practices ex-

tending up to and-beyond the date of the filing of this com-

plaint. aS

While he limited specific findings of discrimination to

the union’s referral practices, these’ practices controlled

absolutely who got jobs in the or ganized electrical trades

--. in the Cleveland area. The record discloses that 75°; of all )

- electrical | construction work in the Cleveland area was’ |

done under Local 38's: contract. .

These facts (and the above-stated difference of inter-

me pretation of 2000e-2(j)) require vacation’ of the ‘pro forma

judgment entered by the District Judge and remand for

consideration of appropriate affirmative relief. We feel

that this view represents the great: weight of authority:

among the federal courts which have as yet dealt with this.

type of problem. United States v: Sheet Metal Workers —

Int? l Ass’n, Local 36,416 F.2d 123 (8th Cir. 1969) ; United

Papermakers & Paperworkers, Local 189 v. United States,

416 F.2d 980 th Cir. 1969); United States 0. Hayes Int'l

4

: 88

Corp., 415 F.2d 1038 (5th Cir. 1969); Int'l Ass’n of Heat

& Frost Insulators*& Asbestos Wkrs., Local 53 v. Vogler,

407 F.2d,1047 (5th Cir. 1969); Dobbins v. IBEW, Local

212, 292 D, Supp. 413 (S.D. Ohio 1968); Quarles v. Philip

Morris, Inc., 273 F. Sepp. 505 (E. D. Va. 1968). See also

Griggs v. Duke Power Co., 420 F.2d 1225 (4th Cir. 1970).

We do not, however, wish to ignore the other factor

which played an important—perhaps decisive—role in the -

District Judge’s decision concerning affirmative relief in

this case. ;

As we have indicated, after this suit was filed by the

Attorney General, but before trial, a new administration

was elected to office in Local 38. The District Judge found

that the new Officers favor voluntary compliance with the

Civil Rights Act of 1964 and have taken steps to bring past

discriminatory practices.to an end. These facts, however,

do not in our opinion warrant the District Court’s refusal

to: retain jurisdiction of this case or its refusal of affirma.

tive relief. The record of compliance is very brief—par-

ticularly as compared to the long record of discrimination

—and even that: record has been written under the impact

of this litigation. Cypress v. Newport News Gen’l & Non-

sectarian Hosp. Ass’n, 375 F.2d. 648 (4th Cir. 1967).

Assuming, as the District Judge plainly did, and as we do,

that the new leadership is in utter good faith, it has no

‘mean task ahead in eliminating ingrained discriminatory “

practices of past decades. In many respects a more specific

court order, plus retention of jurisdiction, might serve to

support the stated objectives of the new administration of

Local 38. And, in any event, such relief is authorized by

the Act and called for in this record. United States v.

, Hayes Int'l Corp., 415 F.2d 1038 (5th Cir. 1969).

We do not at this-point seek to write the order or even

to specify an outline for it. The District ‘Court may find

ox

89

appropriate the forms of relief granted in the Sheet M etal

Workers case, supra, and in the Local 189 case, supra. See

also Dobbins v. IBEW, Local 212, 292 F. Supp.. 413 (S,D..

Ohio 1968). Or if the District Judge’s hopes (and ours) °

.prove well-founded, it may: be possible for these previ-

ously: adversary parties to agree upon and stipulate to

the measures needed to achieve defendants’ full compli-

ance with the Civil Rights Act of 1964.

The judgment of the District Court is vacated and this

_case is reversed and remanded for further’ proceedings 3

consistent with _— opinion. ‘

St ei | apes

| 90.

a _ “APPENDIX E.

JUDGMENT OF THE COURT OF APPEALS.

. (Filed June 19, 1970.)

UNITED STATES COURT OF APPEALS

; FOR THE SIXTH CIRCUIT’

No. 19,658, |

UNITED-STATES OF AMERICA,

Plaintiff-A ppellant,

a

4

VS.

INTERNATIONAL BROTHERHOOD § OF ELECTRICAL

LY WORKERS, LOCAL NO. 38 AND ELECTRICAL JOINT

APPRENTICESHIP AND TRAINING COMMITTEE,”

Defendants-Appellees,

Before:: Puiiutps, Chief Judge, ,

. Epwarps and Peck, Circuit Judges.

~

. JUDGMENT. .

APPEAL from the United. States District Court for the

Northern District of Ohio. | peed Sidire

Tu1s Cause came-on to be heard on the record from

the United States District Court for the Nosthern District '

of Ohio and was argued by counsel.

On CONSIDERATION Wuereor, It is now here ordered

and adjudged by this Court that the judgment of the said

District Court in this cause. be and the same is: hereby

vacated and the éase is reversed and remanded for further

proceedings consistent with the opinion. |

It is further ordered that Plaintiff-Appellant recover

from Defendants-Appellees the costs 6n appeal, as item-

ized below, and that execution

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