# Appendix — International Brotherhood of Electrical Workers, Local No. 38 v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0348%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1970 - **Citation:** 400 U.S. 943 ## Text ‘ __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 eo 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 | . . S é => er. : ; ° a 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 —. - = . ~. . 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- 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 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 ~ - ™~ “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 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 - => 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: 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 . 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 ; - 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. — 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 “|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... . — No. 420— | Rank = STEP II. Examination we all ieditnnihts Ayplication Rating Forms” to develop a combined rating for each of the’ four (4) Groups in the following categories: (See [page 38]) Lia a | CC) 1.: Educéiional Factors a. Mathematics Rating" b. Science Rating ~_ ¢, Education Rating 2. SINCLAIR, Timothy Appliiation No. 498—Rank . E. Whites in the Group classed as “Whites. Not” _ Selected.” 3 : x 96 2. Interview Factors WoT Aig . .. a. Interest ..b. Attitude — c. Personal Traits it Re A.. Anumerical scale was used ta provide a means of | averaging ratings given by all interviewers and to arrive ata combined rating for all applicants i in each Group. (See Chart. No. 1- C) > | 1. The Schesiaa scale pee was as follows: Each rating box on the form was given a number from - 1 to 5 from left to ak i.e., lowest rating to highest a rating. 3 2. Each applicant in each Group was given a combined rating based: upon all interviewers’ rating. (See Work Sheet Nos. |See pps. 39 thru 50|) ° When there. were: less than: six (6) interviewers present, a,correction factor equal to the average rating in | each factor was added to si an equivalent rating. s | (949) ‘3..-A total combined rating” was caletinted for each Group by adding the individual combined rat- ings. B.. The results of this examination dre as follows: : L. Whites Selected (See Work. Sheets. [pps 39 vate 40})..- +0. | ( Educational Vauors 275 (See + 1 Chart D Blue). | ‘Int rview Factors 298 ( See #1 Chart D'Red) _ :. Re Selected (See Work Sheets | 43 thru 44) fae Educational Factors 230 (See + 1 Chart D Green) Interview Factors 294 (See + 1 Chart D Red) “ 97 3. Whites ‘Not Selected (See Work Sheets i 46°. *, thru 47] ) Educational Factors 193 (See # 1 Chart E Blue) Interview Factors 264 (See #1 Chart E Red) 4. Negroes Not Selected = Work Sheets IPP 49 thru 50.| ) Educational Factors 229 ( thon + 1 Chart E Green) stile Factors 228 (See # 1 Chart E seein STEP III. The panrewye, ratings for each pha were “sel to determine their effect on ‘selection. os A. A Flow Diagram for all possible comparison was ' developed: (See following page) — (951) COMPARISON DIAGRAM | ok - ie * * B. The first comparison was made on Educational ‘ factors alone. ‘1. The. cothparison in eaieutiaeesd Ratings be. \ tween . Whites Selected and Whites Not Selected ‘Shows a paneer: of 82. (See # - 1 Chart D-Blue and E- Blue) Pee The comparison in Educational Ratings bis tween Negroes Selected and Negroes Not Selected shows a difference of only 1. See = i Chart .* Green and E-Green) . oe 3. The contrast on the first comparisen ated for an analysis of each transcript and the rating given for ‘each applicant, to determine whether or not Negroes had been discriminated against. (See ba ia [pp.“41, 42, 45, 48, 51]) ) a 98 (a) Result of the analyses of transcripts: There’ (952) was no discrimination against Negroes in the ratings given on Educational Factors. — 4. Further comparisons..of Educational Factors were made, but provided no. new information by .* eross-cOmparisons. C. The second group of comparisons was made | on In- terview Factors alone. . 1. The comparison in Interview Ratings between © Whites Selected and Whites Not Selected shows’ a difference of 34. (See + 1 Chart D-Red, E-Red) 2. The comparison in Interview Ratings between Negroes Selected and Negroes Not Selected shows ‘a . difference of 77. (See = 1 Chart D-Red, E-Red) 3. Result of this comparison: The information from this comparison is not significant within itself, . but will be used in the third comparison. 4. Other comparisons in Interview Ratings were made but provided no new information by other cross- comparisons. D. The third group of comparisons was made using both Educational Factors and Interview Factors. . 1. Combining both eamaid for Whites Selected | shows: _ x ’ OX: ‘ Educational Rating 275 (See +1 Chart D- | Blue) | , (953) ee Interview Rating 298 (See +1 Chart D-Red) _ : (a) The Interview Rating is higher by a factor of 23. 2. Combining both factors for Negroes Selected shows: ‘ <=} 99 Educational Rating 230 (See +1 Chart D- Green) Interview Rating 294 (See +1 Chart D-Red).. . ~ (a) The’ Interview Rating is higher by a ‘factor of 64. | 3. The Interview F actor ‘Rotinus helped. the. Negro more than they did the whites whén compar- ing the sélected Groups. (See +1 Chart D)*, E. A similar comparison of combined Education and -- Interview Factor Ratings was done ‘for the Not ‘Selected _ Groups with the following results: (See #1 Chart E) ° 1. Whites Not Selected (See +1 Chart E) Education Rating 193—Red ane Interview Rating 264—Blue | (a) The Interview Rating is higher by a factor of 71. : (954) - on 2. Negroes Not Selected e See #1 Chart E ) Education Rating 229—Green Interview Rating 228—Red (a) The Education ae is higher by. a factor of 1. : 2. ‘The Interview Factor did not help the ee as eth | as it did the Whites when comparing the Not | Selected Groups. (See #1 Chart FE) — The whites would have rated lower without in- | terview ratings, Negrges would have rated the same without interview ratings, but whites. were not se- is lected. ; “al @ 100 STEP IV. Whether the analy ysis of informatfon here in- - eates a Pattern or Practice of Discrimination against Ne qroes. "A. What are iy facts? 1. Ail. applicants inter viewed are qualified as to minimum® requirements, therefore equal at start of. Rating Procedure. _2. The study. of all transcripts and education in- formation conclusively showed no discrimination. | ‘(a) A further study of transcripts shows the ° key to the high Interview Rating given the Negroes Selected as.compared to the. somewhat lower Inter- view Rating given the Negroes (955) Not Selected. (See Work Sheets [pp. 45 & 51]) (1) Negroes Selected (See Work Sheet |p. 45]) All four (4) of these men had sufficient Mathematical background; one had a. very good background in Science. All graduated in the second quarter of their class. All had taken shop courses, Mechanical Drawing, and’ three took courses in Electricity and/or Electronics. (2) Negroes Not-Selected (See Work Sheet |p. 5}) _ All four: (4) of these men had sufficient Mathematical | background and sufficient’ Science background. Pe -- Two sraduated in the third quarter of their class. The class rank of two cannot be determin [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0348%3A1. Public record. Not legal advice.