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REYNOLDS v. SHEET METAL WORKERS LOCAL 102

March 7, 1980

Earl REYNOLDS et al., Plaintiffs,
v.
SHEET METAL WORKERS LOCAL 102 et al., Defendants



The opinion of the court was delivered by: BRYANT

MEMORANDUM AND ORDER

Introduction

 Plaintiff's complaint, as amended, alleges widespread discrimination against blacks in the union sheet metal trade in the Metropolitan Washington, D.C. area, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended, and the Civil Rights Act of 1866, 42 U.S.C. § 1981. In particular, plaintiffs attack the selection criteria of the apprenticeship program designed to admit workers into the local sheet metal union, the administration of the pre-apprenticeship program aimed at training applicants not eligible for the apprenticeship program, and the treatment afforded black journeymen who have attained union status or sought direct admission into the union.

 Defendants in the suit include the international union of sheet metal workers ("SMWIA"); the Metropolitan Washington affiliate of sheet metal workers ("Local 102"); the national association of employers engaged in sheet metal contracting work ("SMACNA"); the Metropolitan Washington affiliate of employers engaged in sheet metal contracting work ("SMACNA-DC"); the national association of employers and union members promulgating national apprenticeship training standards ("NJATC"); and the local association of employers and union members supervising and administering the local apprenticeship program leading to membership in Local 102 ("JAC"). *fn1"

 In November 1979, plaintiffs learned that defendants had begun soliciting applications for a new class of approximately fifty apprentices in the apprenticeship training program. Applications were to be accepted during the first three weeks of January 1980, with interviews and selections shortly thereafter.

 On January 2, 1980, plaintiffs moved for a temporary restraining order and preliminary injunction enjoining the formation of the new apprenticeship class as long as the JAC employed certain selection criteria and procedures. Plaintiffs attacked the high school diploma requirement *fn3" the interview of applicants by the JAC committee, and the inquiry concerning arrests on the application form. *fn4"

 Although applications for the new apprenticeship class were accepted in early January 1980, the defendants voluntarily postponed any interviews or final selection of applicants until after the date of this order. This delay eliminated the need for a hearing on the temporary restraining order; on January 17, 18, 21, and 22, 1980, hearings were held on the motion for a preliminary injunction. *fn5"

 Plaintiffs' claim for relief grows out of Griggs v. Duke Power Co., 401 U.S. 424, 429-31, 91 S. Ct. 849, 852-53, 28 L. Ed. 2d 158 (1971) and its progeny. Racially neutral selection criteria having a disparate impact on minority applicants give rise to a prima facie case of employment discrimination in violation of Title VII. *fn6" The defendants must then establish that the selection criteria "bear a demonstrable relationship to successful performance of the jobs for which it was used." Id. at 431, 91 S. Ct. at 853 (construing 42 U.S.C. § 2000e-2(h) (1976)). Even when such a showing is made, plaintiffs may still prove that "other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest in "efficient and trustworthy workmanship.' " Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S. Ct. 2362, 2375, 45 L. Ed. 2d 280 (1975). This two-step process protects minority applicants qualified for the job or position in question.

 Plaintiffs have argued that use of the three contested criteria high school diploma, interview, and arrest record inquiries has a disparate impact on black applicants and is not job-related. Defendants have attempted to show the opposite. After consideration of the testimony, exhibits, briefs, and memoranda submitted by the parties, this court, pursuant to Fed.R.Civ.P. 52, makes the following findings of fact and conclusions of law.

 FINDINGS OF FACT

 Parties

 1. Plaintiffs Earl Reynolds, Eugene F. Walker, David Cook, Lumas Reeder, Albert L. Busby and Ernest E. Baylor are each black citizens of the United States. (See NJATC's Answer to Second Amended Complaint, P2, March 22, 1979.)

 2. Local 102 is an unincorporated sheet metal workers union with geographic jurisdiction encompassing the Washington, D.C. Standard Metropolitan Statistical Area ("SMSA"), plus certain outlying counties in Virginia and Maryland. Local 102's business address is 2703 Bladensburg Road, N.E., Washington, D.C. (Local 102's Answer to Amended Complaint, P4, April 6, 1976.)

 3. Local 102 is the recognized bargaining agent for journeymen and apprentice sheet metal workers hired by SMACNA-DC sheet metal contractors within its geographical jurisdiction. (JAC Ex. 27.)

 4. Local 102 has been governed by its own Constitution and By-Laws, and by the Constitution and Ritual of the Sheet Metal Workers' International Association. (Testimony of Richard Drake; JAC Ex.'s 27, 28.)

 5. As of 1975, only 36 of 950 members, or approximately 3.8% of Local 102's total membership in construction was minority. (Pl. Ex. 127 and Ex. 4 thereto.) According to Census figures, only 6% of all employees in the Washington D.C. area sheet metal trade (union and non-union) were black as of 1970. (Pl.Ex. 149.)

 6. Local 102 has now, and has had since before 1971, a collective bargaining agreement with defendant SMACNA-DC. (Answer of SMACNA-DC to Amended Complaint, P6, March 31, 1976; JAC Ex. 27.)

 7. SMACNA-DC is an incorporated association of building contractors in the Washington D.C. area who are engaged in sheet metal construction work. (Testimony of Harry Muller; JAC Ex. 27.) SMACNA-DC is the bargaining representative for its members. (Id.)

 8. Defendant JAC is a joint labor-management committee composed of three representatives from Local 102, and three representatives from member companies of SMACNA-DC. The JAC administers Local 102's and SMACNA-DC's apprentice selection and training. (Testimony of Clarence Neese; JAC's Answer to Amended Complaint, P8, April 6, 1976.)

 9. The JAC operates a four-year apprenticeship program designed to train individuals to become competent journeyman sheet metal workers in the commercial construction trade. (Testimony of Clarence Neese.) Historically, most individuals have been admitted to membership in Local 102 through the four-year apprentice program.

 10. The apprenticeship program consists of forty hours per week on-the-job training with a sheet metal contractor, and classroom instruction of three and one-half hours a night for two nights a week, over a nine-month school year. The classroom instruction continues for four consecutive school years. (Testimony of Clarence Neese.)

 11. The JAC's formal apprentice school curriculum includes classroom and shop courses in safety and use of tools, basic and advanced mathematics, sheet metal drafting, basic rectangular layout, parallel line development, blueprint reading, radial line development, roofing, welding, field measure, special fittings, triangulation, air balancing, rigging and related course work. (JAC Ex.'s 10, 11, 12.)

 12. The apprentice manpower needs of SMACNA-DC's members and selection standards are subjects of collective bargaining between Local 102 and SMACNA-DC. Within the trade jurisdiction of Local 102, contractor members of SMACNA-DC employ sheet metal workers who are members or apprentices of Local 102. (JAC Ex. 27.)

 Apprentice Selection System

 14. The procedures and criteria for selection of apprentices used by the JAC were developed jointly and contained in a document entitled "Apprentice Standards" executed by SMACNA-DC and Local 102. (Pl.Ex. 128; see also Pl.Ex. 123 and JAC Ex. 36.)

 15. From time to time, according to the needs of SMACNA-DC members, the JAC advertises the availability of apprenticeship positions. In doing so, the JAC currently indicates that applicants must meet certain threshold qualifications, including the following: *fn7"

 
(a) high school diploma or G.E.D.;
 
(b) age (at least 17 yrs. old);
 
(c) residence within the jurisdiction of Local 102; and
 
(d) physical ability to perform work in the sheet metal trade.

 (Testimony of Clarence Neese and Donald Alter; Pl.Ex. 1.)

 16. Interested persons must meet the qualifications described in P15 above, and must appear in person at the JAC office to complete a written application. The written application, which is four pages long, includes a number of questions about the applicant's background, education and work experience, and also includes an inquiry about arrests. (Pl.Ex. 1.)

 17. In addition to completing the written application, each applicant must provide the JAC with copies of the following documents:

 
(a) high school diploma, G.E.D. or equivalency;
 
(b) birth or baptismal certificate;
 
(c) high school transcript; and
 
(d) resume of work experience. (Id.)

 18. Only apprenticeship applicants who have fulfilled all of the requirements set forth in PP15-17 above are scheduled for an in-person employment interview. No apprentice applicant is hired without such an interview. The interview is conducted by a panel of the six members of the JAC and the JAC administrator, and lasts approximately 5-10 minutes per applicant. (Testimony of Clarence Neese.)

 19. Applicants are ranked according to a two-part scoring system devised by the JAC. On Part A, the educational portion, a total of 33 points can be awarded. On Part B, the interview portion, a total of 67 points can be awarded, for a total of 100 possible points. (Id.; Pl.Ex. 1.)

 20. Part A is completed by the JAC administrator, based upon the information contained in the written applications. (Testimony of Clarence Neese.) Thirty-three points may be awarded on Part A as follows:

 TABLE

 (Pl.Ex. 1.) Three specific mathematics courses are allocated only one point each. Since mathematics counts only three points, an applicant could score zero on the mathematics portion, but might well be selected. (Testimony of Clarence Neese.)

 21. Part B is completed by each of the six JAC interviewers, at the interview. (Pl.Ex. 155 at 63-69.) The average of these six scores is then calculated, and added to the score on Part A, to obtain a total score for each applicant. (Testimony of Clarence Neese.) Points may be awarded on Part B as follows:

 TABLE

 22. Once the total scores for all applicants are obtained, the JAC administrator ranks the applicants and provides the applicants' names and scores to the JAC. The committee then determines how many applicants to select, based upon the needs of Local 102 and SMACNA-DC members. (Testimony of Clarence Neese.)

 23. Applicants are notified by mail whether they have been accepted or rejected. (Testimony of Robert Poole; Rodney Jackson; JAC Ex.'s 8 and 9.)

 24. Accepted applicants are normally placed on the job with contractors at approximately the same time they commence apprenticeship training. The JAC determines which newly selected apprentices will work for which particular contractor members of SMACNA-DC. (Testimony of Clarence Neese.)

 25. Once an applicant is placed on the job with contractor members of SMACNA-DC the contractors keep the JAC administrator informed of the apprentice's performance on the job. (Id.) This practice has been followed consistently over a period of years. (See, e.g., Pl.Ex. 122 at 39-61.)

 26. The procedures described in PP15-25 above have been in effect throughout the 1970's, and are the same procedures which the JAC proposes for its 1980 apprentice selection. (Testimony of Clarence Neese, John C. Denton and Donald Alter; Pl.Ex. 1.)

 Proposed 1980 Apprentice Selection

 27. In November 1979, the JAC announced its intention to admit a new class of apprentices in early 1980. It indicated that applications would be accepted on certain specified dates in January 1980. (Pl.Ex. 120.) Under the Jac's proposal, eligible applicants then would be notified of their right to attend a JAC employment interview; interviews are to be conducted in early March; and selection decisions are to be made shortly thereafter. (Statement of counsel for JAC.) The JAC intends to select between 30 and 50 apprentices, depending on conditions. (Testimony of Robert Keyser.)

 28. In its announcement of the 1980 application process, the JAC advertised the high school diploma or G.E.D. requirement, as well as the need to provide copies of a high school diploma and transcript, birth or ...


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