The opinion of the court was delivered by: HIGGINBOTHAM, JR.
This employment discrimination suit was instituted in 1971 by twelve black plaintiffs on behalf of a class of minority workers involved in or desiring admittance to the operating engineer trade in Eastern Pennsylvania and Delaware. Also a named plaintiff is the Commonwealth of Pennsylvania, suing on behalf of its citizens and the above-described class. Defendants in this action are as follows: Local 542 of the International Union of Operating Engineers; a class assertedly represented by Glasgow, Inc., consisting potentially of more than 1400 construction contractors and employers receiving referrals through Local 542's exclusive hiring hall; four construction trade associations which represent the employers in contract negotiations;
and the Joint Apprenticeship Training Committee ("JATC"), an organization created by Local 542 and the trade associations for the induction of new operating engineers. This opinion constitutes the findings of fact and conclusions of law relevant to the liability stage of the trial of this massive and intricate case.
Of course, a very significant aspect of the instant suit is its class action status. As originally certified on March 13, 1972, plaintiffs' class was divided into the following subclass descriptions:
(a) all minority group members who currently have the skills, when measured by objective standards, of at least a journeyman operating engineer and who work, or may work, within the territorial jurisdiction of defendant Local 542;
(b) all minority group members who are partially skilled, when measured by objective standards, to perform operating engineers work and who work, or may work, within the territorial jurisdiction;
(c) all unskilled minority group members who wish, or may wish, to acquire skills in the operating engineers trade and who are physically capable of acquiring such skills and performing operating engineers work within the territorial jurisdiction of defendant Local 542.
Among a number of threshold issues in this case, I also have before me a request by plaintiffs to recertify plaintiffs' class as well as arguments against certification of plaintiffs' class as now constituted and as proposed by plaintiffs. These arguments by defendants, and several unnamed members of the defendant class which this court has permitted to appear post-trial as "nonparties,"
assert, Inter alia, the inadequacy of named plaintiffs as class representatives, the lack of standing of named plaintiffs, and the non-commonality and atypicality of issues, claims and defenses.
Other threshold issues before me now are plaintiffs' request for recertification of the defendant class so as to comport with the applicable statutes of limitations, and the request of non-parties for decertification of the defendant class of contractors. As originally certified on March 13, 1972, that defendant class now consists of:
(a) all contractor associations which are, or may be, parties to a collective bargaining agreement with Local 542, International Union of Operating Engineers; and
(b) all contractor-employers who are subject to collective bargaining agreements with Local 542, International Union of Operating Engineers, and who, pursuant to such agreements, employ or will employ operating engineers referred to them by defendant Local 542.
There are an assortment of objections to certification of the defendant class including the claimed lack of personal jurisdiction over the unnamed class defendants, plaintiffs' lack of standing to assert claims against a defendant class and the asserted inappropriateness of defendant class certification under rule 23(b)(2), F.R.Civ.P.
For the reasons expressed below I hold that this action is maintainable as both a plaintiff and defendant class action, given the modifications as will be set forth. Furthermore, we find the defendant 542, JATC, and the defendant class and associations liable injunctively.
The facts of the instant case, as detailed below, demonstrate the complexity and subtlety of the interrelationship of race, collective bargaining, craft unions, the employment process and that ultimate goal real jobs which offer adequate hourly compensation and reasonably consistent pay checks through the year. Here there are many contradictions between pronounced policies and actual practices. Also there are some aspects of viral nepotism at its worst which had a disproportionate impact against blacks but also affected many whites. Some of the practices cannot be categorized as exclusively beneficial to all whites or as exclusively harmful to all blacks. Thus there has to be a careful weighing of the relative racial impacts of many practices and policies.
Here we have not been confronted with policies which announce publicly doctrines of racial exclusion or segregation as has occurred in some cases in the nation's past where such doctrines were announced either by legislative fiat or by proclaimed union or corporate policy. See Griggs v. Duke Power Company, 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971); Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954); Derrick A. Bell, Jr., Race, Racism and American Law (1973); Sterling D. Spero and Abram L. Harris, The Black Worker (1931, reprint ed. 1968); Herbert R. Northrup, Organized Labor and the Negro (1944); Robert C. Weaver, Negro Labor (1946); H. R. Northrup et al., Negro Employment in Basic Industry (1970); Negro Employment in Finance (1970), vol. 2; Negro Employment in Public Utilities (1970), vol. 3; Negro Employment in Southern Industry (1970), vol. 4; Negro Employment in Land and Air Transportation (1971), vol. 5. See also House Committee on Education and Labor, H.R.Rep. No. 718, 89th Cong. 1st sess. 1965; Herbert Hill, "Racial Inequality in Employment: The Patterns of Discrimination," THE ANNALS 357 (January 1965), pp. 30-47. In some instances some of the union members seemed concerned about increasing the opportunities for minority members; yet more often than not there was discrimination on a more sophisticated and subtle level, even though the consequences could be almost as devastating as the most crude form of discrimination. At the critical level of viable jobs and equal opportunities, there were intentional and persistent efforts to exclude and discourage most of the minorities who, but for their race, would have been considered for entry into the union and for the more lucrative jobs.
Of course labor unions and the collective bargaining process are part of the American democracy. This process has improved dramatically the options of many. As Professor Archibald Cox has observed:
The purpose and effect of every labor organization is to eliminate competition in the labor market. Chief Justice Taft's classic statement observed:
Each bricklayer's local seeks to control the supply of bricklayers' services available to contractors within its geographical jurisdiction. United Steelworkers of America controls the supply of labor available to United States Steel Corporation. In this sense every union is an avowed monopolist.
Cox, Labor and the Antitrust Laws A Preliminary Analysis, 104 U.Pa.L.Rev. 252, 254 (1955) (footnote omitted).
Similarly, after quoting the above passage, Judge Aldisert has recently observed that:
"the very essence of the labor movement, as protected by the national labor policy, hinges on labor's ability to seek monopoly in appropriate spheres . . . ."
Muko v. Southwestern Pennsylvania Builders and Construction Trades Council, No. 75-979, slip op. at 6 (3d Cir., August 11, 1978).
Yet it is clear that by the nation's civil rights laws there are limits to which labor's "avowed monopolistic" powers can be extended. Here the union (with the involvement of the contractors) has gone beyond the "appropriate spheres" of national labor policy and consequently has breached the overriding civil rights laws. Tragically, blacks and other minorities seeking entry most often were not aided but instead were deterred by willful manipulation of the collective bargaining process. Measured by the actual results, the antidiscriminatory proclamations have proven to have been mere rhetoric. During his campaign for election as business manager Robert Walsh's platform was "fair play." Yet, during his administration viable, equal job options were most often denied to minorities, and those relatively few minorities who received the option were seldom granted the more lucrative long term jobs.
Many explanations are proffered for this despicable state of affairs. Some assert that the racial disparities were caused merely by nepotism or union politics. Yet, while it may seem commendable for fathers to pass on to their sons and to their other relatives a heritage of lucrative employment, a union of elected officials all of one race cannot use their power to implant racially chauvinistic and discriminatory systems and union power politics create no special immunity from civil rights law enforcement. With intensity some employers urge that they agreed to the exclusive hiring hall system solely as a matter of economic survival at the end of a destructive ten week strike when the union would not compromise for any other hiring alternative. Yet economic pressures, however strong and harmful they might be, do not create immunity for employers, at least not in this liability phase.
Finally, it must be emphasized that the economic stakes here are high. Members of the union could earn from $ 5.93 to $ 12.35 per hour. Some earned more than $ 30,000 and a few more than $ 40,000 per year. By now the average wage for the actively employed member is in excess of $ 15,000 per year. Despite its monopolistic powers, no one union is required to open its doors fully to admit everyone who applies for to do so would reduce the financial options of the more senior union members. Nevertheless, a union cannot manipulate the collective bargaining system in claiming that it is restricting entry options to protect the general economic interest of its members while at the same time opening the back doors manipulatively to permit its special friends, relatives and others to enter through a racially discriminatory system. In Local 542, there was extraordinary manipulation of the process by many individuals who maneuvered the system for their relatives or their special friends most of whom were white. Black veterans who had served their country with honor and distinction by proficiently operating engineering equipment during the Vietnam War and World War II were dissuaded persistently from applying to the union. Yet the young sons of the business manager Robert Walsh could enter the union with ease: one of Walsh's sons entered at the age of 18 and by his second year was earning more than $ 43,000 per year. The son of the hiring hall dispatcher at the age of 18 entered without any prior experience as an operating engineer's apprentice or oiler and in violation of the union rules. This pattern of easy, inappropriate entry and assignment to better jobs was repeated time and time again for the special friends of the union. See generally Plaintiffs' Schedule On Union Nepotism, Volumes, I, II and III. Union officials maneuvered the system so that their friends and relatives achieved entry and better jobs while those on the outside of the union power structure including both blacks and whites were deterred, delayed or refused union membership and access to the hiring hall. Though a relatively few blacks benefited, the totality of the union's conduct demonstrates that it sought to aid a selfish cause in part by a deliberate policy of resistance to equal minority participation as is shown by the deceptions contained in the defendants' 1968 Affirmative Action Agreement, discussed below, and by a series of other specific acts which precluded minorities, mostly blacks, from getting the options they otherwise might have had.
An examination of the facts in this case must begin with an elaboration upon the structure and operation of Local 542.
In 1961 Local 542 concluded a bargaining agreement with the defendants Contractors Association of Eastern Pennsylvania ("CAEP") and General Building Contractors Association ("GBCA") according to which 542 became the exclusive mechanism through which operating engineers were to be employed. Another association, the Delaware Construction Association, had agreed to the exclusive hiring hall earlier in 1961. Prior to 1961 the negotiating trade associations had resisted efforts to establish an exclusive hiring hall. Given the reality of a ten week strike by 542 members and the prospect of serious adverse economic consequences from a continuing strike, the CAEP and GBCA agreed to the union's proposal.
The hiring hall referral system thus formulated on paper is essentially the same one as is now embodied in the collective bargaining agreement. (I am not suggesting that the hiring hall in fact operated as it was supposed to or that hiring classifications were uniformly honored.) By the terms of the hiring hall agreement 542 is to maintain lists of operating engineers, or would-be engineers, in four basic categories ("groups") which are defined by measuring hours of recent construction experience. When an employer has need of an operating engineer he will notify 542 and within 24 hours should receive a referral. The key provisions of the Bargaining Agreement ("agreement") are as follows:
GROUP I shall consist of all those applicants who are under Group I and who have qualified for same as of May 1, 1963, and all applicants who have worked within the geographical area of the Eastern half of the State of Pennsylvania and the State of Delaware five thousand (5,000) hours within the past eight (8) years; or two thousand five hundred (2,500) hours for the past three (3) years. All applicants shall be entitled to priority under Group I who would have qualified for any of the foregoing classifications were it not for absence due to military service, or service as a Union official, or disability within the provisions of Local 542 Operating Engineers Welfare Plan, . . .
(This classification added in 1968 by amendment)
GROUP 1-A Shall be reserved for such jobs that are not physically demanding. This normally would be equipment such as compressors, welding machines, generators, heaters, etc. But recognizing that such or similar jobs may be physically demanding in certain instances, the Employer will discuss the details of such or similar jobs with the Union in order to place the job in the proper category.
Registration on Group I-A out-of-work list will be voluntary and will be restricted to those who are fifty (50) years of age or over, and who have been continuously in Group I for a period of fifteen (15) years of more, or those who are physically handicapped and who are unable to pursue their normal occupational classification. . . .
GROUP II shall consist of all those applicants who qualify for any of the following categories: All applicants who have worked within the geographical area of the Eastern half of the State of Pennsylvania and the State of Delaware twenty-five hundred (2,500) hours within the past twelve (12) years; four hundred (400) hours per year during any three of the past five years; or four hundred (400) hours during the past year.
GROUP III shall consist of all other applicants for employment. (Article II, § 2(e).)
According to Article II, § 2(f), the union is to maintain a separate list for each group. One's position on the list depends on the date of his registration certifying that he is available for work. Under section G the contract provides that the Group I list is to have priority. After Group I listees have been placed, Groups I-A, II, and III are to be used. The agreement provides one basic exception from the requirement to refer according to date of registration and that is with respect to jobs requiring special skills. If an employer needs a specially skilled person, such as a bulldozer operator or a crane operator, the hiring hall is empowered to select such a person even if it means bypassing persons on the list ahead of him not possessing the requisite skills.
Although the hiring hall constitutes the exclusive referral system, each employer has the right, based on his determination of competency, to refuse to employ one who is referred. If an employer makes such a refusal he may receive another referral which in turn he can accept or refuse. Under Art. II, § d, however, selection for referral shall be made without discrimination.
Until 1972, A, B, or C branch members could not run for or hold union office, and only parent body men
were eligible for appointment as master mechanics, a supervisory position usually paying relatively high rates. In 1973, however, the A and B branches were eliminated. Their members were transferred to the parent body. The D branch was supposedly eliminated by the end of 1975; however, according to one union exhibit its existence continued at least until January 2, 1976.
At the present time the parent body, C branch and the RA program are the only divisions of 542.
The registrant program is a classification by which an operating engineer not eligible for union membership maintains his referral status. This classification was created in 1965 and was initially divided into A (inexperienced) and B (experienced) registrants. That distinction was theoretically phased out after 1968 because the A registrants were detracting from the work available to registered apprentices. Since 1970 a field admission test and a written test have been required of applicants for registrant status. Registrants can progress to Group I status without seeking to join the union. (No evidence has been presented concerning the precise number of registrants who might not seek union membership status.) After achieving 2500 hours, however, a registrant can, under the contract, be admitted into the union upon application.
Formal entry into the union may also be achieved, according to procedure established by Local 542, as detailed below, through union organization of a workforce of an employer not previously subject to a bargaining agreement with Local 542. Prior to January 1, 1975, construction employees who were organized might enter either A or B branch. Since January 1, 1975 when these branches were abolished, all such employees are to enter into the parent body directly. Yard and shop workers who are organized are to enter C branch and surveyors are to enter the D branch. Intra-union transfers from A and B branches to the parent branch after four and three years respectively are and have been available. Transfers out of C branch have occurred either without restriction or after one year of experience in C branch.
Geographically, Local 542 encompasses Delaware and Eastern Pennsylvania. Because of the enormous size of this jurisdiction, the Local is divided into five districts, each with its own referral lists and hiring hall but all ultimately under one administration. It appears that the normal but not necessarily the absolute practice is for the work site hiring hall to make referrals based on its own district's listings.
The estimated 1400 contractors who have recently engaged in operating engineering work within Local 542's wide range may vary considerably in size. Relatively few are members of the defendant associations.
As a result of contracts entered into pursuant to negotiations with CAEP and GBCA in 1961 and subsequent negotiations with contractor associations, all participating contractors have passed on the direct managerial control of their application process to the hiring hall operated by Local 542. The contractors did not, however, relinquish power to affect the union's operation of the hiring hall, for the contract terms remained fully capable of enforcement in the event they were violated by those operating the hiring hall and the contract instituted a grievance procedure by which an appellate tribunal consisting of an "Employer Representative, a Union Representative and an Impartial Chairman appointed jointly by the Employer and Union . . ." would decide whether a complaining job applicant was aggrieved "with respect to the functioning of (the) hiring agreement." Article II, § 2(m). Although a vast majority of the employers are not and have not been active members of the defendant associations, the negotiations conducted by those bodies have established a standard to which the unaffiliated contractors may conform.
The hiring hall system is on its face neutral and purports to create a bona fide seniority system. Plaintiffs' allegations of discrimination are not directed against the hiring hall system per se but against the union's alleged intentional refusal to follow their own hiring hall rules, thus causing intentional discrimination against and a discriminatory adverse impact on minorities. Plaintiffs also allege discrimination particularly in admission into the union and admission to the job referral process. This allegation, although not attacking the hiring hall procedures set forth in the contract, does attack practices which would render the use of the hiring hall intentionally and otherwise discriminatory and contradict its bona fide seniority appearance. The foundation of this case rests on the statistical, documentary and testimonial evidence of discriminatory departures from and applications of the union hiring hall system.
On September 24, 1965, shortly after Title VII went into effect, President Lyndon Johnson issued Executive Order 11,246
prohibiting discrimination by contractors with federal contracts in excess of $ 10,000 and requiring affirmative action to ensure non-discrimination. The Department of Labor and the Office of Federal Contract Compliance ("OFCC") have principal responsibility for the enforcement of this Order.
Since much major construction work is done with at least partial federal funding, the federal government expressed its concern that the Order be complied with in the construction industry in the Philadelphia area. Toward the end of 1966 Bennett Stalvey, Director of the Regional Philadelphia Office of the OFCC, met with officials of Local 542 and later with officials of the CAEP and GBCA, advising them that it was the function of his office to see that the Order was complied with.
At this point, there was a clear disagreement between the federal government (OFCC), which wanted a higher percentage of minority individuals on construction jobs, and the construction industry, which wanted to use its traditional methods of employment. In the Philadelphia area (Philadelphia, Bucks, Delaware, Chester and Montgomery Counties) this matter took on added significance. Bennett Stalvey, in the fall of 1967, developed what was known as the "Philadelphia (Pre-Award) Plan," under which the requirements of the Executive Order would be implemented. A low bidder on a construction project involving certain levels of federal funding would be obliged by the OFCC to maintain a specific level of minority representation in his construction workforce.
The contractors, however, refused to make the specific commitments and hence in the spring of 1968 federal funds were withheld. Although Stalvey testified that there were several instances in which funds were withheld, the record specifically reveals only one low-bidder contractor-employer who was to use operating engineers out of 542's hiring hall and from whom funds were withheld Kiewit Sons Company of Omaha, Nebraska, a company which was to undertake a major highway construction project in Pennsylvania. Kiewit was not at that time a member of any regional contractor association, although it had been a member of CAEP by the end of 1967. Stalvey testified, and I find, that a total of at least $ 30 million in funds was withheld from highway construction programs through the spring of 1968.
A program was then developed which would accommodate the union in serving as an exclusive hiring hall and at the same time assure a substantial minority participation in the operating engineer trade. After a June, 1968, meeting in Washington, D.C., among officials of 542, their international representatives and OFCC officials, an "Affirmative Action Program" was executed on July 17, 1968. This program, as explained by Howard Minckler, a CAEP official, specifically included language urged by the contractor associations expressly making it in lieu of any other affirmative action plan, I. e., the Philadelphia Plan. Local 542, UCA, CAEP, and PECA were the original parties to this agreement, although by August, 1968, GBCA became an additional party. On the first page the agreement states:
The parties to this agreement have Made a detailed analysis of employment of minority group workers in the classifications covered by this agreement and have determined that, in the area governed by this agreement, approximately 650 members of Local 542 are minority group members out of a total membership of 5400. (Emphasis added.)
The affirmative action thrust of this program was to establish an apprenticeship program into which minority members could be recruited and trained. In addition, there was to be a program for retraining journeymen, particularly minority journeymen. The federal government accordingly approved the program in lieu of the Philadelphia Plan. Thus federal monies were released and no money has since been withheld. The statement that 650 (12%) of 5400 members of Local 542 were minority members was viewed by defendants to be an important factor in obtaining federal approval of the substitute Affirmative Act Program and thereby eliminating compliance with more stringent federal minority manpower requirements. The "detailed analysis of employment of minority group workers" by Local 542, CAEP, UCA, PECA and eventually GBCA was, however, grossly exaggerated and totally in error.
In order to appreciate the significance of the overstatement of minority members in 542, it seems useful to outline the history of such inaccuracies. In the early 1960s, Robert Walsh, Business Manager of Local 542, told the Philadelphia Human Relations Commission that by his guess the figure was 500 of 5000. In 1966 Local 542 officials Walsh, Cahill and Ciavaglia informed Bennett Stalvey that the number was 800-900 of 5000. Later Minckler in a meeting with Stalvey stated that the number was "very large." Based on the figures stated to Stalvey, the October 27, 1967 copy of the revised Operational (Philadelphia) Plan lists the minority composition as stated by the union at a possible 800-900 of 5000. In a 1967 report to the EEOC the union estimated a figure of 650 of 5000 stating, inaccurately, that most of its members "including Negroes and Spanish Americans have permanent employment" and therefore do not use the referral system. In 1968, Robert Emrick, formerly an official in the union but at the time coordinator of the Registered Apprenticeship program, told EEOC investigator James Nunes that his estimate was 600 blacks in District I and 50 more in other districts. In that same year the union wrote to Robert Bartlett, Pennsylvania Secretary of Highways, that 11-12% Of the union membership were minority group members. This served in part as the basis for Bartlett's objection to the withholding of funds in 1968. See note 11 Supra.
Finally, by 1969, the stated level of minority representation began to recede into reality. Stalvey was told in a February 18, 1969 meeting with union officials Robert Walsh, Homer Dawson, Joseph O'Donoghue and their attorney, Martin Vigderman, that there were 400 minority members among a total of 6000 members.
By December of 1970, the union had ascertained that the number of minority members as of January 1, 1970 was 259 of a total membership of 6128. This number was reported to the EEOC by a document dated December 31, 1970, and signed by Robert Walsh and was referred to in correspondence to the OFCC by Homer Dawson, local union president, in December of 1971.
It is not acceptable to describe the repeated gross inaccuracies as merely incorrect guesses. Those defendants who signed the Affirmative Action Program agreement stated that the figure was arrived at after a "detailed analysis." It obviously was not. Furthermore, Mr. Ciavaglia, the union official in charge of the hiring hall, with the assistance of Mary Kelly, a union employee, undertook a study in 1969 or 1970 based on records and their own knowledge of the membership, and concluded that there were an estimated 200 blacks in District I of Local 542. The ultimate unionwide count of 259 minority members as of 1970 was achieved by a similar method, one which was available throughout the period during which the inaccuracy was perpetuated, I. e., through "personal knowledge and identification by the business agents and officials of the Union and by contacting the last known employer when not known by the agents." In addition to these distortions, 542 failed to include in their semi-annual reports to the OFCC information on where and in what capacity minority operating engineers were employed although such data was required by the Affirmative Action Program Agreement.
While it is conceivable that in one instance the union could have inadvertently made a significant error in overestimating the number of minorities in the union, it is incredible that errors of this magnitude could have occurred consistently by any mere coincidence. I find, and the record permits no other plausible inference, that the repeated overestimation of the number of minority individuals in the union, the failure to file complete semi-annual OFCC reports with the prerequisite data, and the other related activities of the union on this issue of the "Affirmative Action Program" were part of a deliberate scheme of Local 542 to deny to the federal government accurate information on the percentage of minority individuals in 542. This scheme was part of an effort to have federal funds inappropriately released while at the same time permitting 542 to keep the minority representation in the union at a far lesser level then it otherwise would have been if the Philadelphia Plan had been applied. Only a finding of discriminatory intent can explain this subterfuge. The Philadelphia Plan would have resulted in a higher number of minority group members in the union and in the related industry. I find further that the Philadelphia Plan would have been adopted by the defendants if the fraud, deception and scheme of Local 542 had not been pursued by the willful presentation of substantial overestimates of the number of minorities in the union.
Any argument that, because the union alone had primary access to the membership data, the contracting associations CAEP, UCA, PECA, and GBCA were not at least reckless participants in this scheme, I find to be devoid of merit and patently incredible. When these same contractors sought the release of the 30 million dollars they showed no hesitation in signing the statement that they "made a detailed analysis of minority group workers . . . ." At the time of this certification, there was no real suggestion that any of the signatory contractor associations had any doubt about the accuracy of the data or had merely limited knowledge of it; instead, they endorsed it. In this respect their posture is like that of an accounting firm which has certified that it has counted petty cash monies or has verified bank statement deposit records when, in actuality, it has done neither. In the instant situation, the record reveals a total absence of concern on their part regarding the accuracy of their representation to the federal government in seeking the immediate release of at least 30 million dollars and doubtless the release of millions more to follow. The prospect of deriving such an immediate and substantial financial benefit from the federal coffers allowed them to become willing parties to the scheme by capriciously certifying "facts" in anticipation of the government's reliance on them: Having sought to enrich their members with substantial profits, it is now too late to cry innocence and cast the blame elsewhere. These were no innocent prognosticators who were misled by the union's scheme to give inaccurate information. Under these circumstances, I find that these signatory defendant associations are consequently estopped from repudiating their certification after their members have had the opportunity to compete for and after many have received the released funds.
C. The Benjamin Franklin Programs I and II
In 1968 James Longacre, Executive Director of the Pennsylvania State Council of Operating Engineers (a private organization), formulated a six-month training program consisting of on-the-job instruction and classroom instruction for 100 hard core unemployed males from eastern and western Pennsylvania. While there were both white and black trainees, the majority of the members were minority individuals. An agreement was reached between the Council and the Pennsylvania Department of Labor to implement this plan. Local 542 had some measure of responsibility for final selection of the participants from eastern Pennsylvania even though (1) it was not asked to contribute to the program's funding, which came from the federal government ($ 231,135) and the Commonwealth of Pennsylvania ($ 542,884.27), and (2) the Council of Operating Engineers and the Pennsylvania Bureau of Employment Security were fundamentally responsible for recruitment. Some equipment was donated by contractors, including Glasgow, Inc., but most was paid for in rentals from the program's funding. None of the associations or contractors were parties to the agreement or responsible for the Benjamin Franklin I (BFI) endeavor and none received federal funds for the administration of the program.
The recruitment and selection activities by 542 were conducted through the JATC and particularly by George "Al" Holland, a black operating engineer who was a union business agent. Two minority applicants, Ronald Richardson and Howard Williams testified that they were told by Holland at the recruitment stage that upon successful completion of the BF program they would obtain steady work. This was repeated during training and at graduation exercises along with the assurances of union membership and journeyman's pay. Even a graduation handout stated that graduates would receive highway construction jobs.
Of the 122 original trainees, 81 graduated from BF I. Fifty eight of these were black, 23 white; of this group 37 blacks and 7 whites were from eastern Pennsylvania. None of these graduates was given any credit for hours spent in training. This is a matter of no small significance since the number of hours of experience, described earlier, is supposed to enhance placement in the hiring hall system. These graduates were placed on the Group III (lowest priority) out of work list. Although the director of the Benjamin Franklin Program, Mr. Nygard, testified that the graduates needed "follow through" (on-the-job assistance), none was provided. Mr. Walsh testified that it was his expectation that the graduates would work in yards, mills, or trucking companies but not in construction. As will be detailed below, many graduates received little work opportunity.
Toward the close of 1969, a Benjamin Franklin II (BF II) program was agreed upon, again at the instance of Mr. Longacre and with the approval of the Pennsylvania Department of Labor. The same format was used for recruitment and selection except that a tenth grade education qualification and screening tests were required of entrants and the Pennsylvania highway contractors were themselves required to contribute $ 80,000 statewide in cash or equipment as a condition to continued eligibility for bidding. The contractors formed Construction Training, Inc. in order to make the financial arrangements. Each contractor was to contribute to Construction Training, Inc. a base amount of $ 200 plus a rate of $ .04 for each hour of time worked by an operating engineer or apprentice between March and October 30, 1970.
As with the BF I program the defendants had no part in formulation of BF II. George Holland did, however, have major responsibility in the process by which the union recruited applicants. Holland made statements to John Henry Owes that he would receive 2500 hours credit, a parent body book, and future on-the-job assistance if he graduated. Holland also made similar statements to Thomas Taylor, particularly that he would become a journeyman and earn $ 300 to $ 400 per week.
The training for BF II took place at the same location as the BF I training, Resica Falls, Monroe County, Pennsylvania. Of the 65 selected, 56 were graduated; of these, 46 were black, 24 from eastern Pennsylvania. Once again none of the graduates were given time credit, no one received a journeyman's status, and after graduation only a few minority graduates accumulated a significant number of hours. In BF II, as in BF I, the associations, contractors and unions did not receive any funding.
The immediate net result of the Benjamin Franklin Programs was to increase the number and percentage of minority registrants in Group III status. I find that many of the BF trainees had been led by the union to believe they would be put in Group I rather than in Group III status and thus have the advantage of better job opportunity. In the years to follow that training, many though not all would fail to achieve the hours necessary to become members of the union or to enter Group II or Group I. The Benjamin Franklin Programs figure heavily in the present action because all of the named plaintiffs are BF graduates.
Having outlined briefly the hiring hall system of 542 and having discussed some of the important circumstances underlying this suit, particularly the Benjamin Franklin training programs and the participation of defendants Local 542 and contractor associations in a program substituting for the Philadelphia Plan, attention may meaningfully be directed to the procedural history of this case.
The first major legal challenges to the alleged discrimination began with two charges filed before the EEOC, one by an EEOC Commissioner Vincent T. Ximines on July 29, 1968, and one by three BF I graduates, Raymond Williams, Willie McKay and Donald Muchison, on June 17, 1969. EEOC investigator James Nunes investigated both complaints. Service of Ximines' charge upon Local 542 was made on October 3, 1968 and service of Williams' charge was received on November 28, 1969. Ximines' charge was directed to the breadth of 542's procedures:
(a) Respondent discriminates against Negroes in referrals for jobs.
(b) Respondent discriminates against Negroes by limiting and classifying its membership in a manner which deprives Negroes of employment opportunities.
(c) Respondent discriminantly fails or refuses to admit Negroes to apprenticeship programs.
(d) By these and other acts, Respondent has discriminated and continues to discriminate against Negroes because of their race in violation of the provisions of Sections 703(c) and (d) of the Act.
The pro se charges by Williams, McKay and Muchison are identical to one another. They allege discrimination in the union's referral practices:
I was recruited into the training program by a representative of the International Union of Operating Engineers, Local No. 542 and upon completion of the training program I was promised employment by the Union. The training program under the sponsorship of the Union ran for a period of six (6) months. During this time I was trained to operate the following heavy equipment: Bulldozers, Graders, Front End Loaders, Back Hoes, Post Hole Drills, Core Drills, Scrapers, etc. I was graduated as a qualified operator on the above equipment. Since my graduation two weeks ago I have been to the Union Hall every day to be referred, with no (undecipherable word) results. I feel that I am being discriminated against because of my race (Negro) and for no other reason.
On August 30, 1971, the Philadelphia District Director of the EEOC, Ralph A. Allen, advised Local 542 in separate letters of the decisions of the EEOC that reasonable cause existed to believe (1) that Ximines' charge was true and (2) that the charges of Williams, McKay, and Muchison were true. The three claimants, in the decision in their case, were deemed entitled to receive the EEOC's decision dated August 6, 1971, on the Ximines charge. The letter of decision on their own case stated that, as members of the class harmed by the discrimination alleged by Ximines, the three individuals were entitled to such notice:
The Companion case . . . concerns a charge lodged against Respondent by an EEOC Commissioner. Pursuant to our Procedural Regulations, 29 C.F.R. 1601.25b (June 18, 1970), 35 FR 10005, Charging Parties will be entitled to receive copies of our decision in (the companion case) both because they are currently aggrieved by practices found to be unlawful in that decision, and because they were members of the class of potential Negro members which was aggrieved by several of Respondent's unlawful employment practices at the time the Commissioner's charge was filed.
During the discovery stage which followed there was an unexpected and very unfortunate development in retaliation for the filing of plaintiffs' suit. On June 19, 1972, Marion Eaddy and John Dent, both named plaintiffs, were attacked by white operating engineers in the union hiring hall offices. Dent's testimony, which I credited in my previous opinion at 347 F. Supp. 268, 275-76 (E.D.Pa.1972), Aff'd, No. 72-1901 (3d Cir., May 21, 1973), was particularly graphic. Marion Eaddy had been hit over the head from behind with a chair. Two men then continued punching and kicking him as he lay on the floor. Dent pulled one man away from Eaddy and shouted for help from the others in the hiring hall who included the union's business agent, Mr. Ciavaglia, his assistant, a C branch agent and twelve to fifteen union members. Dent himself was then struck over the head with a chair by a white operating engineer. The police were never called. The victims were not forewarned or aided by those witnessing the occurrence. Although Ciavaglia testified that he did not know the attackers, one of them had been in his office just a few minutes before.
On the following day the violence increased. Four or five pickup trucks in each of which were several white men, some of whom Dent recognized as operating engineers, came to the hiring hall En masse shortly after working hours. Despite the presence of a policeman, Dent, Eaddy and Cleveland Allen were beaten by groups of white operating engineers in front of the hiring hall. 347 F. Supp. at 276-77.
After an extensive examination of the facts and law this court entered an order enjoining Pendente lite Local 542 and all those acting in concert with or on behalf of Local 542 from interfering in any way with or retaliating for plaintiffs' exercise of their federal statutory and constitutional rights to institute their employment discrimination action.
Following four years of discovery, I entered an order bifurcating the trial into two stages: the first on the issue of liability and the second, if liability was found, on the issues pertinent to recovery of damages.
E. The Delays and Contempt Issues Involving Abraham Freedman, Esquire
During the course of the trial which began on January 19, 1976 and continued through June 28, 1977, there were two other unusual occurrences deserving mention. Local 542's counsel, Abraham Freedman, Esquire, was twice cited for criminal contempt for his courtroom conduct. 73 F.R.D. 551 (E.D.Pa.1976), Aff'd, 552 F.2d 498 (3d Cir.) (affirming both criminal contempt orders), Cert. denied, 434 U.S. 822, 98 S. Ct. 67, 54 L. Ed. 2d 79 (1977); 73 F.R.D. 544 (E.D.Pa.1976) (denial of motion for stay of action pending Freedman's appeal of first criminal contempt order). The first contempt order followed a lengthy and undirected reading by Mr. Freedman of Bennett Stalvey's deposition during his cross-examination. After four transcript pages of such unfocused reading, plaintiff's objection was sustained. Mr. Freedman responded by objecting to the court's ruling. He stated his intention further to state his ground for objection. He was ordered not to do so with the assurance that he would be the beneficiary of all possible grounds. After numerous repetitions of the order, 73 F.R.D. at 548-50 (Appendix A), Mr. Freedman, wilfully persistent in his course, was held to be in contempt. Freedman received a thirty-day sentence which has since been modified to a $ 500 fine upon Freedman's motion for resentencing.
From the very beginning of this lawsuit Mr. Freedman's tactics of delay and reprehensible conduct were wilfully designed and executed with the intent to obstruct and preclude a proper judicial determination of the real facts of the case. It is my judgment that he sought to subvert this intensely controversial matter to a mistrial so that years of investigation and discovery would have to begin again. Although his conduct was as reprehensible and as irresponsible as any I have seen during thirteen years as a trial judge, nevertheless, with patience and hopefully discernment, I have tried to disassociate those tactics from the essential fact finding process here.
Fortunately, for all the litigants including his clients, Abraham Freedman was not successful in aborting the trial process; however, he did succeed in making most difficult the presentation of those issues which would have been easy to discern from a fact-finding standpoint and which could have been ruled on and adjudicated promptly. As to the more complex matters in the case, he persistently tried to make it impossible to comprehend their nuances and to preclude any rational presentation of the case. By reason of this daily persistent level of counsel irresponsibility, discovery, trial and adjudication have extended far beyond any reasonable time span which any case would warrant even one involving a most intense vigorously litigated controversy.
Perhaps the tone of the trial can be best conveyed by the opinion of the Court of Appeals on the two contempt citations. Commonwealth of Pennsylvania v. Local Union 542, 552 F.2d 498 (3d Cir.), Cert. denied, 434 U.S. 822, 98 S. Ct. 67, 54 L. Ed. 2d 79 (1977). After evaluating Mr. Freedman's conduct, the Court of Appeals reviewed cases where similar conduct of non-lawyers was held to be inexcusable and then the Court noted:
If non-lawyer Seale's defiance of a judge's order was inexcusable, how much more so should be the conduct of appellant Freedman, a seasoned trial lawyer. We agree with the Seventh Circuit, and hold that a trial attorney's belief that certain action is necessary to protect the record for appellate review does not excuse his deliberate defiance of the trial judge's explicit and repeated orders. The phrase "preserving the record for appeal" is not a talisman that absolves a lawyer from his usual obligation to comply with a trial judge's direct orders.
Freedman's conduct was an affront to the trial judge's authority to control the proceedings in his own courtroom. An attorney who, in deliberate disregard of seven direct and explicit orders by the trial judge, pursues a course that he determines to be in the best interests of his client, offends the dignity and authority of the court and thereby obstructs the administration of justice. United States v. Seale, 461 F.2d 345, 371 (7th Cir. 1972). To hold otherwise would be to strip trial judges of their power to supervise the proceedings before them, and to clothe counsel with the authority to conduct trials in whatever manner they deem appropriate. Furthermore, we note that Freedman's conduct was obstructive because it resulted in a wholly unnecessary and not insignificant delay of the trial. For this reason, too, we conclude that his conduct arose to the required level of disruptiveness.
Freedman's action was intentional, constituted misbehavior which caused an actual obstruction of the administration of justice, and occurred within the presence of the court.
After the contempt citations had been sustained and on the last day for modification of his thirty day sentence, he filed a petition requesting that he not be sent to jail even though the sentence had been affirmed and no further judicial relief seemed available. I modified the prison sentence by vacating the imprisonment and imposing a fine of only $ 500. This was done not because there were any fundamental mitigating factors but solely because if, at his present age of more than three score and ten, he has never learned or has now lost totally the recognition of the standards of permissible conduct for lawyers, then 30 days in jail would not be a true deterrent for the future. Thus the jail sentence was not eliminated because of any view that it was ever unfair, for I am still confident that Mr. Freedman's conduct was as inexcusable as it was so often disgraceful.
F. The Named Plaintiffs as of Certification
As has been noted all twelve of the named plaintiffs are graduates of either Benjamin Franklin I or II. Because of the importance of the characteristics of these named plaintiffs in determining whether they satisfy the class action requirements and rule 23(a), the plaintiffs will be described with reference to some basic features.
At the time of the certification, on March 13, 1972, one of the named plaintiffs (Marion Eaddy) was a listee in Group I, five were in Group II (Randolph Hughes, William Bostic, Ronald Richardson, Ronald Crawford, Willie Frank Gilchrist) and the remaining six in Group III (Raymond Williams, William McKay, Arel Brownlee, Kenneth Howard, Alpha Christmas, Clarence Winder).
One, Marion Eaddy, a graduate of BF I, did become a member of Local 542's parent body. Two of the named plaintiffs, Randolph Hughes and Alpha Christmas, also BF I graduates, were applicants to the Joint Apprenticeship Training Program, although neither had received a final disposition of his application. The JATC files of Hughes and Christmas indicate no disposition but simply make reference to the Benjamin Franklin program. All plaintiffs were alleged to have been victims of the referral practices and practices relating to admission to Local 542 and discriminatory advancement in their profession.
The hours worked by named plaintiffs range from none at all to over 2500 in the period between their BF graduation and class certification. Three, Raymond Williams, William McKay and Clarence Winder never received registrant books, the first and lowest step in attaining entry to the union.
Although it is clear that the Group III plaintiffs are different from the Group II and Group I plaintiffs in terms of their supposed priority in referrals, I find there is no conflict between such plaintiffs for purposes of trying the legal issues of this suit. Plaintiffs are not attacking the hiring hall system as constituted but rather are attacking practices which, while forming no part of the hiring hall system's stated foundation, nevertheless have a profound impact on its operation.
Plaintiffs' expert, Dr. Bernard Siskin, is an Associate Professor at Temple University and Chairman of the Department of Statistics. He has written numerous articles and a text book in the field of statistics and has particular expertise in social statistics. At trial he presented a number of studies of 542's composition, ascertaining, Inter alia, the number and proportion of minority union members, the pool of minority persons available for operating engineer work, the number and proportion of minority entries from 1966 to 1975, the numbers of minority persons entering the union via the various available means, and the comparative hours and wages of minority members. From such studies he was able to draw conclusions relating to the likelihood of discrimination in the 542 hiring hall system. This case, like most cases involving statistical proof, involves among the expert witnesses some evidentiary conflicts which require the fact finder in turn to make findings of credibility. Upon balance I find Dr. Siskin's testimony to be credible, persuasive and accurate on these subjects and on the other subjects of his testimony. The testimony of the other experts who differ does not cause me to repudiate or modify my finding as to Dr. Siskin's credibility.
1. Membership Disparities
Based on the computer tapes of a "Master List of Active Members" provided to Dr. Siskin by the union (with key punch errors being corrected through the annual pension files), Dr. Siskin determined the union membership to be 6,051 as of December 31, 1971. This figure includes the parent body, branches A through D, and the Registered Apprenticeship enrollees. (Holders of registrant books are not counted in this tabulation and are not considered by the union as members.) There were two hundred and thirty-five black members. Thirty-three more were members of another minority. Thus the composition among active members of Local 542 at the end of 1971 was 3.9% Black. When all minorities are considered, the minority composition of the union was 4.4%. These 1971 percentages are very nearly identical when pension welfare, and honorary members (inactives) are included in the membership definition. The following table reflects the composition of 542, including pension, welfare and honorary members, for the years 1966-71:
Based on the 1970 census data for the area covered by Local 542's jurisdiction, the total population is 7,729,115 of which 888,370 or 11.5% Are black and 33,073 or .4% Are members of another minority group. Limiting the population to males between the ages of 18 to 65, in order to define more precisely the pool of potential applicants, the figures become 11.0% Black and 11.5% Minority. The 11.0% And 11.5% Figures are a conservative statement of the available black or minority labor pool. This was Dr. Siskin's conclusion and I agree. Siskin's best estimate, however, was 12.7 to 13.4% Black and a total of 13.2 to 13.9% Minority, taking into account by his calculations labor force participation rates, the census undercount, education and occupation and disregarding particularly the suggested factors of automobile and telephone ownership.
2. Discrimination in Entry
In addition to demonstrating this gross disparity, plaintiffs' expert, Dr. Siskin, compiled data principally from union exhibits indicating the ratios of minority entry into the union (parent, A, B, C, and D branches and the RA program). During the period 1966-1971, 2601 new members entered 542. Minorities entered at the following rates:
The total black entries for the union as a whole were 143 or 5.5% Over the course of these years and the total minority number was 166 (6.4%). The direction of the entry rate (increasing or decreasing) fluctuated during this period, so it is not possible to deduce with absolute certainty any definite trend, although in the last three years before suit (1969-1971) the average entry rate was 6.4% Black and 7.9% Minority. The difference between this average and the conservative labor pool percentage is statistically significant at less than 1 in 1,000,000 (I. e., the probability that the difference can be explained by chance is less than one out of one million). On the basis of random entry one might reasonably expect almost 300 minority entries between 1966 and 1971. The difference between this expected number and the lesser actual number is 133 44%. By the end of 1974, the minority membership of Local 542 was 4.3% Black and 4.8% Minority out of 6725 members. As will be developed below, there are no other factors which would fairly require a finding that this gross disparity is not the result of discrimination. There is no sufficient evidence to explain that this disparity occurred because of any valid job-related qualifications not possessed either by members of the minority labor pool or by actual applicants for union membership.
Even after suit, from 1972-1974, the minority entry ratio into the union is at 7.4%, not far from the 6.4% Pre-suit figure applicable between 1966 and 1971 and less than the 7.9% Rate between 1969 and 1971. In 1972, 5.9% Of entrants were minority; in 1973, 8.1%; in 1974, 8.0%; and in 1975, based on union data after excluding reinstatement and withdrawals, only 1.5% (adjusted from 2.8%).
In the data given above, C and D branch members were properly included in assessing the extent of 542's discrimination in part because the C and D members are indeed union members and because transfers can be affected from C and D into the parent body construction trade, thus affecting the general measure of availability of entry into the construction trade and the employment prospects of the plaintiff class. (The entry data for the years 1972-1975 does not include D branch members.
) Plaintiffs' arguments that Local 542 has discriminated are indeed based in part on the assertion that the union maintained primarily white entry methods and primarily minority entry methods. For purposes of analyzing this contention the data on entries into the union will be broken down (in rounded figures) into branch or division.
The overall average entry rate from 1969 to 1971 is:
For each of the three year averages (1969-71) the disparity from the minority labor pool percentage is statistically significant (less than a 5% Probability of chance occurrence). For the union as a whole, including C and D branches, during this three-year period the disparity is significant such that the likelihood of these overall figures occurring by chance is less than 1 in 1,000,000.
In the period from 1972 to 1974, 7.4% Of entries into 542 were minority members: 8.0% Parent body, A, or B; 1.7% C Branch; 18.2% RA.
The very high RA figure comprises entrants into the four-year program. If instead of examining the number of minority entrants into the RA program we look to the number of minority graduates moving from RA status into the operating branch for this period, the 18.2% Figure diminishes to about 5.9%. This latter percentage is in many respects the most meaningful in measuring the minority participation of registered apprentices. Furthermore, as the minority RA entrants have increased in this period, the minority C Branch entrants have diminished somewhat, so that apparent increases in participation by minorities in the RA program are not absolute increases. If the RA minority graduate figures are used instead of RA entry figures, the overall percentage of minority entrants into Local 542 during 1972-74 is 4.9% Instead of 7.5%; this makes a decrease since the filing of this suit in 1971 when the average rate of minority entry between 1971 and 1966 was 6.4%. Although the RA program will be discussed separately under the heading "JATC," it is clear that a careful evaluation of the statistical proof reveals continuing discrimination. Thus as of 1976, two years after A and B branches were abolished, the Parent Body was 5.8% Minority, the C Branch 3.9%, and the Registered Apprentice Program (including entrants) 12.7%. Excluding inactives the percentage of minority union members (counting RA entrants) at the outset of 1976 was 4.87%. The fluctuations in methods of entry strongly suggest manipulation. This is corroborated by other proof.
3. Disparities in Hours and Wages
The second major component of plaintiffs' statistical proof concerns the proportionality vel non between the hours worked and wages received by white members and by those minorities who were able to become members of Local 542. Dr. Siskin performed two basic studies inquiring into this matter. In the first he compiled from the union's Master List of Active Members all the hours worked by whites and minorities during 1969-71 and estimated by a standard formula of hours worked in recent years just who was in Group I, II or III. In the second, using the Master List he examined the hours worked and wages obtained during 1972, making correlations to the out-of-work list and the respective operating branches of 542 so as to compare even more closely like groups of white and minority workers. Both studies excluded consideration of C Branch and D Branch and registrants.
The result of Siskin's first study based upon health, welfare and pension records is indicated in the following table.
Plaintiffs' first study sought to account for differences in age, district, branch, seniority, and out-of-work list status by use of a regression analysis. After accounting for these factors, Dr. Siskin nevertheless concluded that white operating engineers in the studied branches worked 109 hours per year longer and at higher rates than minority members on account of race. Siskin concluded that the racial disparity was statistically significant and would not be decreased by the addition of other variables. This means that minority members received $ 717 per year less than whites. In addition to this loss, Siskin concluded that minorities lost on the average $ 262 per year due to maldistribution among branches.
Upon receiving master list data for 1972, including for the first time exact wage information and group status, Dr. Siskin repeated his analysis for that year, excluding from consideration all those individuals on the list who began during the course of 1972. Siskin also analyzed in this study the raw wage and hour differential among the branches and among out-of-work listings. Once again, only Parent, A, B, and RA branches unionwide were analyzed:
The average racial difference in wages by branch and group list unionwide is correspondingly as follows:
The average overall disparity unionwide in 1972 hours and wages is revealed by the following table:
Closely tied to plaintiffs' proof of a differential in minority hours and wages is the proof of an arbitrary system of referrals. Siskin's analysis on this subject was limited to District I, although in a separate analysis unionwide clustering of minorities with a limited number of employers was also shown to exist. First I will detail the District I study.
Siskin's study of the District I referral system involved an analysis of seventeen out-of-work lists from among the various groups (five from Group I, one from Group II, five from Group 1-A, and six oilers and RA lists). The seventeen lists were the remainder after eliminating all lists during that period with less than forty names. This was to assure statistical significance. Each list had been used for one of any of the months between 1969 and 1971. A rank was then assigned to each person on the list according to his position. Referrals were counted based on the first referral date marked in a listee's work records. (A referral constituted any attempt to contact a worker including acceptances, refusals, or failures to achieve contact so long as noted in work records.) By computer, seventeen "selection" lists were created reflecting the actual order of referral.
By creating the selection list, Siskin was able to compare actual referral rankings to the work list ranking in order to determine the coefficient correlating the two lists positively, negatively or neutrally. The appropriate numerical correlation (the Spearman rank correlation coefficient ("r")) ranges from " - 1" to "". A "" correlation would mean that the two lists are identical; a " - 1" would mean that they bear a perfect reverse order correlation; a "0" correlation would mean that the relationship appears random. Based on Siskin's analysis the R correlation coefficients for the seventeen lists are as follows:
While all of the lists except list # 2 from Group II were clearly on the positive correlation side, further analysis by Siskin revealed that virtually none of the lists reflecting actual referral rankings was Significantly similar to the corresponding out-of-work list.
This conclusion was reached after calculating the "variance." In the present context the correlation coefficient (R ) when squared (R 2) measures the variance in selection rank which is explained by the out-of-work list rank. The formula 1-r 2 measures the variance in selection not explained by the out-of-work list. Of the seventeen lists examined, on only one was more than one-third of the selection rank predictable or explainable based on out-of-work list rank. On another list the position on the out-of-work list explained only .6% of the selection list ranking.
The next statistical test performed on the seventeen lists was to determine whether predictability of selections from out-of-work list ranking increased depending on the type of list. A table indicating the percent of explained variance within groups, with and without ranking those who were not referred at all, is below:
The percentage of explained variance is relatively small.
Siskin prepared yet another chart, an "expectancy chart," indicating the probability of selection for persons listed in respective quintiles of each out-of-work list:
Corroborative of the above data is the calculation of data indicating clustering of minority workers referred through the hiring hall system of Local 542. For the period 1969-1971, Dr. Siskin examined union pension records for all districts and determined that 69.6% Of the 1488 employers reporting hours for the period reported no minority hours at all. The breakdown by years is as follows:
Twenty-three employers, according to Siskin, employed minorities during the three-year period as at least 10% Of their total hiring hall employees. These companies were all in District I. They accounted for 32.41% Of all minority hours in that district but only 5.96% Of total District I hours. Further, these employers received 17.17% Of District I minority referrals but only 7.43% Of all District I referrals.
Proof of gross statistical disparities may itself constitute a prima facie case of intentional pattern and practice discrimination. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977); Hazelwood School District v. United States, 433 U.S. 299, 97 S. Ct. 2736, 53 L. Ed. 2d 768 (1977). In this case there is more than statistical disparity. There is evidence of the local union's intentional deceptions to avoid application of the Philadelphia Plan as well as evidence of deception in denying the Benjamin Franklin graduates union membership. These deceptions (particularly relating to the Philadelphia Plan) were, I find, engaged in with the purpose of appearing to advocate equal minority participation, and hence of assuring the flow of federal contract monies, while at the same time duplicitously resisting such participation at meaningful steps of implementation. Plaintiffs need offer no more than this to establish their class claim of intentional discrimination and bring the abstract statistics to life. Plaintiffs' other proof consists, in part, of evidence showing specifically enumerated departures from customary entry methods and a relation between method of entry and race which cannot be viewed as coincidental. Plaintiffs also have presented testimony of twelve minority individuals relating their experiences in seeking access to the union hiring hall. Both types of evidence seek to prove a pattern of discriminatory conduct, or to corroborate other proof of discrimination, without relying directly on an expert's opinion concerning the exact probabilities that the specific instances can be generalized. Such evidence has long been an important part of employment discrimination suits and assumes evidentiary significance by establishing or tending to confirm in the concrete that which statistics have abstractly assured was highly probable. Both types of non-statistical proof may create or corroborate an inference of discrimination.
First for consideration is the proof of a variety of methods for entering Local 542 which have either departed from the customary entry avenues, and in the process have provided primarily white entry routes, or in the ordinary course of operation have resulted in the exclusion of a disproportionate number of minority applicants.
The initial formally permissible methods of, or steps toward, entry are through what are called A and B branch Organization, C and D branch Organization, C branch Miscellaneous, the Registered Apprenticeship Program, and the Registrant Program. As indicated earlier intra- and inter-union transfers may also be accomplished.
Entry through A and B Organization may occur when employers previously not committed to the union bargaining agreement decide to become committed. Their construction work forces are issued union books at that time without having to meet any qualificational criteria. (A and B branches were abolished as of December 31, 1974). Entry through C and D branch Organization is accomplished when non-union workers choose the union as their bargaining agent, usually by an election procedure. C branch Miscellaneous entry is the entry route for new workers hired by employers whose workforces had previously been organized. The Registered Apprenticeship Program, a four-year training program, provides an entry method for essentially unskilled would-be operators who meet certain qualifications and who pass written tests.
Lastly, there is the registrant program, A and B. A-registrants were unskilled persons desiring to be operating engineers who simply registered with the union and obtained an A-registrant book. After achieving 2500 hours of experience membership in the union became available. This method of entry was eliminated in 1968. B-Registrants, prior to August 1, were those claiming to be experienced operating engineers who were issued B-registrant books. On August 1, 1970, however, a written and field testing procedure went into effect to verify the qualifications of B-registrants. These tests have not been validated as to their job-relatedness.
Intra-union transfers render entry into the non-construction branches relevant to the issue of entry into the construction branches. Branch members may transfer into construction, by varying accounts, either after attaining 2500 hours, after attaining journeyman C branch status, or without restriction or specific rules. Transfers into the parent body could be effectuated from A branch after four years or B branch after three years. Inter-union transfers have also been permitted.
The following table, based on union records, indicates the minority composition of persons entering 542 through the above described methods between 1970 and 1975:
A closer breakdown reveals even more emphatically the minority underrepresentation in entries via B branch Organization:
Only seven out of 377 B Organization entries were minorities, a total of about 1.9%, much less than either the minority labor pool percentage or the percentage of minority union members.
Focusing on C-Branch also reveals diminutive minority participation in the new entries to that branch. Between 1970 and 1975 only 8 (1%) of 768 C Miscellaneous entries were minority members, and only 11 (4.5%) of 242 individuals entering by way of C Organization were minority members. By 1976 minority representation in C branch was only 3.9%.
As the minority rate of entry into and population of C branch has become relatively insubstantial, the minority representation among registrants has been fairly constantly greater than the minority labor pool percentage in the 542 geographical realm.
The rate of minority entrants into the registrant program between 1969 and 1975 was itself commensurate with labor pool percentages at 12.4% (103 out of 832). Of 44 A registrants entering Local 542 between 1970 and 1975 only 1 was a minority. Given these indicia, it is reasonable to conclude that there was among entrants a minority concentration in the B registrant non-member group.
The segregative channelling effect is explained somewhat by other non-legitimate methods through which entry or affiliations with 542 have been accomplished. Foremost among these methods is the simplest direct and unexplained entry. Plaintiffs have assembled a list of forty-three white individuals who have entered 542's parent body or A or B branches since 1970 without having been registrants and without having entered through organization, C branch, RA program or interunion transfer. No minorities have entered in this way.
Particular instances of direct entry also provide an insight into the union management's role therein. The direct entry of one Nicholas D'Ambrosia, Jr., son of a former member of 542's Executive Board, received emphatic treatment in plaintiffs' proof. Testimony at trial reveals that Robert Walsh, business manager of 542, was informed that D'Ambrosia possessed no union book of any kind. Walsh instructed Ciavaglia to remove D'Ambrosia if this was found to be true. Ciavaglia determined that D'Ambrosia had been improperly referred as an oiler by one of the District I business agents, Joseph O'Donoghue. O'Donoghue refused to alter his position, while not denying its impropriety in his discussion with Ciavaglia. D'Ambrosia was never removed from his job. This case is illustrative of ...