OPINION AND ORDER
This action was filed by the Attorney General against the International Union of Elevator Constructors, Local Union No. 5, alleging that the local union has engaged in a pattern or practice of resistance to the full enjoyment of the employment rights guaranteed by Title VII of the Civil Rights Act of 1964 and has interfered with the implementation of Executive Order No. 11246. The Equal Employment Opportunity Commission has been substituted for the United States as plaintiffs herein, pursuant to the provisions of the Equal Employment Opportunity Act of 1972.
The thrust of the Government's case is that Local 5 has used its control of work opportunities in the elevator construction industry in the Philadelphia area to prevent blacks from entering or advancing in the trade, and, further, has interfered with the attempts of elevator contractors to meet the minority employment goals established by the Philadelphia Plan.
1. Local 5 and its Collective Bargaining Agreements.
International Union of Elevator Constructors, Local Union No. 5 (Local 5) is an unincorporated association of persons engaged in the elevator construction trade in the Philadelphia, Pennsylvania, area.1b Its principal office is in Philadelphia. As of October 1973, Local 5's membership totaled approximately 700 persons.
The members of Local 5 work for approximately 30 elevator contractors, a group which includes all the major elevator contractors in the Philadelphia area and which performs most of the work in the elevator construction trade in that area.
These contractors and Local 5 are, and since at least 1967 have been, bound by the terms of collectively-bargained labor agreements, negotiated by the International Union of Elevator Constructors on behalf of Local 5 and by the National Elevator Industry, Inc. (NEII) on behalf of the contractors.
The first of these agreements -- the "old" Standard Agreement -- was in effect from January 1, 1967, to March 24, 1972; the "new" Standard Agreement has been effective since March 24, 1972. Under the terms of these agreements, Local 5 is recognized as the exclusive bargaining representative for all mechanics and helpers engaged in the elevator construction industry within Local 5's geographic jurisdiction.
2. Worker Classification, Initiations, and Promotion.
Under the terms of the Standard Agreements, members of Local 5 are classified as mechanics or helpers. Helpers are paid 70% of the mechanics' rate. Generally, helpers are only eligible to become mechanics after they have completed two years employment in the industry and have passed an examination administered by a joint industry-union examining committee.
The Standard Agreements provide that, to be eligible for membership in Local 5, persons must have worked in the industry as probationary helpers for at least 100 hours per month for six months within a nine-month period.
Probationary helpers are paid 50% of the mechanics' rate during their probationary period. At the end of the probationary period, their pay automatically increases to the helpers' rate, that is, to 70% of the mechanics' rate. This step up in pay is unrelated to initiation into membership of Local 5.
It is Local 5's normal practice to admit into union membership all helpers who have completed their probationary periods whenever an initiation is held.
Initiations are scheduled by the union's executive board, which generally bases its decision about when to enlarge membership on its view of work and employment trends in the industry. The apparent aim of the union is to avoid taking in new members when large numbers of experienced union men are unemployed. In recent years, initiations have been scheduled once every year or 15 months.
3. Work Permits and The Referral System.
The Standard Agreements have required that all mechanics and helpers employed by the elevator construction contractors subject to the agreements be union members or hold union referral cards (also called "work permits") within 30 days of their employment. Thus, to work for an employer as a probationary helper, an employee must obtain a work permit from Local 5.
a. Unemployment in the Industry.
It has been Local 5's firm policy to refuse to issue work permits to new men at times when union members are out of work. Article XXII of the new Standard Agreement provides that before an employer can hire a new, inexperienced worker, the employer must first check with Local 5 to ascertain that none of its members are unemployed.
Where there are a number of union members out of work the employer has the right to name the particular member it wants Local 5 to refer for employment. If the employer expresses no preference, officials at Local 5 decide whom to refer.
The protection of work opportunities for union men, achieved through this system of controlling the flow of new entrants into the trade, extends beyond the members of the local union. Members of other locals of the International Union of Elevator Constructors may have their names added to Local 5's list of men out of work. If, for example, there is unemployment among members of Local 6 in Pittsburgh, the men out of work there can secure rights of first employment in the Philadelphia area.
Although there are obvious economic and psychological factors which limit the free mobility of workers from one part of the country to another, it remains a fact that the re-hire rights of union members are industry-wide in nature.
Probationary and 70%-helpers enjoy similar re-hire rights. With respect to the list of workers out of work, from which employers must make their selections and Local 5 must make its referrals, the new Standard Agreement provides that:
"The Union shall establish, maintain and keep current an open list for the employment of workmen qualified to perform the duties required. Such list shall be established, maintained and kept current on a non-discriminatory basis and shall not be based on or in any way affected by Union membership, Union Bylaws, regulations or constitutional provisions or any other aspect or obligation of Union membership, policies or requirements." New Standard Agreement, Art. XXII, para. 1(a).