Rule v International Association of Bridge, Structural, and Ornamental Ironworkers Brief of Plaintiffs Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

NO. 76-1945

RONALD RULE, et al.,
Appellants,

v.
INTERNATIONAL ASSOCIATION OF BRIDGE, 
STRUCTURAL, AND ORNAMENTAL IRONWORKERS, 
LOCAL UNION NO. 396, et al.,

Appellees.

On Appeal from the United States District Court 
for the Eastern District of Missouri 

Eastern Division

BRIEF OF PLAINTIFFS-APPELLANTS

LOUIS GILDEN
Gilden & Dodson
722 Chestnut Street
St. Louis, Missouri 63101

JACK GREENBERG 
0. PETER SHERWOOD 

10 Columbus Circle 
Suite 2030
New York, New York 10019

Attorneys for Appellants



INDEX
Page

TABLE OF AUTHORITIES ..................................... ii
QUESTIONS PRESENTED FOR REVIEW ..........................  vi
NOTE ON FORM OF CITATIONS ................................ viii
STATEMENT OF THE CASE .................................... 1
STATEMENT OF FACTS

A. Introduction ..................................... 5
B. History of Racial Discrimination ................  9
C. Employment in the Ironwork Trade ................  17
D. The Joint Apprenticeship Program ................  19
E. The Minority Training Program ...................  27
F. Effects of Local 396 Discriminatory

Practices on the Plaintiffs ....................  29
ARGUMENT ................................................  36

I. THE DISTRICT COURT'S DECERTIFICATION 
OF THE CLASS CONSTITUTES AN ABUSE OF
DISCRETION ....................................... 3 7

II. THE DISTRICT COURT ERRED IN REFUSING
TO ADMIT PLAINTIFFS' EXHIBITS 26A ...............  39

III. THE DISTRICT COURT ERRED IN REFUSING
TO CONSIDER CERTAIN EVIDENCE CONTAINED
IN THE GOVERNMENT'S CASE ........................  41

IV. THE DISTRICT COURT'S FINDING OF NO UNLAWFUL 
DISCRIMINATION AGAINST THE NAMED PLAINTIFFS 
WAS BASED ON AN ERRONEOUS INTERPRETATION OF 
THE LAW ..........................................  43
A. The Union unlawfully Discriminated

Against Ronald Rule in 1966 ................ 44
B. The Union Discriminated Against Ronald

Rule After 1966 .......................  47
C. Willie West Is Entitled to a Remedy

from the Effects of Unlawful Discrim­
ination Suffered in 1969 .................. 51

l



Page
D. Johnnie I. Brown Is Entitled to a

Remedy from the Effects of Discrim­
ination Suffered in 1970 .................  52

E. George Coe is Entitled to a Remedy
from the Effects of Unlawful Discrim­
ination Suffered in 1970 .................  54

F. Hiawatha Davis Is Entitled to a Remedy
from the Effects of Unlawful Discrim­
ination Suffered in 1973 .................  55

G. Plaintiff Lonnie R. Vanderson Is 
Entitled to a Remedy from the Effects 
of Unlawful Discrimination If He Was
Not Accepted Into JAC in 1975 ............  57

H. Plaintiff Willie Nichols Is Entitled to 
a Remedy from the Effects of Unlawful 
Discrimination Suffered in February
1973 .......................................  58

V. THE DISTRICT COURT'S REFUSAL TO CONSIDER 
PLAINTIFF RULE'S CLAIM OF BREACH OF THE 
MCHR CONCILIATION AGREEMENT CONSTITUTES 
AN ABUSE OF DISCRETION........................... 59

CONCLUSION ...............................................  63
CERTIFICATE OF SERVICE ...................................  65

TABLE OF AUTHORITIES
Cases:
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ......  52,54
Baldwin-Montrose Chemical Co. v. Rothberg, 37 F.R.D.

354 (S.D. N.Y. 1964)   42
Bowe v. Colgate-Palmolive Co., 489 F.2d 896 (7th Cir.

1973)   53
Bradley v. School Board of City of Richmond, Va.,

53 F.R.D. 28 (E.D. Va. 1971), rev'd 472 F.2d
318 (4th Cir. 1972), vacated 412 U.S. 92 (1974) ....  63

Bradshaw v. Associated Transportation, Inc.,
__ F. Supp. __, 8 EPD 59641 (M.D. N.C. 1974)   52

xi



Carey v. Greyhound Lines, Inc., 500 F.2a 1372
(5th Cir. 1974) ......................................  50

Carr v. Conoco Plastics, Inc., 295 F. Supp. 1281
(N.D. Miss. 1969)..................................... 37

Causey v. Ford Motor Co., 516 F.2d 416 (5th Cir.
1975).................................................  45

Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) ...........  44,54
Duncan v. Perez, 321 F. Supp. 181 (E.D. La. 1970)........  43
Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp.

1146 (D.S .C. 1974) ................................... .40
EEOC v. Mississippi Baptist Hospital, __ F. Supp. __,

11 EPD 510,822 (S.D. Miss. 1976).....................  60
Florida v. Charley Toppino & Sons, Inc.,

514 F.2d 700 (5th Cir. 1975).........................  43
Franks v. Bowman Transportation Co., __ U.S. __,

47 L. Ed .2d 444 (1976) ................................ 46,54
Fullerform Continuous Pipe Corp. v. American Pipe 

& Construction Co., 44 F.R.D. 453 (D. Ariz.
1968) ................................................  42

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ...........  44,45,48
Guerra v. Manchester Terminal Corp., 498 F.2d 641

(5th Cir. 1974) ...................................... 47
Guerrino v. Ohio Casualty Insurance Co., 423 F.2d

419 (3d Cir. 1970) ................................... 42
Ikerd v. Lapworth, 435 F.2d 197 (7th Cir. 1970) .........  42
In re Penn Central Commercial Paper Litigation,

61 F: R.D. 453 (S.D. N.Y. 1973) ......................  40
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d

1364 (5th Cir. 1974) ................................. 49
Knuth v. Erie-Crawford Dairy Coop. Assn., 395 F.2d

420 (3d Cir. 1968) ................................... 37,38
Macklin v. Spector Freight Systems, Inc., 478 F.2d

979 (D.C. Cir. 1973) ................................. 50

gage

iii



McDonnell-Douglas Corp. v. Green, 411 U.S. 292 (1973)....  4,44,53
McGuire v. Roebuck, 347 F. Supp. 1111 (E.D. Tex. 1972).... 43
Minyen v. American Home Assurance Co., 443 F.2d 788

(10th Cir. 1971)...................................... 41
NLRB v. Harvey, 349 F.2d 900 (4th Cir. 1965) ............  40
Parham v. Southwestern Bell Telephone Co.,

433 F. 2d 421 (8th Cir. 1970).........................  44,48,49,50
Patterson v. American Tobacco Co., 535 F.2d 257

(4th Cir. 1976)........................................  53,54
Patterson v. Newspaper and Mail Deliverers Union of 

New York and Vicinity, 384 F. Supp. 585 (S.D.
N.Y. 1974)............................................ 64

Pettway v. American Cast Iron Pipe Co., 494 F.2d 211
(5th Cir. 1974)......................................  55

Rogers v. International paper Co., 510 F.2d 1340
(8th Cir. 1975)   45

Rowe v. General Motors, 457 F.2d 348 (5th Cir. 1972) .... . 49
Sagers v. Yellow Freight Systems, Inc., 529 F.2d 721

(5th Cir. 1976)......................................  38>
Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).. 43
Underwater Storage, Inc. v. United States Rubber Co.,

314 F. Supp. 546 (D.D.C. 1970) ......................  40
United States v. Allegheny-Ludlum Industries,

517 F.2d 828 (5th Cir. 1975) ......................... 42
United States v. International Assn, of Bridge,

Structural and Ornamental Ironworkers, Civil
Action No. 71 C 559 (2)   4

United States v. Ironworkers, Local 10, __ F. Supp. __,
6 F.E.P. Cases 59 (W.D. Mo. 1973) ...................  36

United States v. Ironworkers, Local 86, 315 F. Supp.
1202 (W.D. Wash.), aff'd 443 F.2d 544 (9th Cir.
1971), cert, denied 404 U.S. 984 (1971) .............  36,49

United States v. N. L. Industries, Inc., 479 F.2d
354 (8th Cir. 1973) .................................. 44,45,46

Page

IV



Page
United States v. Sheet Metal Workers, Local 36,

416 F. 2d 123 (8th Cir. 1969) ........................  12,36,45,46
United States v. United Shoe Machinery Corp.,

89 F. Supp. 357 (D. Mass. 1950) .....................  40
United States v. United States Steel Corp.,

520 F. 2d 1043 (5th Cir. 1975)........................  38
United States v. Wood, Wire & Metal Lathers, Local 46,

471 F.2d 408 (2d Cir. 1973)   47,64
Walker v. Ralston Purina Co., 409 F. Supp. 101

(M.D. Ga. 1974) ...................................... 63
Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir.

1976) ................................................  48
Wright v. City of Montgomery, Ala., 406 F.2d 867

(5th Cir. 1969) ...................................... 43

Statutes and Rules
Federal Rules of Civil Procedure

Rule 23 ..............................................  2,37,38,
39,63

Rule 26 (d)............................................  42
Rule 42 (a)............................................  42

Title VII, Civil Rights Act of 1964
42 U.S.C. § 1981 ....................................  1
42 U.S.C. § 2000e et seq.............................. 1,3,5,16,

42,49,54
Other Authorities
17 Am. Jur. 2d, Contracts §§ 305,306 ....................  60
EEOC Guidelines on Employee Selection Procedures,

29 C.F.R. § 1607 ....................................  54
Public Law 94-559 ........................................  63
Kaplan, Continuing Work of the Civil Committee; 1966

Amendments of the Federal Rules of Civil Procedure 
(I), 1967, 81 Harv. L. Rev. 356 ....................  39

v



Page
5 Wigmore, Evidencet 3d Ed. 1940 § 1388 ...................  42
8 Wigmore, Evidence, § 2291 (McNaughton rev. 1961)   40
8 Wigmore, Evidence, § 2327 (McNaughton rev. 1961)   40
Wright and Miller, Federal Practice and Procedure:

Civil § 1785 .......................................... 38
Wright and Miller, Federal Practice and Procedure:

Civil § 1786 .......................................... 38

QUESTIONS PRESENTED FOR REVIEW

1. Was the District Court's decision to decertify the 
plaintiff class an abuse of discretion?

Points Relied Upon
KNUTH v. ERIE-CRAWFORD DAIRY COOP. ASSN., 395 F.2d 420 

(3d Cir. 1968)

2. Did the District Court err in refusing to admit 
plaintiffs' Exhibit 26A into evidence?

Points Relied Upon
DUPLAN CORP. v. DEERING MILLIKEN, INC., 397 F. Supp. 1146 

(D.S.C. 1974)
IN RE PENN CENTRAL COMMERCIAL PAPER LITIGATION, 61 F.R.D. 

453 (S.D. N.Y. 1973)
NLRB v. HARVEY, 349 F.2d 900 (4th Cir. 1965)

3. Did the District Court err in refusing to consider 
evidence contained in the record of the Government's Case?

vi



Points Relied Upon
(a) Admissibility under Rules 26(d) and 42(a), F.R.Civ.P.

BALDWIN-MONTROSE CHEMICAL CO. v. ROTHBERG, 37 F.R.D. 354 
(S.D. N.Y. 1964)

FULLERFORM CONTINUOUS PIPE CORP. v. AMERICAN PIPE &
CONSTRUCTION CO., 44 F.R.D. 453 (D. Ariz. 1968)

RULE 26(d), Federal Rules of Civil Procedure
RULE 42 (a), Federal Rules of Civil Procedure

(b) Judicially Noticeable
DUNCAN v. PEREZ, 321 F. Supp. 181 (E.D. La. 1970)
SHUTTLESWORTH v. CITY OF BIRMINGHAM, 394 U.S. 147 (1969)
WRIGHT v. CITY OF MONTGOMERY, ALA., 406 F.2d 867 (5th Cir. 1969)

4. Was the District Court’s finding of no discrimination 
against the named plaintiffs based on an erroneous view of the 
law?

Points Relied Upon
GRIGGS V. -DUKE POWER CO., 401 U.S. 424 (1971)
PARHAM v. SOUTHWESTERN BELL TELEPHONE CO., 433 F.2d 421 

(8th Cir. 1970)
UNITED STATES v. IRONWORKERS, LOCAL 86, 315 F. Supp. 1202

(W.D. Wash.), aff»d 443 F.2d 544 (9th Cir. 1971), cert. 
denied 404 U.S. 984 (1971)

UNITED STATES v. N. L. INDUSTRIES, INC., 479 F.2d 354 
(8th Cir. 1973)

5. Was the District Court's refusal to consider plaintiffs' 
claim of breach of the conciliation agreement error?

Points Relied Upon
EEOC v. MISSISSIPPI BAPTIST HOSPITAL, __ F. Supp. __, 11

EPD 5 10,822 (S.D. Miss. 1976)
vii



NOTE ON FORM OF CITATIONS

The following citations are frequently used in this
brief:

"PX - Exhibit offered by plaintiffs 
at trial.

"DX - Exhibit offered by defendants 
at trial.

"Tr. __" - Pages of the trial transcript.
"CA Tr. __" - Pages of the transcript of the

evidentiary hearing on plaintiffs' 
motion for class action certi­
fication.

"Ex .A Pages of exhibit A to plaintiffs' 
renewed application for introduc­
tion of certain evidence filed 
May 1, 1975 and excluded from 
evidence by the district court on 
May 9, 1975.

"JAC Admiss. No. __" - Paragraph of Plaintiffs' Request
for Admissions addressed to the 
Joint Apprenticeship Committee.

"Constitution ___" - Page or article and section of

npp ii

Constitution of the International 
Assn, of Bridge, Structural and 
Ornamental Ironworkers, AFL-CIO 
attached as an exhibit to Local 
396 Answers to Plaintiffs' Inter­
rogatory No. 5(20) (a).
Paragraph number of the District 

* Court's Findings of Fact.
"CL __" Paragraph number of the District 

Court's Conclusions of Law.

viii



IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

NO-r 76-1945

RONALD RULE, et al.,
Appellants,

v.
INTERNATIONAL ASSOCIATION OF BRIDGE, 
STRUCTURAL, AND ORNAMENTAL IRONWORKERS, 
LOCAL UNION NO. 396, et-al.,

Appellees.

On Appeal from the United States District Court 
for the Eastern District of Missouri 

Eastern Division

BRIEF OF PLAINTIFFS-APPELLANTS



STATEMENT OF THE CASE

This appeal comes to this Court from a final order and 
judgment on the merits rendered on October 6, 1976 in the 
United States District, Eastern District of Missouri, Eastern 
Division by the Honorable James H. Meredith. It presents several 
procedural and substantive issues arising out of this action 
challenging now familiar patterns of racial discrimination in 
employment in the building construction trades in violation of 
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e 
et seq. and 42 U.S.C. §1981.

Suit was commenced as a class action on March 14, 1973 by 
plaintiff Ronald Rule alleging across-the-board patterns of un­
lawful racial discrimination. (Orig. Complaint) Local 396, 
International Association of Bridges, Structural and Ironworkers
(hereinafter Ironworkers or Union) was named as defendant.

>(Orig. Complaint) By leave of the court granted on November 27, 
1973 plaintiff, amended his complaint to add the Ironworkers 
Joint Apprenticeship Committee of St. Louis, Missouri (herein­
after JAC) as a party defendant. On March 20, 1974 plaintiff 
filed a second amended complaint adding eighteen (18) individuals 
in their capacity as Trustees of the National Ironworkers and 
Employer Training Program (hereinafter sometimes referred to as 
Minority Training Program or MTP). The original complaint and 
both amended complaints were duly answered denying all material 
allegations. (Answers filed Apr. 30, 1973; Dec. 7, 1973; Mar. 13, 
1974; August 22, 1974 and Sept. 12, 1974).

-1-



Plaintiff Rule's charge of unlawful racial discrimination
was filed with the Equal Employment Opportunity Commission
(hereinafter EEOC) on June 30, 1966 thirteen (13) days after
he was refused an opportunity to work as an Ironworker or join

1 /its apprenticeship program. (PX-3, FF-3). EEOC did not
act on plaintiff's complaint. On or about January 15, 1973, 
Plaintiff Rule received a notice of Right to Sue from EEOC and 
so alleged on his complaint (PX-3).

On April 19, 1974 Judge Meredith held a hearing on class 
action determination at which time plaintiffs presented six (6) 
witnesses. (CA Tr.) The parties also entered into stipulation 
indicating the number of blacks who were potential members of 
the plaintiff class (Stip. filed April 24, 1974).

Plaintiff sought, pursuant to Rule 23(b)(2), ^.R. Civ. P. 
to represent all black applicants for membership in Local 396, 
its Minority Training Program or its Joint Apprenticeship Program 
since July 2, 1965. Plaintiffs also sought to represent all pre­
sent black journeymen, apprentices, trainees and service dues
receipt holders. (PI. Class Act. Memo, filed May 3, 1974).

2 /
On July 18, 1974, the district court certified a class 
composed of:

i / He filed a similar charge with the Missouri Commission on 
Human Rights (hereinafter MCHR). After Investigation the Iron­
workers and MCHR, on December 28, 1971, entered into a concilia­
tion agreement regarding plaintiffs complaint. In this action 
plaintiff alleged the Ironworkers failure to comply with the terms 
of that agreement. (Count III Pi. 2d. Amended Compl.)
2/ The district court did not specify under which subdivision 

of Rule 23(b) the class was certified (Order of July 18, 1974).

-2-



Negro persons who have been members or 
are members of said defendant Union and 
JAC, and Negro persons who are applicants 
or have been applicants for membership in 
said defendant Union and JAC.

and ordered that notice be sent to each member of the plaintiff
class. That notice which was sent to the above defined class
members and black members of and applicants for the MTP, informed
the class members of the pendency of the suit and provided them
with an opportunity to "opt-out." They were further advised:

Any j udgment in the action whether or not 
favorable to the members of the class will 
include all members who do not request ex­
clusion or who do not return the notice. 
and will finally adjudicate the rights, if 
any, or all class members who have not re­
quested exclusion (emphasis added)

Of the 460 notices mailed 79 were returned undelivered.
306 class members chose not to return the notice. Of the 75 
that were returned 50 class members requested exclusion, 17 
requested inclusion and 8 were either unsigned or improperly 
filled out. (Order of December 20, 1974). The district court 
then reversed itself and refused to permit the case to proceed 
as a class action. In the same order plaintiff was permitted 
to contact and join as named plaintiffs those who requested in­
clusion. (Order of December 20, 1974). Subsequently, Lonnie 
Vanderson, George Coe, Willie Nichols, Johnnie L. Brown,
Hiawatha Davis, and Willie West were added as parties plaintiff 
(Notice of Jan. 24, 1975).

During the pendency of this action, on November 9, 1973 
the Ironworkers and JAC entered into a consent decree with the 
United States resolving a §707, 42 U.S.C. §2000e-6, pattern and

-3-



practice suit alleging unlawful racial discrimination. At
trial plaintiffs unsuccessfully offered some of the proof de­
veloped by the United States Justice Department in that action. 
(Tr. 324-367 and PI. Ex. A).

At trial, held on three consecutive days, April 14-16,
1975, plaintiffs offered statistical and live proof of a pervasive 
pattern of unlawful racial discrimination and its effects on the 
named plaintiffs. Plaintiffs also presented proof of violation 
of the conciliation agreement and the consent decree. Finally 
plaintiffs offered unrebutted proof of monetary loss and plain­
tiffs attorneys fee entitlement as of that time. After trial 
the parties presented post-trial briefs. Plaintiffs urged that 
they were entitled to relief not only on the basis of the statis­
tical evidence presented but also on proper application of the 
standards set by the Supreme Court in McDonnell-Douglas v. Green, 
411 U.S. 292 (1973).

Post-trial briefing was completed on March 26, 1976. On 
October 6, 1976 the district court rendered its decision dismiss- 
ing plaintiffs complaint. The court found "no evidence" that 
plaintiffs had been discriminated against, upheld the defendant's 
reintroduction of unvalidated tests for the apprenticeship pro­
gram, found the manner of referral of apprentices and minoritv 
trainees to be non-discriminatory, refused to consider plaintiff 
Rule's claim of breach of the MCHR conciliation agreement, refused 
to act on clear proof of violations of the consent decree and 
dismissed the action. (FF, CL)

Notice of appeal was filed on October 29, 1976.

3 / That action captioned United States v. International Assn. 
of Bridge, Structural and Ornamental Ironworkers, Civil Action 
No. 71 C 559(2) was pending before Judge Regan.

3 /

-4-



STATEMENT OF FACTS
A. Introduction

In order to better understand the Union as it impacts 
on the employment opportunities of blacks and other minorities, 
a short description of its institutions and their functions is 
useful. A more detailed description appears in subsequent 
subsections of the Statement of Facts.

1. The Union and Its Collective Bargaining Agreements 
Local 396 is a labor organization within the meaning of 

42 U.S.C. §2000e-(d). It is the St. Louis, Missouri affiliate 
and subject to the constitution of the International Association

± Jof Bridge, Structural and Ornamental Iron Workers, AFL-CIO 
(hereinafter International (see Ans. PI. Interrog. No. 5(20) (a) 
at Art. IX, Sec. 4)) and is an affiliate of the Building and 
Construction Trades Council of St. Louis, AFL-CIO (e.g. see

)
3/19/70, 6/18/70, 3/5/70, Minutes of Executive Committee in 
PX-24). Through its collective bargaining agreements with the 
Association of General Contractors of St. Louis, Concrete 
Contractors Association, Site Improvement Association, Erectors

I
and Riggers Association and 92 independent building contractors- 
(FF 22 and Ans. PI. Interrog. No. 10), the Union exercises vir­
tually exclusive control of employment in the building and 
construction ironwork trade in the St. Louis, Missouri

4 / The International is not a party to this action.
5 / Neither the contractors nor the contractor association are 

parties to this action.

-5-



area. It also effectively controls training opportunities
within the trade. (JAC Ans. to Govt. Interrog. No. 14).

Under the terms of collective bargaining agreements, con­
tractors are required to look first to the Union for workmen 
(e.g., see PX-52 at Art. I, Sect. 1.03). Only if the Union 
fails to provide workers may a contractor seek employees else­
where (e.g., see PX-51 at Art. 1, Sect. 1.03). Any employee 
who is not a member of the Union or who does not possess a 
"permit” is subject to discharge upon demand by the Union 
(e.g., see PX-51 at Art. 4).

Today there are four categories of ironworkers permitted 
to work within the territorial jurisdiction of the Union. They 
are journeymen, permitmen, apprentices, and trainees. A worker's 
classification has a substantial effect on his opportunity to 
find employment and his wage rate.

2. The Journeyman Ironworker >
Journeymen are fulfledged Union members. They alone 

select Union officers and by their vote, determine Union policy, 
including the ratification or rejection of collective bargaining 
agreements. They receive the highest ironworker wage rate (here-

6 /

6 / Prior to August 1972, Local 396 exercised exclusive control 
of all employment of employees in the iron work trade in the city 
and county of St. Louis (see PX-51 and PX-52 at Axt. 2, Sect. 2.02). 
It also asserted jurisdiction over construction work in several 
outlying counties on the Missouri side of the Mississippi River 
(See Id_. at Art. 2, Sec. 2.03). In August 1972 Local 396's terri­
torial jurisdiction was expanded to include exclusive control over 
the following Missouri counties: St. Charles, Jefferson, Franklin,
Lincoln and Warren. (See DX-E at Art. 2, Sect. 2.02). As of the 
time of trial two-thirds of the Union membership lived in the 
Metropolitan St. Louis Area. (Tr. 544).

-6-



inafter referred to as journeyman's wages) and have an un­
restricted right to solicit work. By virtue of a collectively 
bargained provision of the Union's contracts they are always 
selected as job foremen and superintendents (e.g. see PX-51 at 
pp. 20-21), and, in that capacity, exercise the traditional 
management prerogatives to hire, fire, and assign other iron­
workers (e.g♦ see PX-51 at p. 34 and Quick Deposition at 
pp. 24-25).

3. The Permitman
Permitmen are not Union members, but they earn journeyman's 

wages (Tr. 578, 678). The appellation "permitman" derives from 
the fact that they hold service dues receipts or "permits" which 
entitle them to work in the trade (Tr. 451-452). 
of permits is controlled by the Union's Examining Board. See 
P • 9, infra. Permitmen are not permitted to solicit work
but, at least until 1972, this rule was difficult to enforce 
(Tr. 568-569).

4. The Apprentice
Apprentices are unskilled men who have been formally in­

dentured into JAC (Constitution at p. 82). JAC is the tradi­
tional Ironworker training program and is funded by building 
contractor contributions (FF No. 36). Apprentice are Union mem­
bers but have no voice in Union affairs and are otherwise subject

7 / In 1975 the journeyman wage rate was $9,275 per hour.
IDX-E at p. 11).

7 /

-7-



to a variety of restrictions. (Constitution at pp. 81-84).
Apprentices start at 60% of the journeyman's wage and receive

infra. While nominally prohibited from soliciting work, appren­
tices do solicit with the knowledge and approval of Union 
officials. (See n. 14, infra.)

5. The Trainee
Trainees are minority (mostly black) ironworkers who are 

enrolled in the MTP (FF No. 46 ). The MTP has been in exis­
tence since 1970 and is designed to provide training opportunities 
for minorities and hard core unemployed whites who are over the

any collective bargaining agreement until 1973 (FF No. 45) and 
are not Union members (Tr. 473. Myers Deposition at p. 21).
The MTP is funded by the United States Department of Health, 
Education and Welfare. Some of the black trainees were skilled 
in the trade prior to joining the program (Tr. 471 ). Like
apprentices, trainees receive a fraction of the journeyman wage. 
See pp.27-28,infra. They are not permitted to solicit work but 
had that right for a three-year period between November, 1973 and 
November, 1976. (See Consent Decree).

8 / These increases are awarded automatically provided the 
apprentices has attended classes regularly (Adam Deposition at 
pp. 45-46). Performance on the job or in class is not a factor 
Id. p. 61, 46).
9 / The apprenticeship program is essentially limited to persons

under age 30 (FF No. 38 ).

fractional increases at six month intervals 8 / See p. 28

(FF No. 43) Trainees were not covered by

-8-



6. The Examining Board

The Union's Examining Board is the body comprised of
elected union officials that is charged with responsibility for

10/determining individual eligibility for union membership

(See Constitution at p. 57). It also determines individual 
eligibility for permits (Constitution at p. 97), and has the 
authority to revoke permits (Tr. 213).

B* History, of., Raci al P.1 ,sce.imiriaji.iQii

Prior to 1964, the membership of Local 396 was all-white
12 /

(Tr. 680) . A person seeking membership in the Union was 
required to be 18 years of age or older, complete the Union's 
two-year apprenticeship program or work on service dues receipts 
within the territorial jurisdiction of Local 396 for six months, 
pass a simple demonstration test of skill in the trade and pay 
an initiation fee (Tr. 624, 657, Ex. A at pp. 40-41). Since 
skill in the trade is learned on the job (Ex. A at p. 45) and

10 / The Examining Board issues seven kinds of journeyman cards.
They are rodman, structural, rigging, fencing, welding, ornamental 
and general (Ex. A at p . 52). In some ironwork locals, but not 
Local 396, the type of card held defines the type of work a man 
is permitted to perform (Tr. 447). In such locals only the holders 
of general journeyman cards are permitted to work in all areas of 
skill. The applicant determines the type of card he wants. The 
Examining Board then administers an examination which tests his 
skill in that particular area of the trade (Ex. A at pp. 17-18) . 
Applicants for a general journeyman's card are tested in all areas 
of skill.

In fact, the first black was not admitted to membership until 
1967 (Local 396 Ans. to PI. Interrogs. No. 2 and Tr. 688).
12/ Qualification for membership is determined by the Examining
Board, (Constitution at p. 57). The membership of the Examing Board 
as well as all otner elective and appointive positions have axways 
been white (PI. Interrog. 21 and Ex. A at p. 2).

-9-



13/
■at least one area of skill was easy to learn, gaining
Union membership was a simple matter for anyone who was able to
work and train for six months.

There were certain distinct advantages to having a
journeyman's card. Journeymen, and no others, were entitled
to solicit work directly (Tr. 782, 453) and were the first to
be referred for work (Tr. 682). Apparently these rules were 

14/
often ignored, but the Union retained the power to
enforce them.

A substantial number of ironworkers chose not to become 
journeymen. Instead, they chose to work on service

13 / One can gain skill as a rodman in just two to six months 
(Tr. 193 & Ex. A at p. 29).
14 / Charles Adam, coordinator of JAC, testified at a deposition 
taken by the Government and described how the system worked in 
the case of apprentices:

Q. (by Mr. Zaragoza) Going back to the work
procedure for apprentices, can apprentices, 
to your knowledge, solicit their own work?
There's a rule that says an apprentice cannot solicit 
his own work, but its not adhered to to the point 
that says if a job is offered to this apprentice 
and its okayed by the Business Agent, if he's there 
at the time, or if I'm there at the time, or if they 
call me on the phone and says, Hey, Chuck, I'm 
getting laid off tonight, but the contractor next 
to us, or the subcontractor on the job can use me, 
can I go to work for him, sure, in other words, he 
can call somebody and ask them, but all he has to 
do is let the —  Business Agent, and myself, and the 
people involved in the work everyday, let them 
know whats going on" (at pp. 22-23).

-10-



dues receipts as "permitmen." (Tr. 650) . An applicant for
a permit was required to appear before the Union's Examining
Board, obtain its approval, and pay an established fee
(Constitution at p. 97, Ex. A at pp. 34-35). Permitmen earn
the same wages as journeyman ironworkers (Tr. 578, 678,
Deposition of J. J. Hunt, Jr. at pp. 59-60). High School and

16/
college students, often the relatives of ironworkers, found 
summer employment in the trade as permitmen (Tr. 193, 605-06).
Of course, this was an attractive avenue for the unskilled but 
privileged to learn the trade on the job (Tr. 193, 394, 605-06). 
This was also the means by which one could obtain the requisite 
six months of work in the trade within the territorial iurisdic-

17/
tion of Local 396 (Tr. 651) .

15/

18 /
The Union also ran an apprenticeship program (Tr. 508-09) 

It was a two-year program (Tr. 508-09). Applicants were not

15 / Meetings of the Examining Board to screen applicants for 
permits were not regularly scheduled. Sometimes an applicant 
would be screened immediately (Ex. A-34). Less fortunate applit 
cants were required to wait until the Board chose to consider 
applications (Ex. A-35).
16_/ See Quick Deposition at pp. 23-24, Tr. 193, 605-06 and 
Ex. A-9. Mr. Quick, a contractor, testified that all summer 
students were the relatives of union members.
17 / At least 172 of the approximately 570 persons admitted to 
membership since 1961 had gained their skill in the trade as 
permitmen (see Ans. to Govt. Interrog. No. 6). Only one,
Henry Joiner, is black, and he was permitted to take the journey­
man's examination only after efforts to dissuade him failed.
(See Tr. 196-97) .
18 / This program too was largely the preserve of the friends 
and relatives of union members (Ex. A at p. 28). At least 
until 1973, the apprenticeship continued to be a major avenue 
of entry into the trade for the friends and relatives of iron­
workers (JAC Admiss. No. 43 and Ex. A at p. 27).

-11-



required to meet educational requirements or take aptitude tests 
(Tr. 511-12, JAC Admiss. No. 30). Apprentices earned less than 
journeymen and permitmen but gained exposure to all areas of the 
trade (JAC Standards at p . 10). Like all other applicants for 
journeyman union membership, graduate apprenticeshwere required 
to appear before the Examining Board and be tested. Typically, 
they received general journeyman cards.

By 1964, the federal government and St. Louis area civil 
rights organizations began to pressure the Union 19/ and contrac­
tors for an end to the exclusion of blacks from the trade.
(Tr. 29, 684, 688, 21-22 and L. Strauss Deposition at p. 30-31). 
Correspondingly, the tide of black applicants for entry into the 
trade began to rise. (E.g. see Tr. 14, 26, 382). At the insis­
tence of a contractor who had a contract to build a federally 
subsized low income housing project, the Union sought out two 
blacks who worked in an ironworker shop local and provided them 
with permits (See L. Strauss Deposition at pp. 29-33 and Tr. 688, 
682-83). Of course, the two blacks did not know the ironworkers 
who hire (Tr. 682-83) and could not solicit work (Tr. 682). As a 
consequence, they found little work (Tr.683). But when contractors 
needed blacks in order to comply with the requirements federally 
subsidized construction contracts, they found themselves being 
shuttled from job site to job site.

At the same time, the Union began to raise formal barriers 
to work in the trade. In 1964 possession of a high school diploma

.19/ The struggle to open the doors to the construction trades 
in St. Louis to minorities and the trade unions intractable 
resistence has come to the attention of this Court previously.
See United States v. Sheet Metal Workers, Local 36, 416 F.2d 123 
(8th Cir. 1969) .

-12-



or a G.E.D. was imposed as a requirement for entry into the20/
apprenticeship program (Tr. 511). In 1965 a battery of
aptitude tests were introduced to aid in the selection of
apprentices (JAC Admiss. No. 30). In 1967 the Union introduced
a written test in addition to the demonstration test previously
administered to all applicants for journeyman cards. (Tr. 657).

Predictably these rules had the effect of excluding a
21 /

disproportionate number of black applicants. In early 1975,
plaintiffs examined all of the applications for JAC found in the 
Union's files and compiled statistics which disclose discriminatory 
impact of the JAC eligibility and selection procedure. (See PI. 
Req. for Admission filed 3/13/75). Of the 1180 racially identi­
fiable applications found, 202 (17%) had been filed by blacks.
Two hundred ninety of the 978 whites (30% succeeded in gaining 
admission. Just 22 of the 202 blacks (11%) were similarly success­
ful. (See Exhibit I of PI. Req. for Admission filed 3/13/75.)
The Union's Answers to Plaintiffs' First Interrogatories also 
disclose the slow progress of blacks in achieving union membership.

9 n___/ But this requirement was not consistently applied to whites.
At least one white, Edward Koeller who entered the apprenticeship 
program in 1968, had less than 4 years of high school (See Ans. 
to Govt. Interrog. No. 6 at p. 35).
21___/ July 1969, Joseph Hunt, Sr. reported on the experience of

the 38 blacks who had applied for admission to the apprenticeship 
program since 1964 (PX-26(b)). Only two had successfully hurdled 
the barriers mounted by the Union and gained admission to the pro­
gram (See Hunt's letter to Hardesty located in PX-26(b)).
-22___/ These figures can be misleading. They include both journey­
man members and apprentice members. The dramatic increase from 
two (2) blacks in 1968 to eleven (11) in 1969 is due to the indenture 
of seven (7) blacks into the apprenticeship program in 1969 
(JAC Admiss. No. 39). As late as 1971 there were only five black 
journeyman ironworkers (Ex. A. at pp. 4-5).

-13-



Year Whites Blacks
23/

% Black
1965 1378 No record available 0
1966 1447 No record available 0
1967 1487 1 0.06
1968 1610 2 0.12
1969 1632 11 0.67
1970 1700 18 1.05
1971 1665 19 1.13
1972 1615 23 1.40
1973 1601 23 1.42

In 1970, Local 396 established a minority training program 
which was purportedly designed to afford blacks, other minorities, 
and hard core unemployed whites an opportunity to work in the 
trade and earn union membership (Tr. 403, Ex. A at pp. 44-45).
If anything, this program served to further perpetuate the exclu­
sion of blacks (see pp.27-29,infra). At the same time, the Union 
embarked on a program to reduce and ultimately eliminate the 
availability of permits (Tr. 213). Black permit holders were 
advised to enter the MTP and take a cut in pay (see p.28-29, infra) 
if they wished to continue to be employed in the trade. Several 
did (Tr. 471) but the Union was not content to have them suffer 
some income loss. It insisted that trainees start at a lower wage 
rate than apprentices (see p. 28 , infra) and that those trainees 
who had prior experience in the trade start at a lower rate of pay 
than the contractors were willing to pay I (Quick Deposition at 
p. 45-47, Tr. 498-499).

23/ The first black was admitted to membership 1967 
(Tr. 680, 688).

-14-



By 1971, the United States Department of Justice sued in"
3-H effort to force the Union to eliminate its unlawful practices,
but the Union's efforts to prevent the entry of blacks into the
trade continued unabated. Its next step was bold, and its effects
devastating to blacks: In 1972 the union went on strike and forced
area contractors to incorporate a grandfather clause in the new
collective bargaining agreement (Ex. A at p . 63 and DX-E at pp.
40-41). This clause, called a ’’Letter Agreement," established a
new classification system which gave first preference for job
openings to "Qualified Journeymen." Qualified Journeymen were
Union members who had worked a minimum of 6000 hours in the trade
within the territorial jurisdiction of Local 396 prior to the

24 /
effective date of the contract (DX-E at p. 41). Its effect
was to limit the first choice of jobs to persons who had been

25/
working in the trade for over four years (Tr. 545-46, Ex. A
at p. 64). Of course, few blacks had succeeded in achieving the 
requisite 6000 hours of work in the trade as of November 29, 1972 
(DX-E at p. 39). To further ensure that those with less than 
6000 hours work in the trade had little opportunity for work, 
the Letter Agreement prohibited such persons from soliciting 
work (Deposition of W. H. Johnson at pg. 89) and required that 
they be laid off before those with more than 6000 house (DX-E 
at p. 41). In addition, the new contract for the first time 
established a reporting mechanism that permitted the union to 
effectively enforce its new rights (see DX-E at Sect. 7.20).

2 4 / JAC and MTP graduates were also defined as "Qualified 
Journeymen." (DX-E at p. 41).
25/ JAC and MTP graduates would normally qualify in three years 
since they are both three-year programs. But they pay the price 
of working at reduced rates of pay during those three years.

-15-



On November 9, 1973, four months before it was scheduled
to lose authority to enforce Title VII in the private sector, 
the United States Department of Justice entered into a consent 
decree which altered some of the unlawful union practices for a

2

three-year period. Under the terms of the consent decree, the
union was enjoined from administering unvalidated tests, was
prohibited from applying the 6000 hour provision to blacks and
was required to meet established goals for the admission and
retention of blacks into JAC and the MTP (Consent Decree at 118) .
The consent decree made no provision for back pay. The Union
has failed to abide by the terms of the consent decree and the 

28 /
Government has not sought enforcement.

26/ See 42 U.S.C. § 2000e-6.
2^/ However, it was permitted to use the results of tests admin- 
stered by the Missouri State Employment Service (Consent Decree 
at If8) . See n. 43 , infra.
2^/ The EEOC has been responsible for monitoring and enforcement 
since March of 1974.

-16-



C. Employment In the Ironwork Trade

Today as in the past, employment in the ironwork trade
is obtained primarily by word-of-mouth contact among ironworkers
(Tr. 635). Contractors hire journeyman ironworkers as foremen

29/
and superintendents (Tr. 202) and they in turn develop and 
maintain lists of ironworkers who are the first to be called 
when there is work. (see Quick Deposition at pp. 12-13).
Whether or not called by a superintendent or foreman, ironworkers 
are able to find work through an informal but highly developed 
information network within the trade (Quick Deposition at p. 12).
As word of a new project gets around the trade, ironworkers who 
have a right to solicit are able to call and get work (Quick 
Deposition at p . 12). Only when a contractor is unable to find 
an adequate number of workers does he resort to the union for 
referrals. Thus, ironworkers having the right to solicit have 
a decided advantage over those who do not. Blacks generally are 
outside information networks and therefore have less of an oppor­
tunity to find work (Quick Deposition at p. 17). Since they also
are not journeymen ironworkers, they have little recourse but to

30 /sit in the union hall and wait for a referral (see Tr. 682-83,
134) .

Blacks who are in the MTP are at a triple disadvantage.

25/ The collective bargaining agreements require contractors to 
assign journeyman ironworkers as foremen. (see PX-51 at p. 20).
30_/ Blacks who have achieved journeyman status obtain most of 
their work through solicitation (Tr. 219).

-17-



They are not permitted to solicit and are outside the infor- 
32 /

mation network (Quick Deposition at p. 17). The third dis­
advantage derives from the separate structure of JAC and the 
MTP. JAC is the traditional and largely white Ironworker appren­
ticeship program. The MTP is almost exclusively black (Tr. 429-30). 
Foremen and Superintendents can and do contact the coordinators 
of both programs directly (Tr. 535) If they call the
union hall for an apprentice, the union obliges by referring an 
apprentice (Hunt, Jr. Deposition at p. 62-63). If they seek
referral of a minority, the union again obliges and refers a 

33/
trainee (Hunt, Jr. Deposition at p. 63). Thus, the separate
structure of the two training programs provides a ready mechanism
for contractors to discriminate.

The effects of the dual training program structure on the
employment opportunities of blacks are substantial. In 1975,

34/
black trainees worked an average of 575.68 hours (Appendix A

21/

31/ For the three years that the Consent Decree was in effect 
blacks, whether in the MTP, JAC or on permit, had the right to 
solicit (Consent Decree 27, TR. 535-36).
32/ While blacks generally are outside the information network, 
those enrolled in JAC have some access to the grapevine of infor­
mation through their contact with white apprentices who are often 
the relatives of journeyman ironworkers (Ex. A at pp. 27-28).
33/ Further, if a contractor calls for referral of a journeyman 
and’none is available for referral, the contractor is advised of 
his option to select an apprentice or trainee for referral (Hunt, 
Jr. Deposition at p. 63).
34/ Trainees entering the MTP after September 1974 averaged less 
than 100 hours of work in 1975 and are excluded from this average. 
(Appendix A to Plaintiffs' Post-Trial Brief).

-18-



to Plaintiffs' Post-trial Brief). In that same year, black
apprentices worked an average of 741.93 hours. (Appendix A
to Plaintiffs' Post-Trial Brief). A comparison of the two
reveals that black apprentices were employed on an average of

35/
1.289 times as many hours as trainees.

D. The Joint Apprenticeship Program

JAC is administered by a committee comprised of five con­
tractor and five Union members (JAC Admiss. No. 2). It controls 
and administers the apprenticeship program in conformity with 
published standards (JAC Admiss. Nos. 4 and 12), determines the 
size of each apprenticeship class (Tr. 618-619), interviews, 
rates and selects apprentices (see JAC Admissions). Since 
February, 1970, the day-to-day handling of the program has been 
handled by a full-time coordinator who is a member of the Union 
(JAC Admiss. No. 5). The current apprenticeship program is a 
three-year program of on-the-job training accomplished by a 
minimum of 144 hours of related classroom and shop work per year 
(JAC Admiss. No. 7).

35/ A substantial number of the white apprentices are the sons 
of ironworkers. See n. 18, supra. In making the hours comparison 
it is assumed that the higher average number of hours of work that 
white apprentices enjoy is attributable to the effects of nepotism 
within the trade. This factor is eliminated by comparing trainees 
with black apprentices. White apprentices average 811.40 hours of 
work. Apprentices overall averages 1.401 times as many hours of 
work as trainees. (Appendix A to Plaintiffs' Post-Trial Brief).

-19-



1. JAC Admission Standards

Local 396 has conducted an apprenticeship program in one
36 /

form or another for decades. Published qualification stan­
dards for admission to the apprenticeship program were formulated 
in 1964.

The following describes the selection process as it 
existed prior to the entry of the Consent Decree. Since 
then JAC has revised the interview questions somewhat and has 
altered slightly the weight given each of the factors that go to 
make up the final rating scores on which applicants are selected. 
(Compare JAC Admissions, Attachment 1 with DX-L and JAC Admissions, 
Attachment 2 with DX-M). Otherwise, the selection process re­
mains essentially unchanged. (Tr. 640-641).

The current basic eligibility requirements for application 
to JAC are:

a. Age - between 18 and 30. Up to age 35 for men 
honorably discharged from the armed services;

k* Possession of a physician's certificate of physical 
fitness;

c. United States citizenship or declaration of inten­
tion to become a citizen; and

d. Possession of a high school diploma or G.E.D.
(JAC Admiss. No. 13, DX-J).

Applicants who fail to meet each of these requirements are
37/

precluded from further consideration (Adam Deposition at p. 53).

36/ a two-year apprenticeship program was in existence in 1947 
(EX. A. at p.l).
37/ it was Plaintiff Rule's failure to meet the high school 
diploma requirement that precluded him from further consideration 
for JAC in 1966 (Tr. 39 and see p.30, infra) .

-20-



Applicants who meet the above requirements must then take an
38 /

aptitude test and submit to an oral interview conducted by
39 /

a team of two members of JAC (JAC Admiss. No. 14).
In the oral interview, the applicant is asked a series of 40 /

twenty questions for each of which he receives zero or one 
point depending on whether or not his answer is satisfactory 
to the interviewer. (see JAC Admission No. 20 and Attachment 1). 
Zero to ten additional points are awarded based on the inter­
viewer's opinion of the applicant's "sincerity of interest and 
attitude." (see JAC Admission, Attachment 1). The oral inter­
view constitutes up to thirty (30) of the one hundred (100) 
possible points earnable on the JAC rating scale (JAC Admission, 
Attachment 2).

38 / Oral interviews are conducted once a year (JAC Admiss. No. 15)
39 / Each team consists of one Union and one contractor repre­
sentative (JAC Admiss. No. 16).
40 / Among the questions asked are the following:

2. Have you ever taken part in any group activity 
such as scouts, sports, etc.

3. Are you now affiliated with any community activity 
such as scouting, etc.?

6. Have you ever held a full-time or part-time job?
7. Have you ever been fired from a job? If so, why?
9. What are the duties of an ironworker?

10. Have you ever watched the progress of a construction 
job?

13. Do you know the apprentice wages?

-21-



The interviewers also rate and allocate points up to a 
fixed maximum based on the following factors:

Factors Maximum Points
Education 
Physical Ability 
Past Experience 
References
REsidence (geographic jurisdiction of JAC) 5
Military Service 5

Finally, an applicant can earn up to 15 points based on
scores received on a battery of aptitude tests (see Attachment 2
to JAC Admiss.). The test battery was first required in 1965

42/
and was administered each year until 1973 when it was dis-

43/
continued pursuant to the Consent Decree (Adam Deposition at 
pp. 19-20). It was reintroduced in 1975 (Tr. 620-21).

15-
10
10
10

41/

^ / The applicant automatically received fifteen (15) points if 
he possesses a high school diploma or G.E.D.
^  / Between 1965 and 1972, JAC used the Flanigan Aptitude 
Classification test (FACT) covering six subjects. In 1972 and 
1973, JAC used a similar test battery called the Flanigan 
Industrial Test (FIT) (see JAC Admiss Nos. 31 and 32). Between 
1965 and 1973, JAC also used a verbal aptitude test in addition 
to FACT and FIT (see JAC Admiss. No. 34).
43 / JAC never discontinued the use of these tests. In 1974 
it employed the results of the FIT administered by the Missouri 
State Employment Service (Ans. to PI. 3d. Interrogs. No. 11 and 
Adam Deposition at p. 21). When, in 1975, the Missouri Employment 
Service refused to continue testing applicants for JAC, JAC in­
formed EEOC of its intention to resume its administration of the 
FIT. (Tr. 668). The EEOC failed to require validation and did 
not formally object to its reintroduction. (Adam Deposition at 
pp. 1925, and TR. 336, 668, 671).

-22-



The applicants' scores on the interview are then added to
44/

the number of points earned on the aptitude test. Applicants
with total rating points above 70 are then ranked in order on
the basis of these scores (JAC Admiss. No. 26). Applicants
with total rating scores of 70 or below are rejected (Id.).

Each year JAC meets and pre-determines the number of
45/

apprentices to be indentured that year and the places are
46/

filled by the applicants with the highest scores. (FF No. 41). 
Hence the cut-off score for indenture varies from year to year 
(See Tr. 669-670, PX-43 through PX 47 and Ex. A at p. 29). For 
example in 1970, JAC indentured 92 apprentices (JAC Admiss. No. 39). 
The cut-off score was 80 1/2% (Tr. 613). In 1971, only 11 were 
indentured (Tr. 614, JAC Admiss. No. 39). The cut-off score 
was 88% (Tr. 615).

44/ A more detailed description of the JAC selection process 
and the use of the test battery including a description of how it 
is administered, scored and weighed is set forth in the JAC Admis­
sions Nos. 31 through 38. Sample copies of the tests themselves 
are attached to the JAC Answers to Plaintiffs' Interrogatory 
Number 24.
45/ The number of apprentices to be indentured has been the subject 
of sharp disagreement between contractors and Union officials. In 
1973, the contractors sought indenture of 70 apprentices. The 
Union insisted on limiting the number to 20 (Tr. 618-619). After 
a series of tie votes, the parties agreed to indenture less than 
40 apprentices (Tr. 619).
46/ The consent decree requires JAC to indenture a minimum of 
fifteen (15) minorities each year for three years (Consent Decree «[ 9 
In order to comply with this requirement JAC adopted the practice 
of filling the first fifteen places with the highest ranking minori­
ties and then filling the remaining slots with the highest ranking 
whites.

-23-



2 . Discriminatory Effect of JAC Selection Process

Blacks have been less successful than whites in gaining 
Admission to JAC. The 1970 Census data for the four Missouriizycounties within the territorial jurisdiction of Local 396
discloses that 51.62% of the whites over age 25 have completed 
high school as compared to 32.43% of the blacks in the same 
age group (JAC Admiss. No. 11). With respect to males 25 
years of age and older, 50.63 of the whites have completed high 
school (JAC Admiss. No. 11). While the requirement of a high 
school diploma for eligibility for JAC was approved in 1964 by 
the Bureau of Apprenticeship Training of the U.S. Department of 
Labor, it is not job related (See Hunt, Sr. Deposition at p. 107). 
Indeed, the possession of a high school diploma has never been a 
requirement for obtaining a journeyman ironworker card (Tr. 624).

As the following chart shows, blacks have not performed 
as well as whites during the oral interview stage of the admis-

>
sion process.

YEAR WHITE BLACK
NO. OF AVG. MEDIAN NO. OF AVG. MEDIAN
PERSONS SCORE SCORE PERSONS SCORE SCORE

1972 66 28.25 29.50 20 26.95 28.75
1973 105 28.41 29.50 27 27.22 28.00

(JAC Admiss. No. 29).

__41/ Those counties are St. Louis (including the City of St. Louis) , 
Franklin, Jefferson and St. Charles (Seen. 6, supra).

-24-



Nor have black applicants performed as well as white 
applicants on the test battery. The average and median rating 
points (maximum - 15) of whites and blacks for the years 1972 

and 1973 are as follows:

YEAR WHITE BLACKS
NO. OF 
PERSONS

AVG.
SCORE

MEDIAN
SCORE

NO. OF 
PERSONS

AVG.
SCORE

MEDIAN
SCORE

1972 78 5.76 6.00 25 3.25 3.00
1973 104 6.76 6.00 27 2.92 3.00

(JAC Admiss . No. 37).

As a net result blacks faired less well than whites at the
end
the

of the applicant selection process. The following chart
48 /

average and median total rating scores for all black
shows

and
white applicants who completed the entire application process for

49 /
the years 1972 and 1973.

YEAR WHITE BLACKS
■NO. OF 
PERSONS

AVG.
SCORE

MEDIAN
SCORE

NO. OF 
PERSONS

AVG.
SCORE

MEDIAN
SCORE

1972 66 83.44 85.00 20 78.22 79.25
1973 103 85.50 85.50 25 79.16 80.00

48/ These are the scores 
indenture in JAC.

used in the ranking of applicants for

49/ See also p.13 , supra.

-25-



The exclusion of blacks is further enhanced by the 
practice of selecting only those applicants with the highest 
scores. The following chart shows the range of scores received 
by the 1973 black and white applicants to JAC who received final 
rating scores above 70% together with accumulating percentages:

RANGE
SCORES

OF
WHITES

ACCUM.
% WHITE BLACKS

ACCUM.
% BLACK

95-100 4 3.74 0 0
90-94 1/2 25 27.10 2 7.14
85-89 1/2 36 60.75 6 28.57
80-84 1/2 29 87.85 11 67.85
75-79 1/2 10 97.20 4 82.14
70-74 1/2 3 100.00 5 100.00

107
(Attachment 5

28
of JAC Admiss.)

A similar pattern of scores appears for the 1975 class of applicant
RANGE OF ACCUM. 51/ ACCUM.
SCORES WHITES % WHITE BLACKS % BLACK
95-100 22 26.83 4 10.00
90-94 1/2 30f 63.411 3 . 20.00
85-89 1/2 13 79.27 9 50.00
80-84 1/2 10 91.46 8 76.66
75-79 1/2 5 97.56 2 83.33
70-74 1/2 2 100.00 5 100.00

82 30

50/ These figures are derived from the JAC report to EEOC dated 
February 21, 1976 which is included in PX-2.
51 / Includes one Spanish surnamed American.

- 2 6 -



Neither the aptitude tests nor any other part of the appren­
tice selection procedure has ever been validated in accordance 
with the EEOC Guidelines on Employee Selection Procedure (See 
JAC Ans. to PI. Interro. No. 31 and Tr. 672-673).

E. The Minority Training Program

Like JAC the Ironworker Minority Training Program is adminis­
tered by a committee composed of an equal number of contractor and 
Union representatives. The MTP was negotiated in August of 1970 
(Tr. 402-03). It is regarded as the Union's way of meeting its 
Equal Employment Opportunity obligation (Tr. 403). It is 
separate and apart from JAC. Effective control of the program 
resides in its coordinator who is a journeyman ironworker 
(Tr. 448, Myer Deposition at p. 23).

All trainees must be over age 30 (DX-I). Trainees are not
required to have completed high school (Tr. 405). Applicants are 
accepted year-round (Tr. 422) but no applicant is indentured into 
this program until the program coordinator has found him a job 
and he has experienced work in the trade (Tr. 415). Like appren­
tices, trainees may not solicit work but must rely on the coor­
dinator of the program to solicit for them (Tr. 404).

Although originally conceived as a training program for 
minorities over the apprenticeable age (DX-I and Tr. 403), the 
MTP is used as a device to segregate blacks and limit their work 
and earnings opportunities. It was established as a four-year 
program (Tr. 470) . The starting rate for trainees was pegged 
at 50% of journeyman's wages (Tr. 417). JAC was and is a three-

-27-



year program. Apprentices were started at 60% of the journey­
man wage (Tr. 417). The Union's only justification for imposing 
a longer training program and lower starting rate for trainees
was the absence of a high school diploma requirement for 

52/
trainees (Tr. 417). In late 1971 the MTP was changed
a three-year program with a 60% starting rate but apprentices 
continued to enjoy more favorable wage rates. Trainees were 
started at 60% and received 5% increments every six months.
(Tr. 417). Apprentices also started at 60% but received a 10%

JH/increment after the first six months and 5% increments thereafter 
Subsequent to the entry of the Consent Decree the MTP was further 
changed to accord wage rate parity of trainees to apprentices 
(DX-I) .

Upon commencement of the MTP, Local 396 began the practice 
of steering all minorities who sought work referral to the MTP 
(Ex. A at pp. 44-45). Blacks who were already working on permits

52 / Local 396 concedes that this requirement is not job related.
P- 24 ' supra.

53/ The following chart displays the increments as a percentage 
of journeyman's wage to which apprentices and trainees were entitled 
to since 1971.

PERIOD APPRENTICES TRAINEES DIFFERENCE
0 - 6 mos. 60% 60% 0%
6 - 1 2 mos. 70 65 5
12 - 18 mos. 75 70 5
18 - 24 mos. 80 75 5
24 - 30 mos. 85 80 5
30 - 36 mos. 90 85 5

(DX-J, 
to MTP Ans.

Tr. 417, and Local 
to PI. Interrog. No

Area 
. 3) .

Contract at p. 10 attached

28-



were forced into the MTP even though they were experienced in the 
trade (Tr. 213, 471). The immediate effect was a drastic 
reduction in pay. White permitmen continued to work and enjoy 
full journeyman wages (Tr. 660). Those blacks who remained as 
permitmen found themselves unable to obtain referrals as soon 
as the Union implemented the Letter Agreement. (DX-G, 1[ 6 and 11) . 
They then joined the MTP (Johnson Deposition at pp. 89-91).

Thus isolated, saddled with the triple disadvantage of 
trainee status (see pp.17-19, supra),and condemned to accept lower 
wages (see p.14, supra) trainees worked little and earned 
less. Predictably, the MTP has suffered from a high turnover 
rate. (Quick Deposition at p. 67). During the term of the
Consent Decree the lot of the trainee, as well as minorities in 
other classifications was somewhat improved. Minorities were 
permitted to solicit, competed with "gualified journeymen" for 
referrals and were not subject to automatic layoff before quali­
fied journeymen. (Consent Decree).

F• Effects of Local 396 Discriminatory 
Practices On The Plaintiffs

On June 16, 1966 (DX-A) Plaintiff Ronald Rule visited the
Union Hall seeking a work permit (Tr. 38). He had been refused
there for a permit (TR. 11) by the Director of the Federal job

54/
Training Program operated by the St. Louis Urban League

54/ The District Court found that Rule was referred to the 
Union Hall for the purpose of making application to JAC (F F 1). 
Rule was referred by Paul Craig (Tr. 36). Craig referred Rule 
for a work permit. (Tr. 11). There was no testimony to the 
contrary. At the Union Hall Rule did apply both for a permit 
and to JAC. (Tr. 38) .

-29-



(Tr. 10, 14). At the union office he was advised that the
Union was not issuing permits (Tr. 42). In fact there was a

55/
heavy demand for ironworkers. He was permitted to and did
fill out an application for admission to the ironworkers appren­
ticeship program (PX-A, Tr. 39). However, he was informed that
he needed a high school diploma, a doctor's statement of physical 
fitness and his Army discharge papers (Tr. 39 and F F 2). At
that time he was in good health (Tr. 100) but was one English
course short of meeting the requirements for a high school 

56 /
diploma (Tr. 35). In short, he was flatly rejected by the Union.

55 / one contractor described work opportunities in the iron­
work trade during that period as follows:

Q. (By Mr. Cronin) Okay. When was the last time 
they weren't able to furnish you with a man?

A. Oh, its been —  at least three or four years ago.
Q. What kind of men were you looking for on that 

occasion?
A. Anybody I could get, somebody that was breathing.
Q. The Union couldn't provide you even one breathing 

ironworker?
A. Well we —  yes, we had a —  quite a spell there —  

going back a few years, going back from —
0, I'd say probably from '65 to '69, '64 to '69, that 
five-year period there where there were just not 
enough people going around and we had a —  we brought 
in people - we'd have to send them to the Hall first, 
though. We'd send them to the Hall, they would issue 
them a permit and they would go to work, but we would 
send them down there along with a letter or something 
of that nature, telling them we had employment, and 
they would give them a permit, and we would put them 
to work. (Quick Deposition at pp. 19-20) .

56/ He subsequently obtained a G.E.D. in 1971 (Tr. 112).

-30-



He filed a letter charge with the EEOC (PX-3 and F F 3).
He also filed a discrimination charge with the Missouri 
Commission on Human Rights. The Missouri Commission commenced 
an investigation into Rule's Complaint. The Union then embarked 
on a deliberate campaign designed to delay and frustrate reso­
lution of Rule's Complaint (PX-26a). Not until some four years 
later when it sensed an atmosphere of confusion within the Office 
of the Missouri Commission did the Union decide to change its 
course and offer a settlement proposal. (PX-26a). On January 
20, 1S72 the Union and the Missouri Commission entered into a 
Concilation Agreement on Rule's complaint (PX-1 and F F 4). 
Neither the Commission nor the Union advised Rule of 
the agreement (Tr. 43-44). The Union had duly filed away the 
agreement and proceeded to violate its terms (see pp. 
infra). But fate intervened. Rule learned of the Conciliation 
Agreement during a chance encounter on the street with the 
director of the Urban League's federal job training program 
(Tr. 15-16, 43-44). Rule then visited the Commission and there­
after the Commission contacted the Union and arranged for Rule 
to visit the Union Hall for referral (Tr. 44-48 and Johnson 
Deposition at pp. 68-73).

-31-



57/
On August 1972 Rule went on his first referral (Tr. 51).

One day later the Union went on strike (Tr. 51, Johnson 
Deposition at p. 74) that lasted thirteen weeks (Ex. A at p. 630).
By the end of the strike the Union had successfully negotiated 
the Letter Agreement which was incorporated in the contract.
(Ex. A at pp. 63-44). Rule then returned to work at journeyman's

58/
wages (Tr. 52) and the season ended shortly thereafter.

On April 2, 1973 , Rule arrived at the Union Hall for
Referral. He learned that a new system of referrals had been
instituted and that he was no longer eligible for immediate 

59/
referral (Johnson Deposition at p . 89). He then left the 
Union Hall but returned on another day and discussed his pros­
pects for entered JAC or the MTP (Johnson Deposition at p. 91).

60 /
He was too young to qualify for the MTP but William Johnson, 
the Union Business Agent, arranged a waiver of that requirement 
in Rule's case (Johnson Deposition at pp. 91-92). Rule was 
offered the opportunity to enter the MTP and he accepted 
(Johnson Deposition at pp. 92-93 , Tr. 57-58). His wages imme­
diately dropped to 60% of journeyman wages (Tr. 58). At the 
time of trial in April of 1975 he was earning 80% of journeyman's 
wages (PX-27).

c n
3 '/ He had been issued a permit and was earning journeyman's 
wages (Tr. 52).
_̂ £_/ Work in the inronwork trade is seasonal (Tr. 548) .
Generally, the season runs from March through Thanksgiving (Tr. 548)

C Q3J/ See discussion of Letter Agreement p. 15, supra.
^  / Rule was 29.

-32-



2. Willie West
Plaintiff Willie West had been a member of the laborer's 

union since 1960 and was generally familiar with construction 
work (Tr. 238). He was not qualified as an ironworker but was 
confident he could learn with little training (Tr. 242). In 
order to earn more money and obtain better working conditions, 
he went to defendant's hall in 1969 seeking referral but was 
rejected (Tr. 236, 252). Indeed, no one would even talk to 
him (Tr. 253, 237). He returned to the Union Hall a second time, 
and was permitted to apply (Tr. 238) and appeared before the 
Examining Board (Tr. 253) but was not referred. Subsequently, 
in August, 1970, plaintiff West went to the Operating Engineer's 
union hall seeking work and was successful (Tr. 264). In 1971, 
he was offered admission to the MTP (FF 10) but declined the 
invitation because he was earning a higher rate of pay as an opera­
ting engineer than the ironworkers were willing to offer. (Tr. 260,24

At the present time he is a journeyman operating engineer.
(Tr. 234), and he is no longer interested in being an ironworker 
(Tr. 245).

3. Johnnie I. Brown
Plaintiff Johnnie I. Brown, age 41, had been a switchman 

at the terminal railroad until July, 1970 (Tr. 269). Since 
worK there was slow, he applied on July 27, 1970 for a referral 
(Tr. 269). He was given an application for the MTP which he

-33-



filled out. (PX-15, 270). He was then sent to the office of 
Construction Manpower, an organization which was assisting 
blacks seeking entry into the construction trade. (Tr. 271). 
There, he filled out another application and was told that he 
would be contacted but was not. (Tr. 291). He had no prior 
ironwork experience (Tr. 275). He quit the railroad in March, 
1973, and since then has been employed as a salesman in a retail 
clothing store (Tr. 271). He continues to have an interest in 
the MTP (Tr. 272) .

4. George Coe

P-*-aintiff George Coe applied for admission to defendant's 
JAC on March 18, 1970 (Tr. 281). He took the admission exam 
and presented his high school diploma and medical statement 
(Tr. 282). Though informed that he had passed the exam, plain­
tiff was not admitted to JAC (Tr. 283). His test score was not 
sufficiently high (Tr. 586-88). His score was 79 (Tr. 614).
That year the cut-off score was 80 1/2 (Tr. 613). In 1970, JAC 
indentured 78 whites and just 2 blacks into its apprenticeship 
program (Tr. 611).

5. Hiawatha Davis
Plaintiff Hiawatha Davis, age 29, applied to JAC on May 

14, 1973, through the Missouri State Employment Agency (Tr. 302). 
He took and passed the examination given by JAC but did not submit 
a medical statement because he was discouraged, having been 
advised that he might be required to move out of the State in 
order to find work (Tr. 307).

34-



6. Lonnie R. Vanderson, Jr.
Plaintiff Lonnie R. Vanderson, Jr., age 29, applied for 

admission to JAC on October 29, 1974 (Tr. 318). Plaintiff took 
and passed the exam with a score of 71 or 72 (Tr. 319 and PX-2). 
As of the time of trial, he had neither been accepted or rejected 
by JAC (Tr. 590-91). However, on the most recent list of appren­
tice applicants, he ranks number 109 of 111 applicants (PX-3,
JAC Report of Feb. 21, 1975).

7. Willie Nichols
Plaintiff Willie Nichols applied for admission to the 

MTP in February, 1973 (Tr. 694). He has never been contacted 
by Local 396 or its MTP (Tr. 694). On his own initiative, he 
has sat in on classes at the MTP and has checked on ironwork 
jobs (Tr. 706) .

-35-



ARGUMENT

The facts underlying the issues raised in this appeal are 
the now familiar pattern of racial discrimination in the building 
construction trades. E.g., see United States v. Sheet Metal 
Workers, Local 36, 416 F.2d 123 (8th Cir. 1969); United States v.
Ironworkers, Local 10, ___ F. Supp. ___, 6 F.E.P. Cases 59 (W.D.
Mo. 1973); United States v. Local 86, Ironworkers, 315 F. Supp.
1202 (W.D. Wash.), aff'd 443 F.2d 544 (9th Cir. 1971), cert, denied 
404 U.S. 984 (1971).

Present here are issues involving the district court's 
refusal to permit the case to' proceed as a class action, its 
refusal to consider certain evidence offered by plaintiffs, its 
refusal to enter findings of unlawful discrimination against the 
named plaintiffs and the attendant denial of relief, and the refusal 
to consider clear evidence of multiple violations of agreements 
entered into with two governmental agencies for the benefit of the 
plaintiffs and other blacks who were the victims of the defendants' 
unlawful practices. The district court declined to consider plain­
tiffs' class-wide claims and rejected plaintiffs contentions 
regarding the effects of those practices on the plaintiffs. Below 
plaintiffs discuss those practices in the context of plaintiffs' 
individual claims since their effects on plaintiffs have been 
direct and substantial. However, plaintiffs seek relief not only 
for themselves but for the members of the class as well. Defen­
dants' violations of the conciliation agreement is treated along 
with plaintiffs' request for review of the district court's refusal 

to grant plaintiffs' request for enforcement.

-36-



I. THE DISTRICT COURT'S DECERTIFICATION OF THE 
CLASS CONSTITUTES AN ABUSE OF DISCRETION.

A statement of the proceedings leading up to the certifica­
tion of the class order of July 18, 1974, and the subsequent decer­
tification of the plaintiff class is set forth at pp. 2-3, supra.
As of December 20, 1974, when the district court decertified the
class, there were at least 323 persons in the class. The district

61/
court was fully aware of that fact but nevertheless chose to 
decertify the class and limit further participation in the case to 
the 17 class members who affirmatively sought inclusion (Order of 
December 20, 1974). That decision was a clear abuse of discretion. 
See Knuth v. Erie-Crawford Dairy Coop. Assn., 395 F.2d 420, 428 
(3d Cir. 1968).

It must be remembered that the district court had previously
held an evidentiary hearing on plaintiffs' class action application
and had entered specific findings that plaintiff had met all of the
requirements of Rule 23, F.R.Civ.P. (see Memorandum of July 18,
1974). There was no subsequent evidence or finding that plaintiff
at any time failed to meet all of the requirements of Rule 23(a)

62/
as well as the requirements of Rule 23(b)(2), or (b)(3). Of the
61/ The district court wrote:

The Court is of the opinion, in spite of the fact that 
the notice stated that those not responding would be 
included in the class, the number indicating a desire 
to be included is so small in relation to the entire 
possible class that the request to make this a class 
action is denied. (Order of December 20, 1974).

62/ Whether or not the district court intended to certify the class 
under Rule 23(b)(2) is unclear. The district court's citation of 
Carr v. Conoco Plastics, Inc.. 295 F. Supp. 1281 (N.D. Miss. 1969) 
suggest that the court had a (b)(2) certification in mind but its 
notice to the class permitted class members to "opt-out" which

-37-



approximately 460 class members, 381 received notices (see December 
20, 1974 Order). Just thirteen percent (13%) of those who received 
notices requested to be excluded. This fact alone is not an ade­
quate basis on which to ground a decertification decision. At no
time did the court express any doubt as to plaintiffs' ability to

63/
adequately represent the remaining 323 class members (Order of
December 20, 1974). Nor did the court find that the requirement
of numerosity had not been met. Clearly, it is impracticable to
join over 300 people as named plaintiffs. See Sagers v. Yellow
Freight Systems, Inc.. 529 F.2d 721, 734 (5th Cir. 1976).

The impracticability of joining all of the remaining class
members is illustrated by the difficulty plaintiffs' counsel
experienced in attempting to contact and join the 17 class members

64/
that the court permitted to be joined. During the one month 
period allowed, he was able to contact and join only six (see 
October 6, 1976 Decision at p. 2). None of the six class members 
who testified at the April 19, 1974 class action hearing could be

62/ (cont'd)
suggests that it intended a (b)(3) certification. See Rule 23(c) 
(2), F.R.Civ.P.; Wright & Miller, Federal Practice and Procedure: 
Civil § 1786 at p. 144; and United States v. United States Steel 
Corp.. 520 F.2d 1043, 1057 (5th Cir. 1975). "
63/ Had there been some doubt, the appropriate procedure would have 
been to order further evidentiary hearings. Decertification of 
the class was not appropriate. See Knuth v. Erie-Crawford Dairy 
Coop. Assn., supra.
64/ The district court did not authorize the sending of a second 
notice to the remaining 306 class members (Order of December 20, 
1974). See Rule 23(e), F.R.Civ.P. and Wright and Miller, Federal 
Practice and Procedure: Civil § 1785.

-38-



It is thereached in time for them to join as named plaintiffsT 
avoidance of this kind of result that prompted the drafters of 
the 1966 revisions of Rule 23, F.R.Civ.P., to eschew adoption of 
an "opt-in" procedure for Rule 23(b)(3) type class actions. See 
Kaplan, Continuing Work of the Civil Committee; 1966 Amendments of 
the Federal Rules of Civil Procedure (I), 1967, 81 Harv. L. Rev. 
356, 397-398.

II. THE DISTRICT COURT ERRED IN REFUSING 
TO ADMIT PLAINTIFFS' EXHIBITS 26A.

During trial, plaintiffs offered into evidence a letter 
from Robert Kubie, an attorney, to Joseph Hunt, Sr., the Secretary- 
Treasurer of defendant Local 396 concerning settlement of the dis­
crimination charge filed by plaintiff Rule with the Missouri 
Commission in 1966. It was found in the Union's file of concilia­
tion agreements involving racial discrimination complaints that had 
been filed against the Union (PX-26A through PX-26E). The file was 
freely produced by the defendants pursuant to a notice to produce 
at trial (Notice to Produce at Trial). it was delivered to plain­
tiffs prior to the commencement of trial along with the other 
matters produced. The letter was offered by plaintiffs to demon­
strate the Union's continuing discrimination against plaintiff Rule 
and other blacks and its bad-faith handling of plaintiff Rule's

65/ The six are Don Rice, Byron Turner, Henry Joiner, Sam Smith, 
Earl Jones, and Bob Harris (see CA Tr.). The last three named did 
not, in fact, take the stand but the parties stipulated that if 
they had they would have added their endorsement of the suit (Id. 
atpp. 94-95). Henry Joiner's continued support for the suit Is’ 
evidenced by his appearance as a witness for plaintiffs at trial.

-39-



discrimination complaint before the Missouri Commission (see PX- 
26A). At no time prior to plaintiffs' offer of this letter into 
evidence on the afternoon of the second day of trial had the Union 
raised any objection to its production or use (Tr. 341). Only 
after plaintiffs directed the court's attention to the contents 
of the letter did the defendants assert the attorney-client privi­
lege (Tr. 347). The district court sustained the defendants' 
objection (Tr. 347). That ruling was plain error.

It is settled law that the scope of the attorney-client 
privilege is narrow. See 8 Wigmore, Evidence, § 2291 at 554 
(McNaughton rev. 1961) and NLRB v. Harvey, 349 F.2d 900, 907 (4th 
Cir. 1965). The privilege is intended to permit a client to consult 
freely and in confidence with his attorney thus making communica­
tions between a client and his attorney immune from discovery.
See united States v. United Shoe Machinery Corp., 89 F. Supp. 357 
(D. Mass. 1950). Voluntary disclosure of the communication to 
third parties necessarily extinguishes the confidentiality of the 
communication and operates as a waiver of the privilege. See In re 
Penn Central Commercial Paper Litigation, 61 F.R.D. 453, 463 (S.D.
N.Y. 1973). Here, the Union voluntarily produced the document 
which the district court excluded from evidence. In so doing, it 
destroyed any secrecy or confidentiality which is the rationale 
for granting the privilege. Id_. at p. 464. That the Union may not 
have intended to disclose the letter does not permit it to avoid 
its waiver of the privilege. See 8 Wigmore 2327 (McNaughton rev. 
1961); Underwater Storage, Inc, v. United States Rubber Co., 314 
F. Supp. 546, 548 (D.D.C. 1970)? and Duplan Corp. v. Peering

-40-



Milliken, Inc., 397 F. Supp. 1146, 1162 (D.S.C. 1974). Accordingly, 
Exhibit 26A should have been admitted into evidence over the defen­
dants' objection.

III. THE DISTRICT COURT ERRED IN REFUSING TO 
CONSIDER CERTAIN EVIDENCE CONTAINED IN 
THE GOVERNMENT'S CASE.

At trial, plaintiffs moved for the introduction of certain 
portions of the depositions and the union's answers to interroga­
tories contained in the record in the Civil Action No. 71-C-559(2) 
(Government's Case). The depositions offered were those of respon­
sible officials of one or more of the defendants in both the

66/
Government's Case and this case (Tr. 332) . The district court 
declined to rule from the bench (Tr. 334) and invited the parties 
to submit briefs (Tr. 708). After briefs were submitted, the 
district court denied plaintiffs' application without opinion (see 
Court Clerk's letter dated May 9, 1975).

A . Evidence from the Government's Case is Admissible 
Under Rules 26(d) and 42(a), F.R.Civ.P.

Dean Wigmore sets forth the test, now firmly imbedded in
the law, see Minyen v. American Home Assurance Co., 443 F.2d 788,
791 (10th Cir. 1971), that should govern the admissibility of
testimony taken in a prior litigation:

66/ Plaintiffs offered all or parts of the depositions of the 
following individuals: Herman McGowan, former Business Agent of
Local 396; Joseph Pizzimenti, former Union President; Clyde Quick, 
Leon Strauss, and William Pemberton, all contractors and members 
of the JAC; Mr. Quick is also a trustee of the MTP; Joseph Hunt, 
Sr., Secretary-Treasurer of the Union; Clarence Myers, coordinator 
of the MTP; Joseph Hunt, Jr., Union President; and William 
Johnson, Union Business Agent (see Ex. A).

-41-



It ought, then, to be sufficient to inquire whether 
the former testimony was given upon such an issue 
that the party-opponent in that case had the same 
interest and motive in his cross-examination that 
the present opponent has ... 5 Wigmore, Evidence,
3d Ed. 1940 § 1388.

Here the party-opponent in this case is the very party
67/

opponent in the Government's Case. in addition, the same counsel
represented the defendants in both cases. Finally, the very same

68/
issue of unlawful racial discrimination is raised in both cases.

The district court here erred in refusing to recognize as 
several federal courts have, see Fullerform Continuous Pipe Corp. 
v. American Pipe & Construction Co., 44 F.R.D. 453 (D. Ariz. 1968)
Baldwin-Montrose Chemical Co. v. Rothberq, 37 F.R.D. 354, 356 (S.D 
N.Y. 1964); and Guerrino v. Ohio Casualty Insurance Co., 423 F.2d
419, 421 (3d Cir. 1970), that Rules 26(d) and 42(a) when taken 
together authorize the use of the depositions and interrogatories 
offered by plaintiffs without a showing that the witnesses were 
unavailable.

62/ Thetrusteesof the MTP were not parties in the Government's 
Case (Tr. 334). However, they have the same interest in cross- 
examination as the parties present in that action. See Ikerd v. 
Lapworth, 435 F.2d 197 (7th cir. 1970). Indeed, the parties in 
the Government's Case had no difficulty imposing substantial 
affirmative responsibilities on the MTP even though it was not a 
named party (Tr. 334).
68/ They are separate causes of action. See United States v. 
Alleqheny-Ludlum Industries, 517 F.2d 828, 845 (5th Cir. 1975). 
The Government sued pursuant to its authority under Section 707 
of Title VII, 42 U.S.C. § 2000e-6. Plaintiffs' cause of action 
arises under Section 706 of the Act, 42 U.S.C. § 2000e-5.

-42



B. Both This Court and the District Court are 
Entitled to Take Judicial Notice of the 
Record in the Government's Case.

Even if the evidence offered by plaintiffs is not admissible, 
both this Court and the district court are entitled to take judi­
cial notice of the record in the Government's Case. See Shuttles- 
worth v. City of Birmingham. 394 U.S. 147, 157 (1969); Wright v.
City of Montgomery, Ala., 406 F.2d 867, 869 n.5 (5th Cir. 1969); 
Florida v. Charley Topping & Sons, Inc., 514 F.2d 700, 704 (5th 
Cir. 1975); McGuire v. Roebuck, 347 F. Supp. 1111, 1113 (E.D. Tex. 
1972); and Duncan v. Perez, 321 F. Supp. 181, 184 n.2 (E.D. La.
1970). Just as in the cases just cited, the facts and issues in 
this case are substantially the same as those at issue in the 
Government's Case. Accordingly, the Court may take judicial notice 
of all proceedings in that case. See Duncan v. Perez, supra.

IV. THE DISTRICT COURT'S FINDING OF NO UNLAWFUL 
DISCRIMINATION AGAINST THE NAMED PLAINTIFFS 
WAS BASED ON AN ERRONEOUS INTERPRETATION OF 
THE LAW.

Having determined not to permit plaintiffs to pursue their 
class action, the district court proceeded to ignore the effects 
of the defendants' unlawful policies and practices on the plaintiffs. 
It found "no evidence" to support plaintiffs claim of unlawful dis­
crimination by the defendants. It went on to opine that plaintiffs 
were "afforded ... every opportunity available" and that blacks 
have in many instances been given preference over white persons 
(FF 47). The district court failed to recognize that policies 
and practices which have the consequence of excluding minorities,

-43-



see Griggs v. Duke Power Co., 401 U.S. 424 (1971), necessarily
affect individuals. See United States v. N. L. Industries, 479 
F.2d 354, 370-372 (8th Cir. 1973); Cooper v. Allen. 467 F.2d 836,
840 (5th Cir. 1972). Those individuals are the victims of discrim­
ination and are entitled to relief. Id_. in addition, it failed 
to recognize that its inquiry should be focused on practices in 
effect at the time the discriminatory act occurred, not subse­
quently. See Parham v. Southwestern Bell Telephone Co., 433 F.2d 
421 (8th Cir. 1970). Finally, the district court completely ignored 
the undisputed fact that at the same time plaintiffs and other 
blacks were being excluded, whites with skills no better than blacks 
were routinely obtaining work opportunities in the trade through 
the device of service dues receipts. The distinguishing character­
istic between black applicants for permits and successful white 
applicants was that the black applicants lacked familial or social 
ties to those already in the trade.

Plaintiffs argued, in the alternative, that they met the 
McDonnell-Douglas Corp. v. Green, supra, standard of proof (see 
Plaintiffs' Post-Trial Reply Brief). While the district court 
recited the McDonnell-Douglas Corp. v. Green, supra, elements of 
proof, it failed to properly apply them to the facts of the plain­
tiffs' case.

A . The Union Unlawfully Discriminated Against Ronald 
Rule in 1966.

The district court found that plaintiff Rule applied to JAC 
on June 17, 1966 and was informed that he needed to supply proof of 
graduation from high school, discharge from the Army and a medical

-44



statement before his application could be accepted (FF 3). He
supplied none of the required proof (FF 3). Given those findings,

69/
the district court's ultimate finding of no discrimination can be 
based on only two possible considerations: 1) Rule failed to meet 
the JAC requirement, i.e., he could not produce a high school 
diploma or its equivalent; or 2) Rule failed to complete the appli­
cation process. Denial of relief on either ground is unwarranted.

Plaintiff Rule did not possess a high school diploma or its 
equivalent in 1966 (see p. 30, supra). He proved that the JAC 
high school diploma requirement has a disparate impact on blacks 
and that he was affected by it. See p. 24, supra. Nothing more 
is required to establish a prima facie case. See Griggs v. Duke 
Power Co., supra, and Rogers v. International Paper Co., 510 F.2d
1340, 1346 (8th Cir. 1975). The defendants failed to offer any

10/proof that the diploma requirement was job related. Accordingly, 
Rule's lack of a high school diploma was not a lawful reason for 
his rejection. Ibid. Surely, Rule could not now be faulted for 
failing to complete the JAC application process after learning of 
an eligibility requirement that he could not meet. This Court has 
consistently held that victims of discrimination cannot be required 
to perform a futile act. See united States v. Sheet Metal Workers, 
Local 36, supra, 416 F.2d at 132; United States v. N. L. Industries.

69/ Review of findings of ultimate fact are not governed by the 
‘ciearly erroneous" standard. See Causey v. Ford Motor Co., 516 
F.2d 416, 420 (5th Cir. 1975).
70/ In fact, plaintiffs affirmatively established that the diploma 
requirement was not job related. See p. 24, supra.

-45-



supra, 479 F.2d at p. 369. Accordingly, rejection of Rule's claim
on this ground is unwarranted.

The district court simply ignored the undisputed proof 
that Rule also sought referral on permit in June 1966. See p. 29, 
supra. When he requested a permit, the Union's representative was 
less than frank, see United States v. Sheet Metal Workers, Local 
36, supra, 416 F.2d at p. 128, n.8, when she informed him that the 
Union wasn't issuing permits. There was evidence that the Union 
did issue permits during that period and evidence in the Govern­
ment's Case establishes that area contractors were seeking to hire 
anyone "that was breathing." See n. 55, supra. In fact, students 
who were the relatives of ironworkers received permits routinely.
See p. 11, supra. Compared to whites who were receiving permits,

21/Rule was well qualified. Given statistical evidence of the total
exclusion of blacks from Union membership and the virtually total

72/
absence of black permitmen in 1966, the district court should 
have given close scrutiny to any claim that Rule was not qualified 
for referral. See United States v. N. L. Industries, supra, 479 
F.2d at p. 370-371. In any event, at this point the burden of 
proof rests squarely on the defendants' shoulders. See Franks v . 
Bowman Transportation Co., __ U.S. __, 47 L.Ed.2d 444, 477 (1976).

H T  At trial, Rule eloquently described his qualifications:
Q. (By Mr. Levine) Mr. Rule, what qualifications as 

to being an ironworker did you possess in June of 
1966?

A. I was strong, I was young, and that was, I was easy—  
at that time it was pretty easy for me to learn (Tr.
100) .

72/ Just two blacks held permits in 1966 (Tr. 682-83).

-46-



They failed to offer any evidence that Rule did not meet consis­
tently applied eligibility standards. There was a good deal of 
evidence to the contrary. See p. 11, supra. Accordingly, plain­
tiff Rule was entitled to a finding of unlawful discrimination with 
respect to the rejection of his application for a permit.

B. The Union Discriminated Against Ronald Rule 
After 1966.

Not only did plaintiffs prove that Rule was unlawfully 
rejected in 1966, plaintiffs also established that the Union adopted 
a "strategy and tactic," PX-26A, of delay and evasion which suc­
cessfully thwarted Rule's efforts to enter the trade for six years
and that it took further affirmative steps to severely limit his

73/
employment opportunities once he gained admission. (See pp. 31 
and 32, supra).

1. The Union's deliberate course of delay before the Missouri 
Commission necessarily resulted in continuing discrimination against 
plaintiff Rule and itself constitutes a violation of Title VII.
See United States v. Wood, Wire & Metal Lathers, Local 46, 471 F.2d 
408, 411 (2d Cir. 1973).

2. The Union's negotiation and implementation of the 1972 
Letter Agreement again violated Rule's right to equal employment 
opportunity. See Guerra v. Manchester Terminal Corp.. 498 F.2d 
641 (5th Cir. 1974). Because the Consent Decree contains remedial

22/ Rule also testified to specific acts of harassment by individual 
Union members (Tr. 79, 138—39). Plaintiffs do not contend that the 
Uhion is responsible for these acts. Plaintiffs do contend that the 
Union has an affirmative obligation to discourage such acts, to 
investigate allegations of harassment, and to take appropriate dis- 
cip1inary action against union members who are found guilty of such acts.

-47-



provisions with respect to the 6000 hour preference, the district
court rejected as "without merit" plaintiff Rule's claim that the
newly negotiated referral procedures discriminated against him
and other blacks (Conclusion of Law No. 7) . In so doing, it
ignored this Court's teachings that in determining liability the
district court must focus on the events that occurred at the time
of the alleged violation. See Parham, supra, 433 F.2d at 426.
The district court simply ignored the undisputed fact that due to
the new referral system Rule was discriminated against in April
1973, seven months before the Consent Decree was signed. See p. 32
supra. Since the Consent Decree has now expired, only those few
blacks that have succeeded in graduating from the MTP or JAC will
continue to enjoy Group I privileges. At best, the Union's new

74/
referral system is a racially neutral system which has the effect 
of "freezing" the status quo of discriminatory employment practices 
E.g., see Griggs v. Duke Power Co., 401 U.S. 424, 429 (1971)7 
Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir. 1976). As 
such, it is unlawful and must be enjoined.

3. The district court also rejected as "unfounded" Rule's 
claim that the separate structures of the MTP and JAC as well as 
the Union's practice of offering contractors a choice of selecting 
trainees or apprentices for referrals when journeymen are unavail­
able effectively segregates the trainees and also serves as a ready

75/
mechanism for contractor discrimination. In so doing, the dis-

H T  Given the Union's express purpose for negotiating the new 
referral system in order to preserve the preferred position of its 
older, all-white members, one can hardly characterize it as 
"neutral" (Tr. 575).
75/ The contractors responsible for hiring also are, by contractual 
agreement with the Union, all ironworkers. See p. 17, supra.

-48-



trict court rejected plaintiffs' statistical showing that appren­
tices have a higher average number of hours of work than trainees. 
See p. 18-19, supra. It is well established that statistics are 
sufficient to establish a prima facie case of unlawful discrimina­
tion. See Parham, supra, 433 F.2d at 426. The statistics pre­
sented in regard to referrals of trainees and apprentices are 
particularly persuasive in this context given the ironworkers long 
history of resistance to the entry of blacks into the trade and 
the rampant nepotism shown in this case. E.g., see Ibid; Rowe v . 
General Motors, 457 F.2d 348, 358-59 (5th Cir. 1972); and United 
States v. Ironworkers, Local 86, supra.

The district court also premised its rejection of this claim 
on the fact that the contractors are not parties to this suit (Con­
clusions of Law No. 7). The district court failed to properly 
apply the applicable law. It is the union's acquiescence in con- 
tractor discrimination and its controlling role in the establishment 
and use of the job referral system on which this violation is 
premised.

Section 703(a)(2) of Title VII, 42 U.S.C. § 2000e-2(a)(2) 
declares it an unlawful employment practice for a labor organiza­
tion:

... to classify or fail or refuse to refer for employ­
ment any individual, in any way which would deprive or 
tend to deprive any individual of employment opportun­
ities or would limit such employment opportunities ... 
because of such individual's race ... (emphasis added).

Interpreting this section, the courts have consistently held unions
liable for its acquiescence in employer discrimination , e.g., see
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1377 (5th

-49-



Cir. 1974), and that it must negotiate actively for nond is crimina­
tory treatment of its minority workers. See Macklin v. Spector 
Freight Systems, Inc., 478 F.2d 979, 989 (D.C. Cir. 1973). The 
message of both the statute and the cases is clear: Title VII
imposes on unions a responsibility independent of that of the 
employer to foster equal employment opportunity for its minority 
members. It may not maintain a classification system which results 
in discrimination against blacks and cannot use the contractors 
as a shield to avoid responsibility. See Carey v. Greyhound Lines, 
Inc., 500 F.2d 1372, 1377 (5th cir. 1974). Here the Union estab­
lished the dual referral system. By making referrals of ironworkers- 
in-training separately as "apprentices" or "trainees" the Union 
gives contractors an unmistakable signal that they may select a 
white or a black ironworker-in-training. Its effect has been to 
deprive trainees of equal employment opportunity in violation of 
the Union's independent responsibilities under Section 703(a)(2) 
of Title VII.

The final reason cited for refusing to find the Union's 
referral system for apprentices and trainees unlawful was the 
court's finding of an absence of proof that minority group members 
were refused membership in JAC because of their race (Conclusions 
of Law No. 7). The undisputed proof establishes a clear pattern 
of exclusion of blacks from JAC, see pp. 24-27, supra, sufficient 
to establish a prima facie case. See Parham, supra.

4. The defendants' establishment of lower wage rates for 
trainees than for similarly situated apprentices insured that Rule

-50-



and other trainees earn less because of their classification as 
trainees (see n.53, supra).

5. Plaintiffs' contentions regarding violations of the 
conciliation agreement as it affects plaintiff Rule is set forth 
at pages

In the district court, plaintiff Rule established a back 
pay entitlement of at least $54,145.52 plus interest (see Plaintiffs 
Proposed Findings of Fact No. 102). He is now entitled to addi­
tional back pay for the difference in earnings between the 80% rate 
he was receiving as a trainee at the time of trial and the journey­
man 's wage.

C. Willie West Is Entitled to a Remedy from the Effects 
of Unlawful Discrimination Suffered in 1969.

The district court found that plaintiff Willie West was
76/

interviewed by the Examining Board in 1969 and, "subsequently," 
was offered the opportunity to enroll in the MTP at 65% of the 
journeyman's wages (FF 10). The district court failed to recite 
that the "subsequent" offer was not made until May 1971 (Tr. 437) 
and that he would not have been put to work until September 1971 
(Tr. 439). By that time, he had been admitted to the Operating 
Engineers, Local 513 and was at a higher rate of pay than the iron­
workers were prepared to offer (FF 10, Tr. 243). Under such cir­
cumstances his election to remain as an operating engineer is not 

77/
surprising. His refusal to accept the Union's belated offer is

JJz/ He had been performing building construction work as a laborer 
since 1960 (FF 9) .
77/ He became a journeyman operating engineer in 1973 (FF 9).

-51



no basis for failing to award him back pay from the summer of 1969 
through at least May of 1971. See Bradshaw v. Associated Trans­
portation, Inc., __ F. Supp. __, 8 EPD [̂9641 (M.D. N.C. 1974).
(Victim entitled to back pay from the time of the violation until 
the time he is no longer interested in the job.) Since West's 
refusal of the May 1971 offer was based on the Union's refusal to 
grant a wage rate that would not further perpetuate the effects of 
his earlier rejection, his back pay award should properly be cal­
culated up to the time that he became a journeyman operating 
engineer in 1973, thus affording him the "most complete relief 
possible." See Albemarle Paper Co. v. Moody, infra, 422 U.S. at 421. 
Anything less would not afford him a "make whole" remedy. ibid.

D . Johnnie I. Brown Is Entitled to a Remedy From
the Effects of Discrimination Suffered in 1970.

The district court found that plaintiff Johnnie I. Brown 
applied for referral on July 27, 1970, but had no knowledge of the 
ironwork craft at the time (FF 13). He was not referred. Instead, 
he was instructed to fill out an application for the MTP and was 
immediately steered to Construction Manpower. See p. 34, supra.
The Union made no effort to refer him at that time or subsequently.
It is reasonable to infer that by referring Brown to Construction 
Manpower after obtaining his application and not contacting him 
subsequently regarding his application, the Union had no intention 
of ever referring him and instead sought to steer him into other 
crafts. That the Union would have so acted in 1970 is not surpris­
ing. At that time, it was actively seeking to force those blacks 
who had succeeded in obtaining permits and were already skilled in

-52-



the trade into the MTP. See pp. 28-29, supra. it, therefore, was 
not interested in admitting those, such as Brown, for whom the pro­
gram was designed. The Union certainly was not going to afford 
Brown the same opportunity to learn on the job as a permitman as 
it was affording the relatives of its white members. See p. 11, 
supra.

The district court found that after applying Brown did not
return to the Union hall (FF 13). He did not return because the
Union misled him. He was told that Construction Manpower had a
training program (Tr. 276). While Construction Manpower may have
had a training program, it did not conduct the ironworker MTP and
it was for the ironworker MTP that Brown applied (PX-15). He was
eligible for the MTP (Tr. 270) but was rejected. There is no
requirement that an applicant who was rejected because of his race
demonstrate that he applied again and again in order to establish
a prima facie case. See McDonnell-Douglas v. Green, supra.

He is entitled to back pay from July 27, 1970 until he
becomes a journeyman. His back pay should be the difference between
the journeyman's pay (i.e., journeyman's wage times 1500 hours (Tr.

78/
546)) and his actual earnings up until he is admitted into the MTP. 
See Bowe v. Colgate-Palmolive Co.. 489 F.2d 896 (7th Cir. 1973). 
After admission, he should continue to receive the journeyman's 
wage as a form of front pay. See Patterson v. American Tobacco Co., 
535 F.2d 257, 269 (4th Cir. 1976). The Union and trustees of the

78/ As of the time of trial, his back pay entitlement was $43,740 
plus interest (see Plaintiffs' Proposed Findings of Fact No. 106).

-53-



MTP should be required to pay the difference between the trainee's
wage and the journeyman's wage during the period that he is a
trainee since they are responsible for the loss sustained by plain- 

79/
tiff Brown. See 42 U.S.C. § 2000e-5(g).

E. George Coe Is Entitled to a Remedy From the Effects 
of Unlawful Discrimination Suffered in 1970.

The district court found that plaintiff George Coe was not 
accepted into the 1970 JAC class because his final rating score 
was not sufficiently high (FF 15). It made no finding on the dis­
criminatory impact of the JAC selection process. The undisputed 
statistical evidence in the record clearly established the prima 
facie unlawfulness of the JAC selection process. See Albemarle 
Paper Co. v. Moody, 422 U.S. 405 (1975). The burden thus shifted 
to the defendants to show that he was not qualified, see Cooper v. 
Allen, supra, 467 F.2d at 840 and Franks v. Bowman Transportation 
Co., supra, by demonstrating that the selection process met the 
test validation requirements of the EEOC Guidelines on Employee 
Selection Procedures, 29 C.F.R. § 1607. The defendants have admit­
ted that they do not. See p. 27, supra. He is, therefore, entitled 
to prevail and be accorded a make whole remedy. See Albemarle Paper
Co. v. Moody, supra. That remedy should include an immediate offer

80/
of admission to JAC at journeyman's wages. See Patterson v.
American Tobacco Co., supra, 435 F.2d at 269 and back pay (including

.79/ jje would receive the trainee's wage from the contractors who 
employ him.
80/ The difference between the apprentice wage rate and the journey­
man wage should be paid by JAC since it is responsible for the dis­
crimination which Coe suffered. See 42 U.S.C. § 2000e-5(g).

-54-



fringe benefits). See Pettway v. American Cast Iron Pipe Co.,
494 F.2d 211, 263 (5th Cir. 1974). The undisputed evidence 
established that as of the time of trial Coe suffered an earnings 
loss of $13,657.75 (see Appendix A to Plaintiffs' Post-Trial Brief).

F. Hiawatha Davis Is Entitled to a Remedy From the 
Effects of Unlawful Discrimination Suffered in 
1973.

The district court concluded that plaintiff Hiawatha Davis 
voluntarily withdrew his 1973 application to JAC. It based its 
conclusion on a finding that Davis failed to complete the applica­
tion process because he might have to relocate outside St. Louis 
in rural Missouri in order to keep working (FF 17). This finding 
is clearly erroneous. There was no testimony that Davis was advised 
that he might have to relocate "outside St. Louis in rural Missouri. 
To the contrary, he was advised that he might have to relocate out­
side the State. The only testimony regarding relocation was by 
Davis. It was as follows:

Q. (By Mr. Gilden) All right. Did you bring any evidence 
of physical well being?

A. No, I didn't.
Q. Can you tell me why not?
A. Oh, at the particular time I needed a job and during 

the interview I was told that you could possibly, 
would have to relocate, you know, in order to keep 
working, so I had a job at the present time, so I 
thought it was best to keep the one I had. (Tr. 307- 
308) .

★ ★ ★

Q. All right. Now, did he say where you would have to 
relocate, what city?

A. He made a statement about maybe going to Florida or 
somewhere like this where the construction was in 
abundance and work plentiful (Tr. 308).

*  *  *

-55-



Q. (By Mr. Levine) Now, when you were told that if 
you became an apprentice you'd have to relocate, 
would you explain what they meant by "relocate"?

A. Well, like I said, they meant maybe the construction 
trade here in the State or city or Missouri or 
whichever, city, may not be, you know, have an 
opening for, you know, apprentice and that I would 
have to relocate to, you know, go to another state 
or something like that (Tr. 312-313).

Thus, having to work in the rural areas of Missouri was not
the deterrent. Certainly, he could have commuted if work was

81/
located within the territorial jurisdiction of the Union. His 
concern was with having to move to Florida or some other far-away 
state.

It is true that journeyman ironworkers travel in order to 
find work. There is no evidence in this record that suggests that 
Local 396 apprentices travel to other states to find work. In 
fact, the evidence suggests otherwise. Apprentices are selected 
in part on the basis of their ability to get to the school (Tr. 593) 
which is located in the city of St. Louis. Additionally, apprentices 
are prohibited from working outside the jurisdiction of the local 
unless upon the express written approval of the chairman of the 
JAC (Constitution at p. 83). Further, the Union consciously keeps 
the number of apprentices low in relation to the amount of appren­
tice work anticipated (Quick Deposition at pp. 31-33, Ex. A at p.
29). As a result, there was a severe shortage of apprentices within 
the jurisdiction of the Union in the very year that Davis applied 
(see Quick Deposition at p. 27). Thus, the Union's representation

32/ Thelocal now asserts jurisdiction in the eastern half of 
Missouri (Tr. 545).

-56-



that apprentices might be required to move out of state in order 
to find work could only be designed to discourage plaintiff Davis 
and other blacks. It had the desired effect on plaintiff Davis.

His back pay should be calculated in the same manner as 
that of plaintiff Coe. As of the end of 1974, his back pay entitle­
ment was $14,955 (see Plaintiffs' Proposed Findings of Fact No. 108 
and Appendix B, attached thereto).

G . Plaintiff Lonnie R. Vanderson Is Entitled to a
Remedy from the Effects of Unlawful Discrimination 
If He Was Not Accepted Into JAC in 1975.

The district court correctly found that as of the time of 
trial, Lonnie Vanderson had neither been accepted nor rejected by 
JAC (FF 18). However, as of that time, one could predict that he 
probably would not be accepted. He ranked number 109 among 111 
applicants (see p. 35, supra). He was subjected to the same dis­
criminatory selection process as plaintiff Coe.

Paragraph 8 of the Consent Decree requires that:
The JAC will not use any aptitude or achievement test 
in selection of apprentices unless the test had been 
properly differentially validated for ironworker 
apprentices in the St. Louis area in accordance with 
the applicable "guidelines" on employee selection 
procedure issued by the Equal Employment Opportunity 
Commission. Any such validity study and the proposed 
test shall be submitted to the united States for its 
review at least 60 days prior to the selection of 
apprentices by use of such tests ...

JAC reintroduced the FIT even though it had not been "properly
differentially validated for ironworker apprentices in the St. Louis
area." See n. 43, supra. it merely notified EEOC of its intention
to reintroduce the test and did so when EEOC failed to object.
Plaintiff Vanderson received 0 of a possible maximum of 15 points,

-57-



see p. 22, supra, on the test (see PX-10).
This Court should instruct the district court, on remand, 

to order Vanderson's admission to JAC if he was not admitted to 
the 1975 class. If not admitted, he should also be awarded back 
pay and a wage rate comparable to that then paid apprentices who 
were indentured in 1975.

H. Plaintiff Willie Nichols Is Entitled to a Remedy 
From the Effects of Unlawful Discrimination 
Suffered in February 1973.

The district court found that plaintiff Willie Nichols 
applied for the MTP in February 1973 (FF 19). The district court 
also found that the MTP did not attempt to contact him until August 
1973 (FF 20). By then he had enrolled in the carpenter's training 
program (FF 19).

Plaintiff Nichols should receive back pay from February 22,
1973 until August 13, 1973. He should receive the difference
between his actual earnings during that period and the average wage
of apprentices. Calculation of his back pay on the basis of
apprentice wages is necessary in order to avoid the discriminatory
effects of the lower wage rate paid trainees (see p. 28, supra)
as well as the effects of the triple jeopardy trainees face at the
hands of the Union (see pp. 17-19, supra). His back pay entitlement
is $12,540 plus interest (see Plaintiffs' Proposed Findings of Fact

02/ The district court refused to consider plaintiffs' request for 
enforcement of paragraph 8 of the Consent Decree. Plaintiffs also 
directed the district court's attention to the defendants' failure 
to meet the goals required by paragraph 13 of the Consent Decree.
In 1974, the MTP admitted only 13 (see 2/21/74 Report in PX-2) 
of the 20 minority trainees required by that paragraph of the 
Consent Decree.

82/

-58-



No. 104).

V.. THE DISTRICT COURT'S REFUSAL TO CONSIDER 
PLAINTIFF RULE'S CLAIM OF BREACH OF THE 
MCHR CONCILIATION AGREEMENT CONSTITUTES 
AN ABUSE OF DISCRETION.

The district court refused to consider plaintiffs' claim
of breach of the January 20, 1972 conciliation agreement on the
ground that enforcement must be brought by the MCHR (see CL 8).
It went on to conclude that plaintiffs failed to prove violation
of that agreement without discussing any of the specific violations
which plaintiffs raised (CL 8).

The district court cited no Missouri case law and the
plaintiffs' research has uncovered none which holds that enforcement
of conciliation agreements must be sought by the Missouri Commission
or that no private right of enforcement exists unless and until
the Missouri Commission refuses to proceed. Section 296.050
RS Mo., to which the district court referred, merely states:

296.050. Commission orders and decisions to be in 
writing - judicial review

1. All final decisions, findings, rules and orders 
of the commission shall be in writing. Parties to 
proceedings shall each be sent a copy of the commis­
sion's decision and order in the proceedings.

2. Any person who is aggrieved by any final decision, 
finding, rule or order of. the commission may obtain 
judicial review by filing a petition in the circuit 
court ... within thirty days after the mailing or 
delivery of the notice of the commission's final deci­
sion.

*  *  *

4. If no proceeding for review is instituted in 
the circuit court within the time herein prescribed, 
the commission may obtain an order of court for the 
enforcement of the commission's decision and order in

-59-



a proceeding brought in the circuit court ... The 
record on the commission's petition for enforcement 
shall consist solely of duly certified records of 
the commission showing that it has jurisdiction over 
the respondent, that the procedure prescribed by this 
section has been complied with, and a certified copy of 
the commission's order with proof of service. On such 
a petition, the inquiry of the court shall be limited 
to a determination of whether the action of the com­
mission is in excess of its statutory authority or 
jurisdiction and whether the respondent has substan­
tially complied with the order of the commission.
A reading of this section discloses that it merely authorizes

the Missouri Commission to enforce its orders. It is silent with
respect to agreements voluntarily entered into between the MCHR
and a respondent. That section is of little value in the context
of this case.

Plaintiffs' claim here is one of simple contract law and 
should be governed by traditional principles of contract law. See
EEOC v. Mississippi Baptist Hospital, __ F. Supp. __, 11 EPD 510,822
(S.D. Miss. 1976). Plaintiff Rule and the other plaintiffs are 
the intended beneficiaries of the conciliation agreement. As such, 
they are entitled to judicially enforce its terms. See 17 Am. Jur. 
2d, Contracts §§ 305, 306.

Whether or not the district court properly declined to 
enforce the terms of the conciliation agreement, evidence of its 
violation is further proof of the Union's purposeful violation of 
the right of plaintiffs to equal employment opportunity. The dis­
trict court's conclusion to the contrary is error. Plaintiffs 
review the Union's multiple violations of the conciliation agree­
ment here:

-60-



1. The conciliation agreement at paragraph 16 states:
The respondents shall immediately offer Ronald 
Rule referral for employment in response to any 
of the next two contractor requests to it for 
referral of employees ...

Despite its agreement to immediately offer Rule referral, the Union 
made absolutely no attempt to contact him. Instead, they simply 
filed the agreement away and forgot it. See p. 31, supra.

2. Paragraph 5 of the conciliation agreement states:
The respondent agrees that it will not cause or 
attempt to cause an employer to discriminate 
against any individual on the basis of race ...; 
and that in the negotiation and administration 
of labor-management agreements involving those 
for whom it is bargaining agent said negotiation 
and administration will be conducted without 
regard to race ... of said employees ...

Just eight months later, the Union went on strike and forced con­
tractors to agree to the Letter Agreement which had the effect of 
severely limiting the work opportunities of blacks. See p. 32, 
supra.

3. Paragraph 10 of the conciliation agreement states:
In the event referrals for employment are made 
through the Union, black non-members shall be 
referred for employment on the same basis as 
members, without giving any preference for Union 
membership, or for length of prior work experi­
ence , or whether any part of such experience was 
with any particular employer or employers, pro­
vided that nothing herein shall preclude the Union 
from requiring the minimum qualifications pre­
sently in effect, including a minimum length of 
experience in the trade, applicable equally to 
all without preference or distinction, (emphasis 
added).

Rule was a black non-member in November 1972 when the Letter Agree­
ment was signed and in April 1973 when the union implemented its 
terms. In April 1973, the Union, in violation of this provision

-61-



of the conciliation agreement, refused to refer Rule because he 
lacked the requisite 6000 hours of work in the trade that would 
entitle him to be classified as a "qualified journeyman," see p. 15, 
supra. Not until the Consent Decree took effect did Rule and other 
black non-members temporarily regain the protections afforded by 
this provision.

4. paragraph 12 of the conciliation agreement states:
All referrals for employment by the Union shall 
be made on a first-in, first-out basis ...

The Letter Agreement insured noncompliance with this provision.
Rule discovered that he would not be referred on a first-in, first-
out basis in April 1973.

5. Paragraph 9 of the conciliation agreement states:
The Respondent will apply objective, uniform 
standards, reasonably related to the job require­
ments of the trade, in passing upon the qualifi­
cations of applicants for participation in 
apprenticeship and training programs, for enrollment 
as members and for work referral through the Union.
All black applicants for membership meeting the 
standards referred to in this paragraph shall be 
accepted as members without regard to any numerical 
limit on membership which the Union might have set.

Despite this agreement, the Union continued to select apprentices
on the basis of non-job related requirements which had the effect
of excluding minority applicants. (See pp. 24-27, supra). Even
those black applicants for apprentice membership who met the Union's
non-job related requirements were excluded because of the union's
insistence on limiting the number of applicants for apprentice
membership (see n. 45, supra).

-62-



CONCLUSION
Although the district court refused to permit this case to

proceed as a class action, the record is replete with evidence of
an across-the-board pattern of unlawful racial discrimination
against blacks as a class as well as the plaintiffs individually.
In this Court, plaintiffs seek certification of the plaintiff
class pursuant to Rule 23(b)(2), consideration of all the evidence
offered by the parties, a finding of unlawful discrimination against
the plaintiff class, reversal of the district court's finding of
no unlawful discrimination against the individual plaintiffs, a
determination of the plaintiffs' back pay entitlement, and remand
with instructions as to the contours of injunctive and back pay
relief for the plaintiffs and the class. Plaintiffs also seek
remand instructions directing the district court to 1) take further
evidence regarding the amount of attorney's fees to which plain-

83/
tiffs are entitled, and 2) award plaintiffs interim attorney's 
fees. See Bradley v. School Board of City of Richmond, Va., 53 
F.R.D. 28 (E.D. Va. 1971), rev'd 472 F.2d 318 (4th Cir. 1972), 
vacated 412 U.S. 92 (1974).

This Court's instructions for injunctive relief should 
include the following:

§2/ The record presently contains only evidence of the time devoted 
to this case by plaintiffs' attorneys up until the commencement 
of trial (see Tr. 370, PX-49 and PX-20). Since then, plaintiffs' 
counsel have performed several hundred hours of service in the 
trial, post-trial, and appeal stages of this litigation. In addi­
tion, subsequent legislative, see public Law 94-559 and the legis­
lative history thereto, and judicial developments, see Walker v. 
Ralston Purina Co.. 409 F. Supp. 101 (M.D. Ga. 1976), in the law 
warrant a higher rate of compensation for work performed since 
trial.

-63-



1) A prohibition against application of the Letter 
Agreement to the members of the plaintiff class;

2) A prohibition against the continued use of the 
JAC selection process until it has been properly- 
validated in accordance with the EEOC Guidelines 
on Employee Selection Procedures, 29 CFR § 1607;

3) A prohibition of the Union's separate referral 
procedure for trainees and apprentices;

4) Affirmative action to insure that minority appli­
cants for referral obtain a fair share of the 
available work in the trade;

5) Prospective back pay or "future pay" for class 
members who were unlawfully denied (or whose 
admission was delayed) admission to JAC or the 
MTP; 84/

6) Continuation of the notice posting requirements 
set forth in the Consent Decree; and

7) Further goals and timetables designed to fully 
remedy the past exclusion of blacks from the 
trade.

Given the refusal of the Union to abide by the terms of the 
agreements entered into with two governmental agencies, this Court 
should order the appointment of an administrator, paid by the 
defendants, to oversee compliance with the Court's order and to 
handle individual complaints. See United States v. Wood, Wire & 
Metal Lathers, Local 46, supra, 471 F.2d at 416 and Patterson v. 
Newspaper and Mail Deliverers Union of New York and Vicinity, 384 
F. Supp. 585 (S.D. N.Y. 1974).

84/ The differential should be payable by the Union, JAC or the 
MTP depending on which party is responsible for the lost wage rate.

-64-



Respectfully submitted,

LOUIS GILDEN
Gilden & Dodson
722 Chestnut Street
St. Louis, Missouri 63101

JACK GREENBERG 
O. PETER SHERWOOD 

10 Columbus Circle 
Suite 2030
New York, New York 10019 

Attorneys for Appellants

CERTIFICATE OF SERVICE

I hereby certify that on this 27th day of December, 1976, 
I served a copy of the foregoing Brief of Plaintiffs-Appellants 
upon counsel for defendants, Barry J. Levine, Esq., Gruenberg, 
Souders & Levine, 905 Chemical Building, 721 Olive Street, St. 
Louis, Missouri 63101, by United States Mail, postage prepaid.

Attorney for Appellants

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