Full opinion text
OPINION HOGAN, District Judge. INTRODUCTORY Section I. Somewhere between these two extremes lies the answer to the problem raised in this case. The Local Union 212 (hereinafter referred to as “U”) has approximately 800 journeymen members. All are White (hereinafter abbreviated as “W”). U not only does not have, but it never has had a Negro (hereinafter abbreviated as “N”) member. That is one extreme. As the Fifth Circuit said in State of Alabama v. United States, 304 F.2d 583 (1962, affirmed 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112): “In the problem of racial discrimination, statistics often tell much, and courts listen.” Compare the statistical recitations in Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). Going to the other extreme for a statistic — since statistics may be bilateral — in March of 1968, a union electrical contractor, Incore Electric, and the successful subcontractor on two of the largest electrical construction projects in the Cincinnati area (being the building that is going on just west of this Federal Building and covering almost two blocks) in good faith addressed a letter to a representative number (practically all) of N contractors in the electrical business in this area. The contractor said that he had a present need for “several electricians of the minority group.” He further called attention to the fact that journeyman electricians, in his employ, were earning $5.55 per hour. Although this request was, on this record, known to individuals in the business and with the knowledge of the N electricians in this area, this good faith request was answered by only one person — who had no trouble with either the contractor or the U in obtaining and keeping employment. In May, 1967, the plaintiff Dobbins (hereinafter referred to as “D”) commenced an action against the U under Title 7 (42 U.S.C. § 2000e et seq.). The D action was also bottomed on 42 U.S.C. § 1981 (part of the statute of 1866). The D action purported to be a class action. The fact that, on this record, D is the only N to have satisfied the procedural requirements of Title 7 before filing an individual action is neither here nor there. The Fifth Circuit has recently held that, assuming other de facto members of the class, a plaintiff who has satisfied the procedural requirements of Title 7 may sue on behalf of others similarly situated who have not gone through the procedural requirements. Oatis v. Crown Zellerbach Corp., 5 Cir., 398 F.2d 496 (July, 1968). However, Rule 23 F.R.Civ.P. does require a showing that there is more than one person in the class. On this record there is no one in D’s class, as we shall see. D evidently agreed, since he took no step as required by the Rule. Furthermore, the prerequisites under Section (b) of Rule 23 are not here present. It is determined, therefore, that the D action is not a class action and not maintainable as such, but is an action on behalf of the individual plaintiff only. On July 24, 1967, only a matter of weeks after the D action was filed, the United States, by Ramsey Clark, Attorney General, filed a Title 7 action against the U. Basically, the D action asserted discrimination with respect to membership in the U. Basically, the government action was directed toward claimed discrimination both in respect of membership and employment opportunities. On September 6, 1967, on motion of the United States, the two pending actions were consolidated. At the same time, as required by Title 7, the actions, as consolidated, were advanced. The trial was approximately a year after commencement, which is approximately a year and a half in advance of when the cases would have been reached on the docket as a matter of course. The point is thát at a very early date in the history of these cases (i. e., a matter of a few months after filing and before any substantial discovery had been commenced) the Attorney General of the United States, in this Court, was actively pressing a claim which of necessity included the D claim, for all practical discovery, trial and evidentiary purposes, and in the light of that fact, there was no need in this District for a “private Attorney General” thereafter. Compare Newman v. Piggie Park, 390 U.S. 400, at 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (March, 1968). The Cincinnati Joint Apprenticeship Training Committee in the electrical field (hereinafter simply “JATC”) is a voluntary, unincorporated association, composed of six members. Each serves for a term of years. Three are designated by the U. Three are designated by the Cincinnati Chapter of the National Electrical Contractors Association (hereinafter “NECA”). It formulates and administers the apprenticeship training program in and for the jurisdiction of the U. In that connection, it incurs and pays expenses, which subject will be dealt with again herein. The funds of JATC are provided 50% by U and 50% by NECA. It is not controlled by either U or NECA — while the U members may want one or the other thing and NECA members may want something different, the conclusions of the JATC in such matters are arrived at by good faith bargaining. On April 9, 1968, after these cases had been assigned a trial date of July 9, 1968, and approximately a month after JATC had notice that such an effort would be made, the JATC was added as a defendant in Civil 6473; and on April 11, 1968, the United States filed an amended complaint against both defendants, adding the claim, as against JATC, of discrimination by reason of race or color in connection with JATC standards and admission to the apprenticeship program.The JATC first filed motions which were deferred for disposition until trial and which are dealt with hereinafter. On June 10, 1968, the JATC answered. It has been and still is the claim of the JATC that it had no adequate time prior to trial to prepare its defense and that it, therefore, was deprived of certain Constitutional rights. In an effort to set that claim at rest, the trial of this case was adjourned from July 24th to August 6, 1968; the government had rested its' case on July 24 against both defendants, and the JATC was afforded the interim adjournment for preparatory purposes before putting on its case, so that, prior to the time the JATC was required to defend itself evidentiary-wise, there was a substantial period of time in which it knew exactly what it had to prepare itself for — and, of course, its preparation could only amount to self-discovery, which never presents anyone much problem. The trial extended over a period of approximately fifteen days, involves a record exceeding 3100 pages of transcript, and several hundred pounds of exhibits. Section II. The Facts With Respect to The U 1. The U is a labor organization, being an unincorporated association of members engaged in the electrical construction industry in Cincinnati and thirteen surrounding counties in Ohio, Kentucky and Indiana. The U’s offices are in Cincinnati, Ohio. 2. U’s membership policies are governed by its Collective Bargaining Agreement, by the constitution of the International, and by its own bylaws. The bylaws require the examining board of U to meet “at least once moñthly for the’examination of applicants when there are applicants to be examined.” Four years’ experience at the trade is stated in the Collective Bargaining Agreement as a condition for eligibility for examination and it is also therein provided that a reasonable interval of time between examinations is three months. The International constitution requires “quarterly” examination of applicants by a local when there are applicants to be examined. 3. While the U has at all times had applicants for membership, no membership examination has been given since 1963, excepting only in July of 1967, at which time an examination was held, which will be dealt with further hereinafter. Again, and this is the last time it will be mentioned — absolute accuracy is being sacrificed in the interest of substance. There are certain special instances in which what might be called a “special examination” is given; a civil service municipal employee may be examined at an odd time on his request and the request of the City. That type of thing has nothing to do with this case and our only concern is with the general or non-special. 4. The Collective Bargaining Agreement states that all employees of union contractors “shall be required to become and remain members of the U as a condition of employment from and after the 31st day following the date of their employment.” U does not, and, at least since 1960, has not enforced this provision of the Collective Bargaining Agreement. During such time there has always been a substantial number of non-member employees “by referral,” who have been employed for substantially more than 31 days. Even in instances in which such an employee has desired to become a member of the U and made his desires known, he has not been admitted or given an exam. 5. U is a party to a Collective Bargaining Agreement with 62 electrical contractors who operate within the geographical area of U’s jurisdiction. 6. In accordance with and as required by the Collective Bargaining contract, U operates an exclusive hiring hall for the referral of applicants to employment by contractors who are parties to the agreement (either original or who become such by “sign on”). U is required to maintain a register of applicants for employment in the electrical field. Applicants for employment are, by the terms of the agreement, divided into four priority groups. Group 1 consists of applicants for employment with at least four years’ experience in the trade, who are residents of the U’s territorial jurisdiction and who have also passed a journeyman examination given by an IBEW local, and who have worked for at least one of the last four years under the U’s Collective Bargaining Agreement. As a practical matter, this means membership of U resident of the area. Whether this does or should, or should not raise any problems under the Labor Management Act, 29 U.S.C. 151 et seq., is of no concern of ours. (29 U.S.C. 160(j)) Ours is only a Title 7 concern. Group 2 consists of applicants for employment who have at least four years’ experience in the trade and have passed a journeyman’s exam given by an IBEW local. As a practical matter, that means non-resident members of another local and during the times of interest in this lawsuit, there have always been a number of non-resident members working on referral in the geographical jurisdiction. Group 3 consists of applicants for employment who have at least two years’ experience in the trade and are residents of the area and who have been employed for at least six months in the last three years under the U’s Collective Bargaining Agreement. The great majority of non-member referrals are under this group 3. Group 4 consists of applicants for employment who have worked in the trade for at least one year. The referrals are to be made in accordance with the above priorities; however, there is no “bump off” as between these priorities. For example, a nonmember in employment as a group 3 referral would,rnot be bumped off by a member of group 1 who became unemployed and signed the referral book. 7. Under the Collective Bargaining Agreement, the union contractors must hire all their electricians through the U (again leaving out special matters which do not affect this case). A union contractor may go into the open labor market under the agreement if he has requested a man from the U and the U cannot refer a man within 48 hours of such a request. The contractor is required to classify an employee so hired (called “a 48-hour man”) as temporary and he must notify the U of the man’s name and Social Security number. A 48-hour man may be replaced by the U as soon as anyone becomes available for referral by the U. 8. W electricians in category 4 have been referred to union contractors. No N ever has. On occasion a W electrician has been sent by the U to specific contractors for the purpose of obtaining a letter requesting the U to refer him for employment. No N electrician ever has. 9. Employees directly hired by a union contractor and any non-member of U referred by U to a contractor, or vice versa, are required to purchase a building trades button at a cost of $5.00 a quarter and, in addition, at the time of referral the employee receives an introductory slip from U to the contractor. Stated otherwise, a union contractor will not and does not hire any electrician until he knows that the hiring is satisfactory to the U. 10. U maintains four separate books in its office for the registration of applicants for employment in the appropriate categories. The U does not, however, require applicants for employment to sign a referral book if work is available when the applicant comes into the office. 11. Membership in U confers the highest priority for referral to employment in the Cincinnati area and the second highest referral priority (out of 4) in every other IBEW construction local throughout the United States.' Such" membership in U confers significant additional employment opportunities. 12. U has approximately 800 journeymen members. All are W and always have been. U has never had an N member. 13. The number of members in U, at all times since July 2, 1965, has not been enough to meet the needs of the union contractors in the U’s territorial jurisdiction. From July, 1966, to October, 1967, almost 1,000 electricians, who were neither members of U nor indentured apprentices, have been employed at some time for union contractors — practically all, if not all, by referral from the U, or vice versa. Of these, 359 individuals were members of other IBEW locals and were, therefore, in category 2, and were all W. With one exception, which took place in 1968, U has never referred an N under group 2. It had one opportunity previously to refer another N, which it did not do for reasons which it did not apply to W members of other locals. Of the almost 1,000 men so referred, 85 (also all W) were members of non-electrical unions. U has never referred an N member of a non-electrical union. During the same approximate 15-month period, 328 “48-hour men” were hired. 14. While it is true that in recent months (summer, 1968) there have been members of U out of work (due to an extended strike of other crafts in Cincinnati) it is at the same time true that at all times there have been employed by union contractors in the geographical area many more electricians in number than the total of U’s membership. This is so, of course, because of the “no bump off” policy. 15. In October, 1967, a. representative date insofar as this case is concerned, about 600 men, who were neither members of Local 212 nor indentured apprentices, were working for contractors — party to U’s Collective Bargaining Agreement. All except two of these persons were W. One of these two was hired in August of 1967 as a result of the initiative of a union contractor. The other one also was employed as a result of a request by the contractor to the U for a referral. The circumstances surrounding the second N are of a complexity which will not be gone into. In a nutshell, this is the situation — no N was ever referred by U until August, 1967, and the referral then was at the specific request of a union contractor. Up until the time of the hearing of this case, only one other N had been referred and that was after the union contractor had specifically requested “electricians of the minority” and the second individual had been a member of an IBEW local at Middletown, Ohio. He was a class 2 referral. No N has ever been referred by U under category 4, although a substantial number of W’s have been. 16. There is some tendency to classify “journeymen electricians” into such divisions as construction electricians and residential electricians. The term “journeymen linemen” is used, as well as the term “journeymen wiremen.” The jurisdiction of this International Union and U covers and includes “the trade.” For instance, the only qualifications of membership are “good character, over 16, and the passing of a satisfactory examination.” “The trade” includes residential electrical work and construction electrical work. Furthermore, for all practical purposes, an experienced electrician who has acquired his knowledge by work in the residential areas and particularly in the rewiring of residential areas, will acquire the general knowledge necessary for him to work as an electrician for a subcontractor doing the electrical work in a major construction project. As in everything else, there are special circumstances, and we are dealing with the generalities which will help to the general understanding of this case. For example, electricians working on the Fernald project in Southwestern Ohio or the Kyger Creek project in Southeastern Ohio might require some special skills which they would not learn in residential experience — that is to say, some of them would. However, in a major building project, while some electricians require special skills and exceptional knowledge, the majority of the electricians required could have acquired the necessary experience for their jobs in the residential areas. This record indicates affirmatively that the transition of an experienced residential electrician to a building electrician presents no problem of merit. So that it will not be helpful to go into a detailed explanation of the difference in the technical terms, with several limited exceptions. There are a very few people working under the jurisdiction of this U or- in this trade who are called “groundsmen.” They are laborers who work with their hands without benefit of machines on and in the ground, removing boulders and things like that. An apprentice, as the name implies, is one learning the trade. Variant from the source of the word (a barrister in old English law was an apprentice until he had practiced 15 years) an apprentice may be in his teens or in his 40’s. That classification is divided into an indentured apprentice and an unindentured apprentice. An indentured apprentice, for the purposes of this case, is an apprentice being trained under the auspices of the JATO and obligated by contract with that Committee. An unindentured apprentice would include all others. Since the fall of 1967, by reason of negotiations between NEC A and U (and/or their national counterparts) a union contractor may not employ an unindentured apprentice; so that since the fall of 1967 the only chance an unindentured apprentice has to learn the trade is via or with a non-union contractor. Simply to carry the matter to its end, a summer employee is not to be confused with any of these, meaning that with U approval, a union contractor may hire a summer employee for 90 days during the summer. This, of course, is temporary employment and not apprenticeship as such. 17. In the middle 30’s U had approximately 300 members. By 1965 U had approximately 725 members. By 1967 it had approximately 865 members, which included 37 indentured apprentices from the 1966 class, who were initiated on October 11, 1967. The 1965-67 increase (beyond the apprentices) was, for all practical purposes, due to the absorption by U of another local. The bulk of the membership has been engaged in commercial and industrial work in fact. Apparently no one connected with U ever actually asks or answers the problem “How many members should this U have?” The factor which historically is the most important in relation to the answer to that question is this: the rock bottom employment in the jurisdiction. There used to be a conscious effort (and that effort, if it exists at all now, is unconscious) to maintain or limit the membership to the minimum of electricians which the U could be expected to keep in continuous employment in bad times. During an appreciable part of the three years prior to the effective date of the Civil Rights Act, the times in this trade in this area could be described as bad and both union contractors and union members had their employment problems. Of recent years, the U has been picking up 35 members a year approximately from the JATC program. The attrition of recent years by reason of the death or retirement of active members is about 16 a year, or at the present time the annual gain is something in the neighborhood of 18 or 19. There is no showing in this record that the number of the membership has been maintained discriminatorily, nor is there any showing that the approximate net gain figure of 18 or 19 is unreasonable. 18. The International Constitution, read into U’s bylaws, requires as a condition of membership, for our purposes, that the applicant be “employed in the trade.” With the sole exception or exceptions hereinafter referred to, U had never administered an examination for membership to any person who had not at the time been actually working in the trade and for a union contractor. 19. The Collective Bargaining Agreement between U and the union contractors requires as a condition precedent to examination for admission that the applicant have “four years’ experience at the trade.” This requirement has existed since at least 1958 and it is a reasonable requirement and is not discriminatory per se, nor was it adopted for that purpose. 20. Leaving out again the small exception (such as a member of another local moving into this area, or such as persons employed as inspectors who must attain union membership, etc.) there exist today, and this has been true since July 2, 1965, only two paths which one may traverse to become a member of U. One is to work four years in the trade for either a union or non-union contractor (whether W or N) and the other is to be admitted and go through the apprenticeship program administered by the JATC. 21. The U is bargaining representative for its members and the men under its referral in its geographical area with approximately 60 contractors who are either parties to or signers on to the bargaining agreement. The last bargaining agreement was effective June 1, 1965, although its negotiations were not concluded until the fall of 1966, so it is a “nunc pro tunc” one. There are a substantial number of non-union contractors in the geographical area, but the clear majority of the work in the trade, particularly in the building and construction end of it, is performed by the union contractors. 22. Since July 2, 1965, in excess of 400 W men obtained employment directly from union contractors, either as 48-hour men or as prospective employees referred to U by local union contractors. While we are unable on this record to break down the categories into numbers, this much is clear in respect to all of them, and without regard to whether the initiative of the contractor was related to the 48-hour clause or unrelated — the final 0. K. was U’s. The consistent precatory language in the contractor’s letters points only to the conclusion that U’s “Yes or No” was untrammeled. 23. Both before and after July 2, 1965, it was the policy of U not to accept an application for union membership from a W who was not at the time he filled out the application actually employed by a union contractor or employed in one of the special categories; that being consistent with U’s unwritten rule that an examination for membership would be given only to one working in the trade for a union contractor. (See P.X. 6 containing the applications of some 117 W applicants who applied since January 1, 1965, and some few who applied previously thereto — very few of these applications indicate affirmatively that the applicant was “unemployed” and 90% indicate to the contrary.) It was the policy of U both before and after July, 1965, to immediately accept from any N who walked into its office a signed application for membership without regard to unemployment at the time of the N application. Of the 17 applications from N’s received by U from 1962 to the time this lawsuit was filed, 13 indicate that the applicant was not employed, one indicates that the applicant was employed in a drug store as a porter, one indicates that the applicant was employed by a non-union contractor, one indicates employment by the City of Cincinnati and one indicates “self-employment.” (P.X. 5) Eight of these applications were signed and delivered to U after July 2, 1965. 24. The relationship of a member of U and U is that of contract. The International Constitution, read into the Local, provides that “the acceptance of an application and the admission of the applicant into a local constitutes a contract between the member, the local and the I.B.E.W., and between such member and all other members of the I.B.E.W.” An applicant at the time of making his application is required to and does sign a contract “agreeing to conform to and abide by the constitution of the I.B.E.W.” 25. Members of the U and electricians working under the referral system of the U enjoy certain financial benefits which are not enjoyed by electricians otherwise occupied or not occupied. In the case of a union member, these include participation in a group hospitalization program, in a special pension program, in union training and skill upgrading programs. A worker on referral enjoys at least one or more of these. In addition, a member has a right of approval along with other members over the U’s Collective Bargaining Agreement which establishes wages and conditions of employment. 26. Since June, 1965, the minimum hourly rate of wages for men working under U’s Collective Bargaining Agreement has been $4.90 per hour and that is substantially in excess of the wages earned by electricians employed by non-union contractors both W and N. 27. From early 1966 through June, 1968, there has been a state of full employment in the electrical trade field in U’s territorial jurisdiction. Since June of 1968 there has been limited temporary employment as a result of a strike in the building trades industry in the Cincinnati area (not involving the U). This has shut down some very major projects and the strike continued during the time of this trial. Whenever this strike may be settled, the electrical trade industry in the area will return to full employment — the indexes used by electrical contractors to estimate the future in the industry locally indicate the grade will be up from normal in the foreseeable future. 28. Something in the neighborhood of 75% of the total dollar volume of contracts being performed by contractors who are party to U’s Collective Bargaining Agreement is for publicly financed projects. 29. U has attempted both before and after July 2, 1965, to organize W nonunion electrical contractors working within the U’s jurisdiction and has attempted to obtain letter additions to the Collective Bargaining Agreement by such non-union W contractors. 30. Upon the letter assent by a nonunion contractor to become party to the Collective Bargaining Agreement, the U permits the contractor to continue the employment of electricians on his payroll at the time of signing and the employees thereafter work under the conditions of employment set forth in the Agreement as U referrals. 31. The U has never attempted to organize an N contractor either before or after July 2, 1965; however, there is no evidence that after July 2, 1965, any N contractor was engaged in doing the type of work being done by a W contractor with respect to whom organizational efforts were directed since July 2, 1965. It is, therefore, found that there has been no discrimination in organizing or failing to organize non-union contractors. Section III. The N Applicants for Membership 1. In the history of U since 1960, 18 N’s have applied for membership. None have been admitted. Of these 18, nine have applied since July 2, 1965. 2. Evidence of discrimination ante-July 2, 1965, is not relevant or competent in respect of any objective problem of discrimination subsequent to that date. There is no question that prior to about 1963 the U discriminated against practieally everybody except relatives of existing members and, of course, “everybody” includes N’s. There is no question that U discriminated against N’s up until the effective date of the Civil Rights Act of 1964. Evidence of ante-Act discrimination back to 1960 was admitted in this case for consideration solely in this connection — discrimination subsequent or a pattern or practice subsequent involves not only objective acts, but it involves the subjective. Pre-Act activity is considered only as so limited. 3. Prior to July, 1963, no N was ever tested for journeyman membership in U. Between 1961 and 1963, four N’s had filed applications for journeyman membership. 4. W electricians who filed membership applications in and about 1961 were examined and initiated into the U. Henderson, an N, applied in July, 1961. His name is circled in the Minutes of the Executive Board of U. Such circling is unique. A special test for N’s was administered by U in mid-1963. Although U had been administering regular examinations for membership during the first six months of 1963 to W applicants and although the applications of N’s were then pending, the regular examinations were not administered to the N’s. In July of 1963, applications were on hand from six N’s. Only four were invited to take the special exam for N’s. The notice of the exam which the U sent to the four N’s stated that it would be held at a given time on “Monday, July 9, 1963.” That was a non-existent time, since Monday fell on July 8 that year. Despite that “coincidence” three N’s did show up at the appointed time on the 8th. One declined to take the test, stating he was interested only in an apprenticeship; the other two took the test and failed. The U scheduled this special exam to gain, in accordance with its own minutes, “a talking point with civil rights groups” and, for the same purpose, encouraged one of the two N’s to take the test who did not want to take it because he was interested only in apprenticeship training. One N who took the special exam was an electrical contractor and fully qualified by reason of experience in the trade for referral. He was not informed of the referral system, although at the time all members were employed. U refused to inform him of his grade, even though U knew his grade and never has informed him of his grade. 5. None of the 18 N’s were ever informed by U of the referral system. One learned about it since this lawsuit was filed and his information came from a contractor and not from the U. 6. Between the effective date of the Civil Rights Act and the time these complaints were filed, seven N’s applied for membership. None of them was informed of the referral system. None of them was informed that he would not be examined for membership until and unless he was working in the trade for a union contractor. All were simply informed that they would be notified when they were to be examined. These failures were part and parcel of a pattern or practice of discrimination and were in fact discrimination designed, initially, to deprive the N’s of employment opportunity, and secondly, union membership. Of the seven, one was a non-resident of the territorial jurisdiction. His application was taken pursuant to the same pattern or design and, in addition, he was not informed that unless he lived in the geographical jurisdiction or worked in the trade in the jurisdiction, he would never be considered either for examinations or membership. (Todd) One (Sharpe) who had in fact been a bona fide dues paying member of an IBEW local in Connecticut and who so informed U, was (a) not informed of category 2 on the technical “coincidence” that he did not have his card, and/or may not have cleared the post; (b) not informed of the referral system. At or about the same time non-union electricians coming into the geographical area from even farther away were readily referred under the referral system— being W. No regular union membership examination has ever been administered to any of the seven, nor did the U make any effort to inform them even of the July, 1967, membership exam. 7. Prior to the filing of this lawsuit, no N ever worked in a journeyman capacity under the auspices of (member, referral, or 48-hour man) U. 8. Since July 2, 1965, to the date of trial, 27 N’s have had contact with or have been contacted by the U in one manner or another. Here is the classification : a) Seven of them had filed with the U their signed formal applications for membership, which were pending at the time of the competency exam (which will be described hereinafter) in March of 1966. These seven, some of whom had filed before July 2, 1965, and some after, were and each of them was formally notified by the U in 1966 of the competency exam. Each of them got the notice. None of them took the competency exam. The names of these seven are: Anderson Dobbins, Joe Kennedy, William Andrews, David Brown, Bill Harden, Charles Letcher, and Paul Glenn. Each of them lived within the territorial jurisdiction of the U. Each of them was of journeyman age. More will be said of each of them in the next fact finding. b) One who applied for membership in October, 1965, lived outside of the territorial jurisdiction of the U. There is no showing on the record that he was engaged in the trade within the territorial jurisdiction. This alternative qualification for membership set forth in the International Constitution is a reasonable requirement, and in respect of this individual, Ronald C. Todd, we do not find any discrimination. c) One who applied on July 20, 1966, indicated in his application that he had been a member of an IBEW local in Groton, Connecticut. He was in fact such. He was in fact qualified for a class 2 referral. His application was at a time when U was unable to fill the request of contractors and 48-hour men were being hired. Historically U was in the habit of operating on an “honor system” (see Williams’ testimony) even in respect of class 3 referrals. U did not refer Sharpe. The apprentice age excuse has nothing to do with it. He was discriminated against because of color and race. His name is William H. Sharpe. d) Five N’s had applied for membership prior to the time the competency exam was given in 1966. The U made a bona fide effort by registered mail on March 5, 1966, to notify these five of the competency exam. The registered notices came back indicating that these five had moved. There were no forwarding addresses. We find as a fact that these five failed to keep the U informed of their whereabouts and whatever the merits or demerits of the competency exam, their disappearance is a complete answer to any claim of discrimination as to them. U was under no duty to search for them. An applicant for membership is under a duty of keeping the “club” informed of his whereabouts. There was no discrimination in respect of these five, to-wit: Louis Wilkinson, Robert Livingston, Irvin Dean, Henry A. Robinson, and Edward E. Chalk. e) Milton Howard, an N, had been a member of an IBEW local in Middletown, Ohio. In March of 1968, he was referred by U as a category 2 man. This was months after this case was pending and was in response to an open request for an N electrician from a union contractor. We find nothing plus or minus either in respect of the plaintiffs or the defendant in the Howard situation. U had no alternative. f) Wilson came into contact with U by virtue of his being “qualified for employment” by a union contractor several months after this case was pending, and in August or September of 1967. U had been unable to fill the union contractor’s request for journeymen and the contractor was desperate in more ways than one. On a Saturday Wilson, who had been recommended by an N contractor, Price, to the union contractor, Morgan, went to-one of Morgan’s jobs and on that day Morgan and Wilson worked together. Their work extended over a few hours. From observation during this two-hour period, Morgan concluded that Wilson was qualified. We do find as a result of such facts as this one and many other references in this record (See, for example, the testimony of the former business agent of U, Williams, to the effect that “the real test is working to the satisfaction of a union contractor.”) that in approximately a day’s work “on the job” it can be determined whether a given individual is competent to work as a journeyman electrician (be it refined into lineman or wireman, or what have you) in the trade in the Cincinnati area. On the following Monday or Tuesday, Morgan and his partner were “called on the carpet” by the U. We do find that this was attributable to Wilson’s color and not to the fact that “Morgan had been working with the tools.” He had been doing that for some time. Wilson is working in the trade today, not by reason of any affirmative action of U, but because a union contractor (a second one) wanted him, found him as the result of independent action, and there was nothing much U could do about it as a practical matter. Wilson is in fact a competent journeyman electrician. He has not been discriminated against. g) Two of them, Willie Bobbs and Edward Ward, worked as summer helpers for a union contractor (one for just a couple of days). They did so with the permission of the U, given after this lawsuit was pending. The initiative in respect of their employment came from the contractor who was a witness in this case and who is obviously an affirmative action person, since his efforts in the area extend to the clerical, as well as to the craft. As a matter of fact, the employment of one was due to the initial intervention of a “cleric.” On the issue of pattern or practice, we attach a little, but not much, weight to this from U’s point of view. h) Three groundsmen have worked in the trade. Two of them (and possibly all three) have been employed by the contractor just mentioned above. The three have worked with the permission of U. As has heretofore been pointed out, a groundsman, while working in the trade, is not “of the craft;” he is a laborer. The same little, if any, weight is given. i) Charles Long applied in August of 1965, at the age of 19. His application indicated present employment in the trade for a non-union electrical contractor. However, he later applied for the competency test and evidently he had never actually been employed by the contractor mentioned on his membership application and his experience in the trade was solely as a “helper.” Because of his age, he was referred to the JATC at the time of the competency exam and was informed fully of how to start applying. He did not follow that up. We find no discrimination in respect of Mr. Long. j) One, Frank Sawyer, applied for the competency exam in 1966. His age was 26. His application showed on its face that he was a veteran, and showed on its face that he wanted to start as an apprentice. He took the competency exam and after it, the JATC and the U (since in Ohio as a matter of basic substantive law, a person acting as a member of one committee and the representative of another entity, the U, on that committee cannot forget when he acts in one capacity what he learned in the other) were specifically informed that he was a veteran — and with the four years’ age credit given veterans, he was eligible for the apprentice program. Neither the U nor the JATC informed Sawyer in his personal interview of either of these things: (1) when the next applications would be taken for the apprentice program, or (2) how to apply. Sawyer was in fact a veteran and it is so found. He had demonstrated by steady employment with the same employer and by the successful pursuit of specialized courses in night schools that he possessed the aptitude and qualifications necessary to be an able apprentice. If he had been W, he would have been treated differently and it is found that he was discriminated against both by the JATC and the U in March of 1966 by reason of his race and color. k) While Roy Roberts, in either 1965 or 1966, or possibly both, went into the building which houses U’s office, the evidence in the record relating to the question of whether he established contact with U or some other union preponderates in favor of the latter. There was no discrimination by U in respect of Roberts. l) Walter L. Walters, Lee Scott, and Willie Slaughter are presently in the JATC apprentice program as the result of their own competitive effort in the circumstances described hereinafter. 9. Carrying forward the facts with respect to category (a) in the previous numbered finding of fact — -Paul Glenn did not testify at the trial of this case, nor are we otherwise informed regarding Mr. Glenn, except that he was, at the time of his application, a porter in a drug store without any previous experience in the trade. We find no discrimination in respect of Mr. Glenn. Charles Letcher’s application was before July 2, 1965. It was continuing. By education, experience, and training, he was, at the time of his application and on July 2, 1965, and in March of 1966, a competent electrician eligible for referral under the U’s referral system. The U effort, after the effective date of the Act, to steer him into a competency exam rather than to refer him to a union contractor was discriminatory by reason of his race and color. William S. Andrews applied for membership in August of 1965. At that time by reason of his experience in the trade and education, he was fully qualified for referral. The failure to refer him or place him on the referral list at the time of his application was discriminatory and the U effort to steer him into a competency examination rather than to refer him to a union contractor was also discriminatory. David A. Brown applied on August 13, 1965. As with the previous individual, he had worked and was working in the trade and by reason of education and experience he was competent for referral. The same findings of discrimination are made. William Harden applied in August of 1965. His application indicated that he was self-employed as a journeyman. The failure of U to inform him as of the time of his application that under the U rules a contractor could not be a member of a local was discriminatory. The same additional findings of discrimination are made as above. Joe Kennedy applied for membership in August, 1965. His application did not indicate any present or previous experience in the trade. He was not a witness in this case and we are not otherwise informed. Based on the evidence in this case, there is no showing that Kennedy was discriminated against. Anderson Dobbins, the plaintiff in one of these consolidated cases, applied on September 14, 1965. His application did not indicate any previous experience in the trade. (We omit pre-Act applications as unnecessary for any determinations in respect of Dobbins.) In fact Dobbins was highly and directionally educated, both high school-wise and college-wise. Without detail, it can be said conclusorily that the difficulty with that part of the Dobbins action which purports to be a class action is that, on this record, he is in a class by himself at least from an educational point of view. He served two tours of duty with the United States armed services, and was honorably discharged. He attempted during the 50’s and 60’s to obtain employment commensurate with his education in the electrical field as a journeyman, but was unable to do so and, as a consequence, worked in various capacities with the City of Cincinnati and the Post Office Department. At least for some years prior to the time of his application for membership with the U and some years prior to the trial of this case, he was and is an independent non-union electrical contractor in the dwelling field. He has passed at least one journeyman’s test administered by a municipal government. His direct testimony in relation to his performance of many jobs in this area which are subject to “municipal” inspection and which have passed municipal inspection is uncontradicted. A feeble effort along these lines terminated in a manner which lends credence to his testimony. We have no hesitancy in finding that in September of 1965 he was, by any test, thoroughly eligible for referral and U’s failure to include his name on the referral books and/or failure to refer him, and/or effort to direct him into a competency exam, each is found to have been discriminatory by reason of race or color. We further find as a fact that the failure of the U to extend to Dobbins, Letcher, Andrews, Brown and Harden the opportunity of taking the membership exam in 1967 (more will be said about this later) was similarly discriminatory and the reason therefor arbitrary. Two more matters in respect of Dobbins— in 1963 he was arrested in the City of Cincinnati and convicted of a misdemeanor, petit larceny, for which he was fined $25.00. There, of course, is no question of the relevancy of this since Dobbins was a witness — the relevancy being in connection with impeachment or credibility. See Smith v. United States, 283 F.2d 16, 87 A.L.R.2d 394 (6th, 1960); Henderson v. United States, 202 F.2d 400 (6th, 1953); Pearson v. United States, 192 F.2d 681 (6th, 1951). As a result of this conviction and a failure to pay (as distinguished from failure to report) a $30.00 Cincinnati Income Tax, he lost his job by reason of discharge from the Post Office. The U in this connection takes the position that one or more of the following facts furnishes an adequate reason for the U’s failure to refer or admit to membership: a) The conviction on the misdemeanor. b) The discharge from the Post Office. c) The Cincinnati Income Tax item. d) The immediate filing by Dobbins of a discriminatory complaint with the Ohio Civil Rights Commission (September 15, 1965 — which was dealt with adversely to him by the Ohio Commission). e) In December of 1965, Dobbins made a national broadcast on CBS, which was highly critical of U’s alleged discriminatory practices. The $30.00 reason is no reason at all. Title 7, itself, (42 U.S.C. § 2000e-3) disposes of the quickness of the charge and, ipso facto, the broadcast. There is no evidence in this record that the U ever concerned itself with any employment of an applicant other than his present employment — let alone concerned itself with the reason for past terminations. The U both affirmatively and negatively on this record has indicated the type of criminal activity it is interested in. The competency exam application indicated that it was interested only in “LandrumGriffin” crimes — and it named them. It expressed interest in grand larceny— it studiously omitted petit. See P.X. 10. And, finally, the complete arbitrariness of this grasp at coincidence is forcefully demonstrated in a small part of this record. Frank Sawyer, in his application “for referral only” for the competency exam, thought the U might be interested in petit larceny, so he added this comment following the Landrum question: “In 1951, in Montgomery, Alabama, I took some candy from a train.” The JATC (50% U) took his $25.00 and gave him the competency exam. It is in fact an extreme type of arbitrariness to differentiate between two petit larcenies — the word “petit” is apt description. We find as a fact that, by any standard, Dobbins is eligible for membership or referral and has been since September of 1965, and that the only obstacle to either or both has been the discrimination of U by reason of his race and color. Section IV. Union Examinations 1. There is published and has been for some years a National Electrical Code. It is the product of knowledge and recommendations of electrical manufacturers and electrical contractors and, most importantly, fire underwriters. In most places in the country, it is read into building codes. It, therefore, generally speaking, has the force of law. It is published in various forms, and while the bound volume can get rather expensive, electrical suppliers will furnish it free of cost in a pamphlet form and in that form it is something a workman could carry in a tool box or in his pocket. For practical purposes, it sets forth the answers to questions properly posed for qualifying an electrician. In one or two, or three or four years, working in the trade, an apprentice or an electrician will come in contact with this, that or the other thing frequently enough that he has it in his head as a matter of job information. Then there are some other more specialized items which a workman might not be expected to have in his head even after four years in the trade, but he would be expected to know how to find the answer and apply the answer from the code. Then there are some still more specialized things which may or may not be ultimately answered in the code — they generally are- — which would come under the heading of “advanced information.” As a general proposition, the answers to proper examination questions are in the code and anyone who knew the code could pass the exams. Of course, that would not make him a practical electrician in any sense and, as this record indicates, a person can be a competent journeyman electrician, demonstrably, and not even begin to pass a fair code examination. 2. Generally speaking, a fair qualification exam, whether for union membership or municipal licensing, would be topheavy with the type of questions that one working in the trade either carried around in his head or could cursorily answer by a quick reference to the code. 3. Prior to 1963, the U’s examinations, whether fair or not, were necessarily discriminatory, since there is no question that prior to that time U was a guild operation and relatives were preferred. 4. In 1963 the Federal Government began construction or was in the process of construction of a huge new downtown Federal Building in Cincinnati. At or about the same time, the NAACP in' itiated public pressure for the employment of N’s in the craft occupations generally and specifically with relation to this building, and the City of Cincinnati Mayor’s Friendly Relations Committee initiated public pressures along the same lines. At least seven of the first eight formal applications for membership by N’s to U were made in 1963. During the same year U administered, at intervals having no relationship to the intervals heretofore referred to, membership examinations to some 80 or more W applicants. This record does not indicate how many passed. It does indicate that previous passing was not necessarily followed by membership. In any event, 40 W’s were admitted to membership at or about that time. The purpose of this mass examining is not clear in this record. The plaintiff’s position is that the purpose was to “load up the union with W members.” A member of the U Examining Board indicated that due to the unemployment in the trade and the employment by the contractors of some non-union members, the U and the union contractors arrived at some understanding which involved giving mass examinations for the purpose of “weeding out” some of these persons who were employed. In any event, whatever may be the answer, the conclusion is that the mass examinations were administered for purposes other than the proper purpose as stated in the International Constitution and the U bylaws and the Collective Bargaining Agreement, i. e., to determine qualification for admission. 5. In July of 1963, as we have previously noted, a special journeyman examination for N’s only was held. Concededly, it was the result of pressure from civil rights groups, including the Mayor’s Friendly Relations Committee and again it was for at least one purpose other than a proper purpose, being to-wit, “to obtain a good talking point for future meetings” with the civil rights organizations. It was so stated on the U’s minutes. This was the first and the last time that U ever administered “our examination” to any person not then employed in the trade for a union contractor ; or stated otherwise, it was the first and only time that U ever administered a membership exam to anyone who had not previously had the substantial benefit of the U’s referral system, whether the initiative in the referral came from a union contractor or the U. The exam questions were objectively fair and the N’s who took the examination failed, and their papers were objectively fairly graded. 6. Beginning in 1964 and extending through 1965, 1966, and up to July, 1967, U did not administer any membership examination. The failure to do so was attributable to discrimination by reason of the pending applications for membership of N’s. 7. In 1965, the Ohio Civil Rights Commission commenced a searching investigation into allegations of discrimination in the building trades industry in the Cincinnati area. This was at the request of the Cincinnati City Council. The investigation and the reporting of the investigation by the Commission were official actions enjoined upon the Commission by Revised Code of Ohio § 4112.01 et seq. The skilled crafts investigated included, not only the electrician field, but a number of others, such as the masons, carpenters, iron workers, painters, plasterers, and plumbers, etc. While the investigating and reporting was the official business of a duly constituted state agency, and was competent evidence and admitted as such (28 U.S.C. § 1732, Bridger v. Union Rwy. Co., 355 F.2d 382 (6th, 1966); DePinto v. Provident, 374 F.2d 37 (9th, 1967)) we do not, in arriving at any finding of fact herein, take into consideration anything in connection with Plaintiff’s Exhibit XX other than what has been stated immediately hereinabove in this number, and the fact that the report was publicly announced in late February, 1966, and the fact that the competency examination of U was announced the day before. 8. At that time the pressures directed by the NAACP and CORE and the Mayor’s Friendly Relations Committee and the N applicants, not only in U but in the other building crades unions, were for “membership.” At least, insofar as this U is concerned, and probably all the rest of them, a sine qua non condition precedent of “membership” was “work in the trade under the jurisdiction of the union.” It cannot be determined and it is not determined that such a condition precedent was unreasonable. It certainly is not unreasonable in the company of a referral system working without discrimination. This next finding is stated with reluctance, but is forced by this record — the pressurers and the pressurees never got on the same wave length. The U studiously refrained from explaining referral to the pressurers and the pressurers simply refrained from trying to learn anything about it, and the evidence in this record forces that almost unbelievable conclusion. It is determined that there was nothing basically discriminatory about the idea of a competency exam — with the single exception we have noted, this U— and probably the rest of them — were faced for the first time with demands for “membership” without “in the union trade” experience — or-—-“referral” on what might have been a mass scale — and nobody then knew. 9. In any event, a “competency” exam was scheduled and announced. From start to finish it was a comedy of errors. The U, the media, and the pressurers jumbled “journeyman” and “member” and “referral” to such an extent (whether accidentally or purposely) that a student of the matter would have had trouble answering the question: What was the competency exam? To take a few instances — -it was administered by the JATC under a caption entitled, “Joint Competency Board,” which it has never been before or since, on this record. Secondly, while the application as finally prepared made it as plain as plain could be that it was for referral and not for membership, a referral system was described which never has been in existence in the area. That came about in this way — the Collective Bargaining Contract had expired in 1965, and the U and NECA had negotiated and some time in January of 1966 had agreed on a new contract which was, of course, subject to the approval of the International IBEW in Washington. The so-negotiated conditional contract contained a new referral system. Instead of four categories, it had only two, and those dealt only with “qualified workers;” and further dealt only with the “building and construction trade;” neither of which words, i. e., the new ones, ever appeared in an existing referral system and each of which words were more restrictive insofar as N’s were concerned. For instance, a “qualified worker” — and you could not even get on the referral list unless you were a qualified worker— had to have four years’ experience in the .inside electrical trade in the building and construction industry. Furthermore, a “qualified worker” had to have passed either an IBEW exam, or a competency exam given by a JATC, or a JATC apprentice exam. There were then two groups of qualified workers. In Group 1 were those who had worked a half year for each of the preceding four years or more for union contractors. In Group 2 you put everybody else. The negotiation of this new conditional referral system was obviously discriminatory in and of itself. The description of it in the notices and applications for the competency exam was a part of a pattern of discrimination. It was intended to and did “chill.” By some strange “coincidence,” the International Union, which had received the conditional contract in early January of 1966, during the Ohio Civil Rights Commission investigation, acted on it on March 2, 1966, by letter received at the office of the International’s representative in Cincinnati on Victory Parkway, on March 4, 1966. The International ruled thus: “The so-called referral procedure will not be approved. The Local Union is directed to insert the standard referral procedure. * * * ” The letters to the applicants for the competency exam (being persons referred by the Ohio Civil Rights Commission and persons having applications for union membership on file) were mailed on Saturday, March 5, 1966. At no time prior to the competency exam did U make any effort to inform anybody that the overly restrictive referral system described in its letters of March 5 was not ever in effect. It is also noted that in its notice to the prospective takers of the competency exam, the Competency Board refrained from informing the recipients that under the Collective Bargaining Agreement a referred worker who worked for a union contractor for 30 days or more was in a position in which, at least as a matter of contract, he just might become a union member. Another contribution to the comedy— while it was made quite plain at the bitter end that the examination was for referral only, some 55 persons finally took it; 42 were then and had for some time been working on referrals for union contractors. None of them had a thing to gain since he already had a referral job. All of them flunked. None of them lost his job as the result of demonstrating his “incompetency.” Each of them paid $25.00 for the privilege and the only possible effect that it could ever have had on any one of them would have been under the non-existent referral system — which U knew to be non-existent for at least three weeks prior to the time the examination was held. Another contribution to the comedy, the examination cost of $25.00 was stated to cover a written test and a practical test, and the materials necessary for the latter. No practical test was ever given anybody, nor was any partial refund of the $25.00 ever made to anybody. 10. It is found that as a matter of reasonable theory, the competency test, as was the 1963 special N test, was objectively fair and it was objectively fairly graded. They were very much