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July 3, 1975


The opinion of the court was delivered by: FULLAM



 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. *fn1"


 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. *fn2" 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. *fn3" 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. *fn4" 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. *fn5"

 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. *fn6" 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. *fn7" 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. *fn8"

 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. *fn9" 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).

 The Standard Agreements do not require that an employer, when exercising its right to select workers from the list, hire union members before hiring probationary and 70%-helpers. The only requirement is that:


"An employer shall hire experienced mechanics and helpers who permanently live in the area, are seeking employment and are qualified to perform the work required by the employer before hiring a transient employee or a new inexperienced employee." New Standard Agreement, Art. XXII, para. 1(c).

 However, as would be expected, employers are usually interested in hiring union members, since generally these workers have had greater experience in the elevator construction trade.

 The procedures which existed before the effective date of the New Standard Agreement allowed Local 5 much greater control over the employers' exercise of their selection privileges. The Union kept only a "rough list" of men out of work, and would usually limit an employer's choices to the more senior workers. If there were both union and non-union men out of work, the employer generally received only the names of the union men from which to make its selection. (Under the New Standard Agreement, the employer has access to the full list of available workers.)

 Where the employer simply requests Local 5 to refer a worker, without naming him, the Union follows no hard and fast rules in determining whom to refer. It appears that officials of Local 5 base the order of referral sometimes on the worker's seniority in the industry, and sometimes on the date of the worker's last employment, with a large amount of discretion residing in the Union officials. It is fair to conclude, however, that union members are almost always referred for employment before probationary and 70%-helpers.

 b. Full Employment and New Permits.

 Local 5 will issue new permits when none of its members or permit men are out of work. In such a situation, if an employer needs to expand its work force on an outside job, and if it has in mind a particular prospect for the position, such as an employee working in its shop *fn10" or a friend or relative of an employee, the employer sends that person to Local 5 for a work permit. It appears that somewhere between 65 and 75% of all new probationary helpers attain their status in this way.

 In the remaining cases, the employer asks Local 5 to send it a new probationary helper, and Local 5 decides whom to recruit and refer. The Union keeps on file the applications for work permits submitted by persons seeking new employment in the industry. Local 5 has offered no explanation of the standards, if any, it uses to select applicants to fulfill employers' requests for new probationary helpers.

 Of the applications for work permits on file as of April 27, 1973, and filed before March 15, 1972, approximately 75% were from applicants who were either related to or recommended by a union member. Less than 4% of all the applications were filed by black persons.

 4. Layoffs and Seniority.

 Both the Old and New Standard Agreements require employers to lay off probationary helpers before laying off workers who have completed their probationary periods. This is the only restriction on the order of layoffs contained in the agreements. Among probationary helpers, a worker who has completed 5-1/2 months of his 6-month probationary period may be laid off before an employee with only a few days on the job. *fn11" Similarly, a union member with years of experience may lose his job before a member with less seniority. In fact, nothing in either Standard Agreement requires that a senior union member not be laid off before a worker who has recently completed his probationary period but not yet been initiated into union membership (a 70%-helper).

 However, officials of Local 5 generally do attempt to persuade employers to lay off union members with less seniority before members with more, and to lay off 70%-helpers before card helpers. These efforts -- a phone call or two to the employer -- often succeed, but not always. Union members enjoy no collectively-bargained seniority rights, except vis-a-vis probationary helpers.

  Statistical Data

 1. Membership of Local 5.

 When the instant action was filed, in March 1972, the total membership of Local 5 was 663. Of that total, only 6 members, or less than 1%, were black. *fn12" In January 1973, two black probationary helpers *fn13" were initiated into membership, and in August 1973, 12 new black members were added. Consequently, as of October 1973, by which time the local's membership had grown to approximately 700, the black membership numbered 20, or about 3% of the total membership.

 The 14 black members initiated in January and August 1973, constitute about 10% of the 135 men admitted to Local 5's membership between the date of filing of this suit and October 1973.

 2. Work Permits Issued by Local 5.

 As of March 1972, Local 5 had issued only 11 work permits to black men. Two of these were issued pursuant to Orders of the Philadelphia Commission on Human Relations and a Philadelphia Common Pleas Court judge. *fn14" Although the record does not clearly disclose the total number of work permits issued by Local 5 as of March 1972, it appears that between early 1967 and March 1972, approximately 215 men received permits. *fn15" It follows that the nine permits issued to black men represent, at most, 4.2% of all permits issued by Local 5 as of the date of filing of this action. The number of permits issued by Local 5 to white men and black men for each year between 1969 and March 15, 1972, is shown below: 1969 53 Total 53 Whites 0 Blacks 1970 107 Total 101 Whites 6 Blacks 1971 6 Total 4 Whites 2 Blacks 1/1/72 to 0 Total 3/15/72 0 Whites 0 Blacks


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