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UNITED STATES v. LOCAL 86

June 5, 1970

United States of America, Plaintiff,
v.
Local 86, International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, et al., Defendants


Lindberg, D.J.


The opinion of the court was delivered by: LINDBERG

LINDBERG, D.J.:

 I

 FINDINGS OF FACT APPLICABLE TO LOCAL 86, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL, AND REINFORCING IRONWORKERS

 1. Local Union No. 86 of the International Association of Bridge, Structural, and Ornamental Ironworkers (hereinafter Local 86) is a labor organization representing workmen in the ironwork trade. Its geographical jurisdiction includes King, Kittitas, Jefferson, Kitsap, and Yakima Counties; the south half of Clallam, Snohomish, Chelan and Island Counties and all projects spanning the Columbia River from Okanogan County to Benton County, all in the State of Washington. Its principal place of business is at 2800 First Avenue, Seattle. (Admitted Facts, par. 1)

 2. Local 86 is party to a collective bargaining agreement with ironwork contractors represented by the Seattle Northwest, Tacoma, and Mountain Pacific Chapters of the Associated General Contractors of America, Inc. The agreement is in effect through July 20, 1971. (Admitted Facts, par. 5)

 3. Local 86 has an exclusive hiring hall for contractors with whom it has collective bargaining agreements. The employer must call the union in order to obtain men; he can obtain men from other sources only if the union is unable to fill his request for men within 48 hours. (Pl. Ex. 39, pp. 5-6)

 4. Through its hiring hall Local 86 controls at least 90 percent of the employment opportunities in the building construction classifications of the ironwork trade in the Seattle and Western Washington area within its geographical jurisdiction. (Admitted Facts, par. 7)

 5. In January 1970 Local 86 had approximately 920 members. (Pl. Ex. 1; Pl. Ex. 246, p. 60; Pl. Ex. 245, p. 46) Local 86 has only one black journeyman member, Howard Lewis, who was admitted on September 12, 1969, pursuant to an order of the Washington State Board Against Discrimination. (Admitted Facts, par. 3, 4; Facts Not To Be Contested) Local 86 also has two black apprentices; John Ingram, who was admitted on October 10, 1969, and Early Johnson, who was first dispatched on October 3, 1969. (Admitted Facts, par. 3, 4)

 6. In the operation of its hiring hall Local 86 maintains an out of work list for workmen seeking referral. (Pl. Ex. 246, p. 11) Local 86 uses the following standards and procedures in the operation of the hiring hall:

 a. Workmen who register for referral to jobs in the trade are given priority in the following order (Admitted Facts, par. 10):

 
A List: Members of Local 86 who have worked at least three years in the ironwork trade within the geographical jurisdiction of Local 86 (blue cards);
 
B List: Members of Local 86 or any other "outside" Ironworkers Local who have worked more than nine months in the ironwork trade within the geographical jurisdiction of Local 86 (green cards). An "outside" Ironworkers Local is a local union of the ironworkers which represents workmen in the building construction classification of the ironwork trade;
 
D List: Workmen not members of Local 86 or any other "outside" ironworkers local union (pink cards).

 b. The hiring hall operates from 7:00 to 10:00 a.m. (Admitted Facts, par. 10)

 c. When employers request workmen from Local 86, hiring hall union personnel offer the jobs to those workmen present in the hiring hall, first, by calling out the name of the contractor and the job location, and, second, by calling the names of the workmen, who have registered for referral, in priority order. When the name of a workman who is present in the hall is called, he may claim the job or decline it. (Admitted Facts, par. 10) There are two general exceptions to the foregoing procedures:

 
(1) When an employer requests a particular workman by name, the hiring hall will fill the request if the man has worked for that employer for six months out of the previous twelve months. (Admitted Facts, par. 10)
 
(2) When an employer requests a particular workman by name to act as a supervisor the hiring hall will fill the request regardless of the man's priority standing at the time. (Admitted Facts, par. 10)

 In addition to the two general exceptions above, union officials will also occasionally refer men to jobs without going through the normal referral procedure. (Tr. 125)

 7. There are three principal classifications of ironworkers: structural ironworkers; rodmen; and welders. Structural men erect and assemble steel beams and like components used in the construction of buildings and bridges. Rodmen (also known as rodbusters) work in the area of reinforcing concrete with steel bars and mats. Welders are responsible for welding various types of heavy gauge metals. (Tr. 24, 25, 112, 1215) Apprentices, irrespective of union membership, are dispatched on a ratio basis in accordance with the number of journeymen required on a given job. Their dispatch system is separate and independent from that of the other men on the out of work list. (Admitted Facts, par. 11)

 8. The applicable standards for membership set out in Local 86's constitution are anyone "versed in the duties of some branch of the trade . . ., of good moral character and competent to demand standard wages." (Pl. Ex. 37, p. 5)

 9. An individual may become a member of Local 86 in one of three ways: (a) direct admission to membership; (b) by transferring from a sister ironworkers local; and (c) by completion of the Local's apprenticeship program. (Tr. 1478; Pl. Ex. 37, pp. 70, 84)

 10. Persons seeking membership in Local 86 must have two sponsors who are members of Local 86 and who have been in good standing in Local 86 for two years. (Admitted Facts, par. 17)

 11. Howard Lewis and Jettie Murray were and are experienced black welders of journeyman capability who sought referral by and membership in Local 86. On the basis of the following facts, the Court finds that both men were denied referral and membership by Local 86 on account of their race:

 a. In 1962 Lewis obtained an application for membership in Local 86 but did not submit it as he was unable to find any union members who would vouch for him by signing his application. (Tr. 30-31)

 b. In 1966 Lewis made three attempts to join Local 86. On the first occasion he was given a June 1966 date for his examination. Lewis took time off from work and traveled approximately 175 miles to come to Seattle for the examination. However, he was not examined because he did not bring a withdrawal card to show that he no longer belonged to another union. Lewis appeared again in July of 1966. He gave the Board his City of Seattle Welder's Certificate and other welder's certificate papers, his withdrawal card from another union and a letter of recommendation from his superintendent. He was then asked how well he could tie knots. Lewis replied that he was not very good at tying knots. He was then informed that he could not become a member of the Union unless he knew how to tie knots. Thereafter, Lewis learned how to tie knots and in September 1966 returned a third time to Seattle from his job site some 175 miles outside of the city. At that time he was given a knot tying test. He was able to tie the first seven knots. He was then asked to tie a knot that he had never heard of before and when he told the Examining Committee that he did not know how to tie the knot, he was informed that he had failed the examination and could not become a member. The knot tying test was used as a device to exclude Lewis. Lewis decided against trying a fourth time. Shortly after his third attempt, Lewis was laid off from his ironworkers job. Upon numerous occasions after that, the Union refused to refer Lewis to employment on the ground that he was not unemployed. In March 1967, Lewis filed a complaint with the State Board Against Discrimination charging Local 86 with racial discrimination. Subsequently, Lewis was referred to jobs by Local 86 but the jobs were always of short duration. As a result of this treatment, Lewis stopped seeking referrals for employment by Local 86. On March 12, 1969, the Washington State Board Against Discrimination found that Local 86 had discriminated against Lewis on account of his race. The Board ordered Local 86 to accept Lewis as a member. Pursuant to the State Board's court order, Local 86 took Lewis into membership in September of 1969. (Tr. 22-50; Pl. Ex. 40; Facts Not To Be Contested)

 c. In May 1966, Jettie Murray applied at Local 86 for referral as a welder after having been advised that there was a need for welders in the ironworkers trade. He applied to the union on a regular basis for approximately three months but was always told that there was no work. On one occasion Murray contacted an ironworker employer directly about work, and upon instructions went to the union hall for dispatch back to the employer as per the collective bargaining agreement. William O. McGregor, Business Manager of Local 86, refused to dispatch him to the job. On another occasion, in June 1966, Murray presented his city welders certificate to McGregor. McGregor told Murray that he was not a welder and returned his city certificate to him. Murray never returned to the union hall. (Pl. Ex. 238, pp. 20-26) When Murray was seeking referral in May 1966 there was a shortage of welders which was so serious that one of the ironwork contractors sent a letter to the International Union requesting all types of ironworkers, including welders, after it was unable to obtain enough welders through Local 86. (Admitted Facts, par. 18) On June 3, 1966, Mr. Murray filed a complaint with the Washington State Board Against Discrimination. (Pl. Ex. 40, p. 1) In May 1967 he was notified to appear to take a membership test, and appeared before Local 86's Examining Board. He was asked to tie knots and to thread blocks. He told them that he wanted a welder's book and knew nothing about tying knots or threading blocks. He was then told that he had failed, and that he should go home, study knots and return at a later time. He was asked no questions concerning his welding abilities. (Pl. Ex. 238, pp. 32-34) Murray did not return to attempt to pass the test a second time. In the decision of the Washington State Board Against Discrimination of March 12, 1969, that tribunal found that Local 86 had discriminated against Murray on account of his race. (Pl. Ex. 40)

 12. In the past, Local 86, in the operation of its hiring hall, frequently dispatched for employment D list applicants in cases where A, B, and C list workmen were either absent from the hiring hall or declined the opportunity to accept a dispatch. (Admitted Facts, par. 12) In the summer of 1969, Local 86 at the direction of its International accepted into membership 35 of its Group D workmen (known as "permit men"). It also adopted a policy of limiting referrals to union members. (Admitted Facts, par. 13; Pl. Ex. 246, pp. 54, 60)

 13. On the basis of the following facts, the Court finds that in the summer of 1969 Local 86 offered referral and membership to whites who sought employment while at the same time denying referral and membership to Cornelius Bradford and William Bracy, black applicants, on the same basis:

 a. Prior to 1968 Local 86 did not require written examinations for journeyman membership. (Admitted Facts, par. 19) Commencing about March 1968, Local 86 has required workmen to take and pass a written examination prepared by the International Union in order to become eligible for membership. However, in June 1969 the International Union issued journeyman membership books to 35 workmen and the International Union assisted the workmen in completing the necessary application forms. These men did not pass the Local's test or complete its apprenticeship program. None of these men were blacks. (Admitted Facts, par. 13) Ten of these 35 men had previously taken and failed Local 86's examination, but were nevertheless admitted as journeyman members of Local 86. (Admitted Facts, par. 15, 16) The 35 men did not have to meet any minimum experience requirements. One of them, Walter Hall, had only six weeks experience in the trade at the time he was offered membership. (Pl. Ex. 89, pp. 2, 7) Another, Ray Wallace, had approximately nine weeks experience when he was offered membership. (Pl. Ex. 88, pp. 2, 5)

 b. Later in the summer of 1969, two whites who had been cleared as permit men in the past -- Rene Comeaux and Clifford Moon -- were told by Local 86 that they would be referred out to work on payment of $150 and $300 respectively. Comeaux was told to fill out apprentice papers and pay $150 in the beginning part of August; in July Moon asked to work on permit and was told that if he paid $300 he would be given a book and become a member of the union. (Pl. Ex. 287, pp. 5-7, 10-11; Tr. 125-128, 114)

 c. In June of 1969, at or about the time the 35 permit men were taken into the union and before Comeaux and Moon were offered referral and membership, two experienced black welders who had applied for referral -- Cornelius Bradford and William Bracy -- had their names on the Group D out of work list but were not offered membership or referral. (Pl. Ex. 239, pp. 7, 9, 12, 22, 24, 26-27, 30; Tr. 92-95; Admitted Facts, par. 10(a))

 14. Based on the following facts the Court finds that Local 86, on a continuous basis, has denied blacks the use of its hiring hall and has given them false information concerning employment conditions:

 a. A condition precedent to referral to an employer through Local 86's hiring hall is having one's name placed on the out of work list. (Pl. Ex. 246, p. 44; Admitted Facts, par. 10) Experienced black welders contacted Local 86's hiring hall on numerous occasions between 1965 and 1969 and were not furnished with any information concerning the operation of the hiring hall nor permitted to have their names placed on the out of work list. (Tr. 83-86; Pl. Ex. 239, pp. 23-24; Pl. Ex. 242, pp. 40-41, Tr. 84; Pl. Ex. 240, pp. 19-21; Pl. Ex. 241, pp. 38-40; Pl. Ex. 238, pp. 22-23)

 b. Experienced black welders seeking referral through Local 86 between 1965 and 1969 were told that no work was available. (Pl. Ex. 238, pp. 22-23; Pl. Ex. 243, pp. 16-18; Tr. 83-86; Tr. 92-95, Pl. Ex. 246, pp. 47-48; Pl. Ex. 239, pp. 23-24, 26-27; Pl. Ex. 242, pp. 40-41; Tr. 84; Pl. Ex. 240, pp. 19-21; Pl. Ex. 241, pp. 38-40)

 c. Employment conditions in the ironwork trade within Local 86's jurisdiction were in fact very good from 1965 through the latter part of 1969. This fact is reflected in a steady and substantial increase in the Local's membership during said period. (Pl. Ex. 5; 10; 11; 304; 303; 1; Pl. Ex. 246, p. 60)

 15. The following facts in conjunction with findings 13 and 14, above, indicate that whites with little or no ironwork experience have been referred by Local 86, taught their skills on the job, and offered journeyman membership without having to serve an apprenticeship, while blacks have been denied these opportunities on an equal basis:

 a. The bulk of the work which a rodman does consists in the placing and tying of rods on reinforcing jobs. The evidence establishes that the skills ordinarily required of a rodman can be learned and developed on the job in considerably less time than the two year minimum contended for by the union. (Tr. 113, 120; Pl. Ex. 285, p. 5; Pl. Ex. 244, pp. 6-7; Pl. Ex. 286, pp. 10-11, 30-31; Pl. Ex. 287, p. 4; Tr. 1514-15)

 b. Whites, some with little or no previous ironwork experience are able to obtain referral by and membership in Local 86 without going through any apprenticeship program: Walter B. Hall (Pl. Ex. 89); Ray Wallace (Tr. 118-121; Pl. Ex. 88); Rene Comeaux (Tr. 125); Clifford Moon (Tr. 113-14); Glenn Anderson (Pl. Ex. 244, pp. 3-4).

 c. Although blacks are permitted to have their names placed on the group D out of work list, no group D men have been referred out since early 1969. This has had the practical effect that no black journeyman has been referred other than Howard Lewis, who was initiated as a member pursuant to the ruling of the Washington State Board Against Discrimination. (Pl. Ex. 246, pp. 44-46; Tr. 114, 127-28; Facts Not To Be Contested)

 16. On March 2, 1970, Local 86 implemented certain changes in its hiring hall procedures as a result of a decree from the Ninth Circuit Court of Appeals. (Dft. Ex. B-3; Tr. 1469-71) The procedures adopted have not yet been approved by the National Labor Relations Board. (Tr. 1478-81)

 Based on the foregoing Findings of Fact regarding Ironworkers Local 86 the Court makes the following:

 CONCLUSIONS OF LAW

 1. Local 86 is a labor organization within the meaning of 42 U.S.C. § 2000e(d) and is engaged in an industry affecting commerce within the meaning of 42 U.S.C. § 2000e(e).

 2. The Court has jurisdiction over the subject matter of this action and the parties to it by virtue of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. The Attorney General is authorized under § 707(a) of that Act to institute suit to enjoin a pattern or practice of discrimination and request such relief as may be necessary to insure the full enjoyment of rights described in Title VII. 42 U.S.C. § 2000e-6(a).

 3. Defendant Local 86 has pursued a pattern and practice of conduct which has denied blacks, on account of their race or color, equal employment opportunities in the construction industry.

  II

 FINDINGS OF FACT APPLICABLE TO THE IRONWORKERS JOINT APPRENTICESHIP COMMITTEE

 1. The J.A.C. is an unincorporated body composed of eight members, of whom four are representatives of Ironworkers Local No. 86 and four are representatives of contractors party to a collective bargaining agreement with Local No. 86. (Admitted Facts, par. 2)

 2. The J.A.C. administers and controls the apprenticeship program in the ironwork industry within the jurisdiction of Local 86 and determines which persons shall be admitted to this program. (Admitted Facts, par. 3)

 3. There are currently 49 apprentices indentured in the ironwork apprenticeship program, of whom two are black: John Ingram was indentured in November 1969 and Early Johnson was indentured in December 1969. Ingram was first dispatched for employment in July 1969, and Johnson in October 1969. (Admitted Facts, par. 4) These two blacks are the only ones who have participated in the program since April 1967 (Tr. 235; Pl. Ex. 34), and so far as the record reflects, they are the only ones ever to be in the program. (Tr. 235, 240-41)

 4. Between June 20, 1968 and January 9, 1970, 19 blacks have applied to the program. (Admitted Facts, par. 13; Pl. Ex. 23, 32) The applications of these 19 blacks were taken after A.A. Scales, Business Representative of Local 86 and Secretary of the J.A.C., pledged the J.A.C. to a policy of non-discrimination. This pledge was in the form of a letter sent in connection with two charges of racial discrimination by the union pending before the Washington State Board Against Discrimination. (Pl. Ex. 36) of the 19 black applicants, only two were accepted. (Admitted Facts, par. 14)

 5. The following facts indicate one of the procedures by which the defendant J.A.C. has discouraged or attempted to discourage blacks from undertaking and/or pursuing their applications.

 a. Mr. A. Sonn has been coordinator of the J.A.C. since April 1967. Prior to that time, there was no full-time apprentice coordinator. (Admitted Facts, par. 13) Applicants normally fill out their applications in Mr. Sonn's presence, and Mr. Sonn's duties include briefing applicants to the program. (Tr. 150, 193) Mr. Sonn testified that on occasion he has told black applicants that they would be "Jackie Robinsons." (Tr. 1206)

 b. Gregory Buford, a black, visited the Ironworkers J.A.C. office in 1968 and began filling out an application. (Pl. Ex. 21) Before or as Buford filled out his application, Mr. Sonn (Tr. 245) told Buford in effect that ironwork was a good field of work, but that he did not know if blacks could handle it. Subsequent to this remark Buford crumpled his application, threw it in the wastebasket, and left the office, feeling that he had no chance of getting into the program. (Tr. 181-84) He did not pursue his application further. (Tr. 183-84)

 c. William Collins, a black, applied to the apprentice program on April 22, 1969. (Pl. Ex. 20) He had been referred to Mr. Sonn by the Washington State Employment Service. (Pl. Ex. 23(1)) Mr. Sonn (Tr. 1222) told Collins that if he passed his aptitude test he would have to go before a Board. He then stated in effect that the Board would give Collins a hard time because he was black. (Tr. 178) Collins did not pursue his application any further. (Tr. 179)

 6. Applicants to the ironworkers apprentice program are interviewed by the J.A.C. and are awarded up to 100 points. According to the J.A.C.'s published standards, applicants receiving over 70 percent are then placed on a waiting list and called for work in chronological order. Thirty percent of the maximum number of points an applicant can receive is based on the interview; 10 percent is based on past experience in the trade; 10 percent is based on references; 15 percent is based on education; 10 percent is based on the physical exam; 15 percent is based on test scores; 5 percent is based on residence (Geographic Jurisdiction of J.A.C.); and 5 percent is based on Military Service. (Admitted Facts, par. 8)

 7. Fifty percent of the points which can be awarded under this system -- 10 percent for past experience, 10 percent for references, and 30 percent for oral interview -- are based on subjective, non-reviewable determinations by the J.A.C. for which there are no set standards. (Tr. 225-227)

 8. Prior to November 1968, sons and relatives of union members were given an automatic five point preference under J.A.C. ...


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