ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 72-516)
Before ALDISERT, GIBBONS and GARTH, Circuit Judges
In this action, brought on March 15, 1972 by the Attorney General on behalf of the United States*fn1 for relief from alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the defendant International Union of Elevator Constructors, Local Union No. 5 (Local 5) appeals from a final order of the district court adjudging Local 5 in violation of the Act and granting injunctive relief that includes affirmative action to overcome the effects of the violation.*fn2 This appeal challenges both the evidentiary support for the finding of violation and the scope of relief. We affirm.
Local 5 is a labor organization within the meaning of Title VII. 42 U.S.C. § 2000e(d). It is a member of the International Union of Elevator Constructors, and that parent union has a collective bargaining agreement with the National Elevator Manufacturing Industry, Inc., a national association of elevator construction contractors. The contract binds those contractors who operate in the Philadelphia area. The jurisdiction of Local 5 covers Bucks, Chester, Delaware, Montgomery and Philadelphia Counties in Pennsylvania; New Castle County, Delaware; and Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer, Monmouth, Ocean and Salem Counties in New Jersey. Under the terms of the national collective bargaining agreement which was in effect for times here relevant, Local 5 was the exclusive bargaining representative for persons employed in the elevator construction industry in the area of its jurisdiction. That agreement classified union members as either "mechanics" or "helpers". Helpers receive 70% of a mechanic's wage. A helper must have completed two years in the industry and passed an examination administered by a joint employer-union committee to be eligible for mechanic status. To be eligible for union membership a worker must be 18 years of age and must have worked in the industry as a probationary helper for at least 100 hours a month for six months within a nine month period. Probationary helpers receive 50% of a mechanic's wage, and receive increases automatically to 70% when the probationary period has been completed. A helper who has completed his probationary period is normally admitted to the union, and thereby made a "card helper" at an initiation scheduled by the union's executive board. Initiations are usually held every 12 to 15 months, depending to some extent on employment trends in the industry.
Employment in the elevator construction trade is obtained, as a practical matter, through a hiring hall controlled by Local 5. While the collective bargaining agreement does not require that mechanics and helpers employed by contractors be members of the union, it does require that those hirees who are not members obtain union referral cards. Thus any probationary helper must hold a work permit. The collective bargaining agreement compels employers to furlough probationary helpers before any others. It does not require that helpers who are not yet union members be laid off first, but it is customary for Local 5 to importune employers to furlough people on a reverse seniority basis and to lay off non-member helpers before card helpers.
Under the 1967 agreement, Local 5 followed a policy of denying work permits to non-members while members were out of work. This informal practice was formalized in Article XXII of the 1972 collective bargaining agreement. The hiring preference extends not only to Local 5 members who are unemployed, but to members of any other local of the International Union who want their names included on the Local 5 employment list.
In 1969 the Secretary of Labor, acting pursuant to executive order, implemented the so-called "Philadelphia Plan" which required bidders on any federal or federally assisted projects in a five-county area in and around Philadelphia to submit affirmative action plans, and which imposed a 19%-23% minority manpower goal for that trade. The plan was upheld by this court against charges that it was inconsistent with the Civil Rights Act of 1964*fn3 and the National Labor Relations Act,*fn4 and that it was unconstitutional. Contractors Association v. Secretary of Labor, 442 F.2d 159 (3d Cir.), cert. denied, 404 U.S. 854, 92 S. Ct. 98, 30 L. Ed. 2d 95 (1971). That opinion described the prior history of underrepresentation of blacks and other minorities in the construction trades in the Philadelphia area. We held that the Secretary of Labor could, because of the federal interest in maximum availability of construction tradesmen for projects in which the government had a cost and completion interest, require affirmative action without a finding as to the reason for exclusion of available tradesmen from the labor pool. 442 F.2d at 177.
The Attorney General's proposed remedy in this case is broader in scope than the Secretary's Philadelphia Plan, for it is aimed at all projects, not merely federal projects, and at all of Local 5's jurisdiction. The complaint charges a longstanding policy or practice of discrimination against blacks, and seeks broad injunctive relief. It also charges, however, that Local 5 has interfered with and prevented the implementation of the Philadelphia Plan. Thus the complaint seeks injunctive relief both to implement Executive Order No. 11246 and the Plan which Contractors Association v. Secretary of Labor sustained, and to enforce Title VII. The district court's opinion and judgment, however, predicate relief only upon the finding of a Title VII violation. The court made no specific findings relating the prescribed relief to implementation of the Philadelphia Plan. Thus unlike the Philadelphia Plan case, we may not affirm on the narrow ground that proof of underrepresentation of black tradesmen in the labor pool is a sufficient basis for relief. There must be proof of a pattern or practice of discrimination. 42 U.S.C. § 2000e-6(a).
At trial the government produced statistical evidence tending to show that blacks were grossly underrepresented in the membership of Local 5. At the time the suit was filed black membership was less than 1%. During the year and a half the suit was pending this figure rose to 3%. In contrast, the government offered census data*fn5 from the 1970 Census which established:
City of Suburbs of Juris-
Philadelphia Philadelphia ...