Full opinion text
OPINION JAMES R. MILLER, Jr., District Judge. Introduction This memorandum constitutes the court’s findings of fact and conclusions of law after trial of this action challenging the practices of defendant Local 122, Sheet Metal Workers International Association (Local 122), which practices first the United States Attorney General and then the Equal Employment Opportunity Commission (EEOC) have alleged a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (hereinafter sometimes referred to as “Title VII”). In the Amended Complaint (Paper 42) and the Pretrial Order (Paper 250; Paper 597), the plaintiff alleges that Local 122 has engaged in a pattern and practice of discrimination against black workers in violation of Title VII. The plaintiff’s burden in a pattern and practice case has been explained in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), where the Court said: “As the plaintiff, the Government bore the initial burden of making out a prima facie case of discrimination And, because it alleged a systemwide pattern or practice of resistance to the full enjoyment of Title VII rights, the Government ultimately had to prove more than the mere occurrence of isolated or “accidental” or sporadic discriminatory acts. It had to establish by a preponderance of the evidence that racial discrimination was the company’s standard operating procedure — the regular rather than the unusual practice.” Id. at 336, 97 S.Ct. at 1855. (citations and footnote omitted). The Court elaborated, writing: “The ‘pattern or practice’ language in § 707(a) of Title VII . . . was not intended as a term of art, and the words reflect only their usual meaning. Senator Humphrey explained: “[A] pattern or practice would be present only where the denial of rights consists of something more than an isolated, sporadic incident, but is repeated, routine, or of a generalized nature. There would be a pattern or practice if, for example, a number of companies or persons in the same industry or line of business discriminated, if a chain of motels or restaurants practiced racial discrimination throughout all or a significant part of its system, or if a company repeatedly and regularly engaged in acts prohibited by the statute. “The point is that single, insignificant, isolated acts of discrimination by a single business would not justify a finding of a pattern or practice . . .’ 110 Cong. Rec. 14270 (1964).” Id. at 336, n. 16, 97 S.Ct. at 1855. In this case the Government has asserted Local 122’s liability on the theory that Local 122 treats blacks differently than it treats whites. Under this theory, the ultimate factual question is “whether there was a pattern and practice of such disparate treatment and, if so, whether the differences were ‘racially premised.’ ” Id. at 335, 97 S.Ct. at 1854. “Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.” Id., n. 15. Also in this case the Government has asserted Local 122’s liability on the disparate impact theory that Local 122 uses “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Id. at 336, n. 15, 97 S.Ct. at 1854. Proof of discriminatory motive is not required under the disparate impact theory. Id. In Dothard v. Rawlinson, 333 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), the Court described the respective burdens of the plaintiff and defendant in a Title VII disparate impact case: “Those cases make clear that to establish a prima facie case of discrimination, a plaintiff need only show that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern. Once it is thus shown that the employment standards are discriminatory in effect, the employer must meet ‘the burden of showing that any given requirement [has] ... a manifest relationship to the employment in question.’ Griggs v. Duke Power Co., supra, 401 U.S. at 432, 91 S.Ct. at 854. If the employer proves that the challenged requirements are job related, the plaintiff may then show that other selection devices without a similar discriminatory effect would also “serve the employer’s legitimate interest in “efficient and trustworthy workmanship.’ ” Id. at 329, 97 S.Ct. at 2726. (citations omitted). See, e. g., Roman v. E.S.B., 550 F.2d 1343, 1350 (4th Cir. 1976). Governed by these principles, this court will now examine the facts in this case. FINDINGS OF FACT AND LEGAL STANDARDS I LOCAL 122 — GENERAL Local 122 is a labor organization, as that term is defined in Section 701(d) of Title VII, as amended, 42 U.S.C. § 2000e(d). It represents workers in the sheet metal industry (Stipulation 187 [hereinafter “St.”]). The geographical jurisdiction of Local 122 includes the Maryland counties of Anne Arundel, Baltimore, Calvert, Caroline, Carroll, Cecil, Dorchester, Harford, Howard, Kent, Queen Anne’s, Somerset, Talbot, Wicomico, and Worcester as well as Baltimore City (St. 189). Local 122, through its Labor Committee, represents its members in collective bargaining negotiations with the Sheet Metal and Roofing Contractors Association of Baltimore, Maryland and with individual sheet metal contractors who are not members of that Association (St. 192). Local 122 is required to file annual EEO-3 reports with the Equal Employment Opportunity Commission. The EEO-3 reports submitted by Local 122 in 1968 and 1969 (Plaintiffs’ Exhibits 85 and 86 [hereinafter “PX”]) reflect that, in response to the EEOC’s inquiry whether Local 122 had modified its collective bargaining agreement after the effective date of Title VII (July 2,1965) in order that it would contain a specific clause prohibiting discrimination, Local 122 responded that it had not done so. Members of Local 122 receive the following fringe benefits: health and welfare benefits, pension benefits, and a skill improvement program (St. 194). At the time suit was brought the wage scale for a union sheet metal journeyman was substantially higher than the wage scale paid a non-union sheet metal journeyman (Vol. 15 Transcript, P. 48 [hereinafter Tr.]; St. 193). At the end of the trial, the plaintiff EEOC dismissed with prejudice its allegations regarding the size of Local 122 and the selection devices used by Local 122 (15 Tr. 59-60). The allegations dismissed were: “1. The claim that Local 122 has perpetuated past discrimination by artificially limiting the size of the local union. (No. 28, p. 7, Plaintiffs’ Revised Pre-Trial Order). “2. The claim that Defendant Local 122’s selection devices and requirements, i. e., the journeyman tests, work and age requirement, residency requirement, and employer recommendations, [for handyman membership], discriminate against blacks. (No. 30(a)-(f), pp. 7-9, Plaintiffs’ Revised Pre-Trial Order).” Paper 259; see Pretrial Order Paper 250. II LOCAL 122 MEMBERSHIP There are four kinds of membership in Local 122: journeyman, handyman (sometimes called production worker), limited (retired), and fourth-year apprentice member. Journeyman and handyman members (sometimes collectively called active members) have full privileges and voting powers. This case in its present posture does not directly relate to retired or apprentice members (See St. 202-206). The designations “journeyman” and “handyman” reflect different kinds of skill in the sheet metal trade and different employment situations. The racial composition of Local 122’s combined membership in the journeyman and handyman categories is reflected in this table: LOCAL 122 MEMBERSHIP 1960 to 1977, BY RACE NUMBERS OF MEMBERS AS OF: JANUARY 1 TOTAL BLACK WHITE 1960 500 500 1965 546 546 1966 548 548 1967 551 551 1968 569 569 1969 580 580 1970 582 582 1971 584 584 1972 614 614 1973 618 618 1974 598 598 1975 605 602 1976 585 581 1977 548 544 (St. 213; St. Table VII). Applicants for direct admission to Local 122 as handymen are not required to take an examination, nor must they fulfill a four-year work requirement or age requirement, but they must be an employee of a union contractor in a specialty skills trade, e. g., the manufacture of kitchen equipment (See St. 218, 200). An individual applying for handyman membership must be recommended for membership by the contractor employing him (St. 219). In order subsequently to become a journeyman, a handyman must pass a journeyman test (St. 220). A handyman who wishes to apply for journeyman membership in Local 122 must be recommended by his employer for such status (St. 221). A handyman is sometimes called a “production worker”. The procedures, criteria, and tests for admission as a journeyman are described in Stipulations 222-247, but as previously noted, the plaintiff has dismissed with prejudice its challenge to them except with respect to the general custom that persons seeking direct admission as journeyman members of Local 122 have been required to first obtain work with a union sheet metal contractor and maintain such employment for a period of time prior to applying for membership. Prior to 1974 and dating back to 1950, Local 122 never had a black journeyman or handyman member (St. 215). In 1974, three blacks became journeymen upon graduation from the JATC apprentice program (St. 216). There were approximately four black production workers or handyman members in Local 122 in 1977 (14 Tr. 63-64). There was one black journeyman member of Local 122 in 1977, Melvin Robinson (8 Tr. 75-76). The two other black journeyman admitted with Mr. Robinson in 1974 withdrew from Local 122, reportedly for lack of work (8 Tr. 100-101). The evidence does not break down the white active membership of Local 122 as between journeymen and handymen. All of the officers, business managers, and business representatives of Local 122 from its inception to the date of trial in October, 1977, have been white (St. 199). Ill LOCAL 122*8 WORK The main types of work performed by members of Local 122 are sheet metal roofing; the erection, welding, layout, testing and balancing of sheet metal ductwork and other types of sheet metal installations; the use of sheet metal in kitchen equipment; and general sheet metal shop work (St. 200). The work performed by Local 122 members is exclusively in the building construction industry and primarily in the commercial and industrial, rather than the residential, segments of the industry (10B Tr. 64, 90; 12B Tr. 163, 166; “Agreement Between Sheet Metal & Roofing Contractors Ass’n of Baltimore, Maryland and Sheet Metal Workers’ International Ass’n of Baltimore, Maryland, Local Union No. 122,” Art. I, at 1-4 (1970), PX 79). Welding is an increasingly important “tool of the trade” of a journeyman sheet metal worker. It is only one skill among many, however, that a person must possess in order to qualify as a journeyman sheet metal worker (See, e. g., St. 201; 7 Tr. 34-35; 8 Tr. 31-32, 47; 10B Tr. 91; 12A Tr. 16-18). After an individual’s admission as a journeyman member of Local 122, he is eligible for work in all facets of the sheet metal trade as far as Local 122 is concerned (St. 248). Although sheet metal work in the ship building industry is one type of sheet metal work recognized in the trade by the Sheet Metal Workers’ International Association (see Constitution and Ritual Art. I, § 5, at 1-9 (1974), PX 78), the jurisdiction of a local union does not invariably encompass all types of work claimed by the International Association (see id. Art. Ill, § 2(g), at 27-28). There is no evidence in this case suggesting that Local 122 has jurisdiction over the sheet metal work done in the Bethlehem Steel Company’s shipyard. A. LEGAL STANDARDS FOR STATISTICAL PROOF Since the passage of Title VII, courts have frequently relied, in part, on statistical evidence to find a prima facie case of unlawful discrimination. E. g., International Brotherhood of Teamsters v. United States, 431 U.S. 324, 340 n. 20, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); EEOC v. Chesapeake & Ohio Ry., Nil F.2d 229 (4th Cir. 1978); Lewis v. Tobacco Workers’ International Union, 511 F.2d 1135 (4th Cir. 1978); Roman v. ESB, Inc., 550 F.2d 1343 (4th Cir. 1976) (en banc); Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir. 1976); Barnett v. W. T. Grant Co., 518 F.2d 543 (4th Cir. 1975); Brown v. Gaston County Dyeing and Machine Co., 457 F.2d 1377 (4th Cir. 1972). The Teamsters Court has observed: “[Ajbsent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative’ of the racial and ethnic composition of the population in the community from which employees are hired. Evidence of longlasting and gross disparity between the composition of a work force and that of the general population thus may be significant even though § 703(j) makes clear that Title VII imposes no requirement .that a work force mirror the general population.” 431 U.S. at 340 n. 20, 97 S.Ct. at 1856 (emphasis added). The Supreme Court has instructed trial courts in Title VII cases that when the evidence is a comparison of a defendant’s actual work force to the general population or to a specially qualified work force, the probative value of the comparison depends on the extent of the special qualifications and abilities of the defendant’s actual work force in relation to the comparison work force. Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977); International Brotherhood of Teamsters v. United States, supra; Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974). In Hazelwood, the Government compared the racial composition of the defendant’s actual teacher work force to the racial composition of the qualified public school teacher population in the relevant geographic area, and the Supreme Court approved this comparison, noting: “In Teamsters, the comparison between the percentage of Negroes on the employer’s work force and the percentage in the general areawide population was highly probative, because the job skill there involved^ — the ability to drive a truck — is one that many persons possess or can fairly readily acquire. When special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value. The comparative statistics introduced by the Government in the District Court, however, were properly limited to public school teachers, and therefore this is not a case like Mayor v. Educational Equality League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630, in which the racial-composition comparisons failed to take into account special qualifications for the position in question. Id. at 620-621, 94 S.Ct., at 1333-1334.” 433 U.S. at 308 n. 13, 97 S.Ct. at 2742. Thus Hazelwood teaches that when comparing the defendant’s work force with the general population, the court must take into account special qualifications for the positions in question. The error in failing to account for the special qualifications was illustrated in Educational Equality League. There, in reversing the District Court, the Court of Appeals had found that the small proportion (15%) of blacks on the 1971 Panel for nominating persons to serve as Philadelphia School Board members compared to the general population (34%) of blacks was “ ‘significant’ ” in establishing discrimination. 415 U.S. at 619-620, 94 S.Ct. 1323. Sustaining the district court’s rejection of the comparison to general population statistics, the Supreme Court reasoned: “[T]he simplistic percentage comparisons undertaken by the Court of Appeals lack real meaning in the context of this case. Respondents do not challenge the qualifications for service on the Panel set out in the charter, whereby nine of the 13 seats are restricted to the highest-ranking officers of designated categories of citywide organizations and institutions. Accordingly, this is not a case in which it can be assumed that all citizens are fungible for purposes of determining whether members of a particular class have been unlawfully excluded. At least with regard to nine seats on the Panel and assuming, arguendo, that percentage comparisons are meaningful in a case involving discretionary appointments, the relevant universe for comparison purposes consists of the highest ranking officers of the categories of organizations and institutions specified in the city charter, not the population at large. The Court of Appeals overlooked this distinction. Furthermore, the District Court’s concern for the smallness of the sample presented by the 13-member Panel was also well founded. The Court of Appeals erred in failing to recognize the importance of this flaw in straight percentage comparisons. “In sum, the Court of Appeals’ finding of racial discrimination rests on [inter alia] . racial-composition percentage comparisons that we think were correctly rejected by the District Court as meaningless. In our view, this type of proof is too fragmentary and speculative to support a serious charge in a judicial proceeding.” Id. at 620-621, 94 S.Ct. at 1333. Two lessons are taught the lower federal courts by these Supreme Court decisions. First, to be meaningful — here to be probative of unlawful discrimination — the statistical comparison of defendant’s work force can be made only to a work force with similar qualifications. It may be in a given case that the general population is qualified already for the work in question or at least is as qualified as those actually hired or utilized by the defendant (See, e. g., Teamsters, supra, where the Court believed that the ability to drive a truck was one that many persons in the general population possess or can readily acquire, 433 U.S. at 308 n. 13, 97 S.Ct. 2736). “Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications.” Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). Accord, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (individual plaintiff must prove himself qualified); East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 403-404, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977) (same). Therefore, if the general population lacks the special training, skills, or other qualifications needed for a job, then the comparison of the defendant’s work force to the general population is “meaningless,” and the comparison must be made to a qualified work force. E. g., Educational Equality League, supra. As the Fourth Circuit elaborated in EEOC v. Chesapeake & Ohio Ry., supra: “In the absence of data concerning the number of qualified black persons in the labor pool, the commission’s evidence is insufficient to establish a prima facie case of racial discrimination against black employees as a class. See Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977); Teamsters v. United States, 431 U.S. 324, 334-43, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).” 577 F.2d at 233. Moreover, in EEOC v. United Virginia Bank, 555 F.2d 403 (4th Cir. 1977), the court instructed: “Where the work requires special qualifications, it is proper to consider the ratio of qualified blacks and whites in the appropriate work force rather than the ratio of the gross percentage of blacks and women in the whole work force, including unskilled labor. After all, in any discrimination case, ‘one element which remains essential is that the minority applicant be qualified for the position for which he applies.’ ” Id. at 406 n. 7 (citations omitted). If a work force comparison is relied upon by a plaintiff in a Title VII case, it must be shown as part of the prima facie statistical case that the work force to which the defendant’s actual work force is compared is qualified in fact to do the job. Plaintiff asserts that it need not show that the comparison work force is similarly qualified, and it cites Griggs v. Duke Power Co., supra; Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Teamsters, supra; and Barnett v. W. T. Grant Co., supra. In those cases the plaintiff established a prima facie case by showing that a specific employment practice, e. g., the test in Griggs, had a disparate impact on blacks; no showing by the plaintiff of a similarly qualified work force was required. See Dothard, supra. The plaintiff’s argument, however, neglects a crucial distinction. Statistics disclosing an employment practice’s disparate impact on blacks are direct evidence of a Title VII violation, i. e., use of a facially neutral practice which has a disparate impact but which is not required by business necessity. Such evidence focuses only on applicants who are actually exposed to the defendant’s practices and a fortiori who have been determined by the defendant to be as qualified as the other applicants reaching that phase of the selection process. In contrast, statistics disclosing a racial imbalance in a defendant’s work force compared to the general population are not direct evidence of a Title VII violation since the employment of a racially imbalanced work force is not unlawful. 42 U.S.C. § 2000e-2(j); Teamsters, 431 U.S. at 340 n. 20, 97 S.Ct. 1843; Lewis v. Tobacco Workers International Union, 577 F.2d at 1141. If, however, a significant racial imbalance is disclosed between a defendant’s work force and the available similarly qualified work force, then the trier of fact must weigh the fact of the statistical imbalance with all the other relevant facts in determining whether the plaintiff has proven by a preponderance of the evidence its prima facie case, and thereby required the defendant to explain its practices. See, e. g., Educational Equality League, supra; Hazelwood, supra; EEOC v. Chesapeake & Ohio Ry., supra; Lewis v. Tobacco Worker’s International Union, supra; Roman, 550 F.2d at 1350-1351. A second lesson drawn from the Supreme Court decisions referred to earlier, particularly pertinent as will be seen in this case, is that consideration of a small size sample may sharply reduce the probative value of statistical evidence. Teamsters, 431 U.S. at 340 n. 20, 97 S.Ct. 1843; Educational Equality League, 415 U.S. at 620-621, 94 S.Ct. 1323. See also, EEOC v. Chesapeake & Ohio Ry., 577 F.2d at 232-33. Governed by these principles, this court turns to the statistics produced in this case. B. BUILDING TRADE SHEET METAL WORKERS The core of the comparison work force relevant to this case consists of journeyman level sheet metal workers in the nonunion sector of the building trade in the Baltimore area. Whoever else or whatever other groups may be included in the comparison work force relevant for determination of Local 122’s liability, there is no dispute that this core group must be included. (1) The Numbers At the time of trial in this case, probably 22 or 23 black persons had worked at one time or another in the recent past in the nonunion sector of the sheet metal trade of the building construction industry in the Baltimore SMSA, many of whom might be qualified as journeyman but some of whom were shown at trial to be unqualified (See 2 Tr. 78-79 (Mr. Winke himself); 2 Tr. 109 (Mr. Williams himself); 7 Tr. 45 (Mr. Campbell himself, but not qualified); 8 Tr. 52 (Mr. D. Anderson himself, but not qualified); 14 Tr. 149-150 (Mr. Collins’ friend who is now in school); 15 Tr. 34, 43 (Mr. Jackson himself, 10 other employees of Ingleside Mechanical Contractors, 3-4 others); 14 Tr. 52-53 (Local 122’s recruitment of Mr. Witherspoon, now perhaps deceased, 14 Tr. 2-5); 11 Tr. 85 (2 or 3 black persons seen welding in a nonunion sheet metal shop); 15 Tr. 96-101 (colloquy with counsel). The plaintiff suggests that there must be more black journeymen nonunion sheet metal workers who could be expected to apply to Local 122 for membership. Such a finding would be speculation sharply in conflict with the limited evidence presented by plaintiff; with the serious difficulty plaintiff had in finding black journeymen witnesses; and finally with the consistent testimony that few, if any, black journeymen were or are known to various union members, contractors, and one former government official (See 10B Tr. 83, 119-120 (Mr. Russell, Local 122 business manager or officer for 22 years, never observed black journeymen sheet metal worker locally on union or nonunion jobs, except for some from New York for temporary work); 11 Tr. 71-85 (Mr. Wenderoth, a Local 122 member for 30 years and a teacher in a Baltimore City apprentice program for one year who visited eight or nine nonunion shops to place the City apprentices, observed two or three black persons welding in a sheet metal shop but did not know of any black journeymen); 12A Tr. 2 (Mr. Courtney, a former organizer for the steamfitters union — a related mechanical construction trade which works on the same jobs, but not in the same shops as the sheet metal trade, id. 39-40, observed no nonunion black sheet metal journeymen on the job sites during his 1964-1969 recruiting efforts, id. 6, but had no knowledge of nonunion shops, id. 40); 13 Tr. 14, 26-28 (Mr. M. Anderson’s 1974 efforts as a union contractor’s superintendent and sheet metal journeyman to find and hire black sheet metal journeymen for a Naval Academy building); 14 Tr. 5 (Mr. Ulrich’s 1969 efforts as a union contractor’s manager to find and hire black sheet metal journeyman, id. 7-10; his February 6, 1969 (presuit) letter as president of union contractors association to H.U.D. Office of Equal Employment Opportunity asserting willingness to hire but inability to find black sheet metal journeyman, id. 12-13, 18-22, DX 95; and finally his present observation as a nonunion contractor that he doesn’t know and hasn’t heard of any black journeymen, id. 14, 32-34); 14 Tr. 38-40 (Mr. Fortier’s 1971 efforts as union contractor’s project manager to find and hire black journeyman for Social Security building); 14 Tr. 73-75 (Mr. Wilford, the Local 122 business manager’s 1975-77 organizing efforts found nonunion black journeymen only at Ingleside (Mr. Jackson et al.) and at Allstate (Mr. D. Anderson); 14 Tr. 141,148-152 (Mr. Collins, a fourth year black J.A.T.C. apprentice didn’t know anyone interested in joining Local 122 who wasn’t in J.A.T.C. program); and finally the testimony of Mr. Muntain). Mr. Muntain has been a member of the Construction Engineers Workers Union, the president of the Baltimore Building Trade Council during 1961-64, the chief labor liaison for the E.E.O.C. for sometime between 1964 and 1969, and the Director, H.U.D. Office of Equal Employment Opportunity during 1969, and he is now employed as a foreman for a construction company. For some time he has been an attorney and a member of the Maryland Bar (13 Tr. 2-6). Mr. Muntain testified that during 1961-64, he was generally familiar with the sheet metal workers in the Baltimore area and he knew of no black sheet metal workers in the area at that time. (14 Tr. 101-103). Even after allowing for the often limited basis of knowledge underlying the testimony of these witnesses and the bias of many of them toward the union, this court finds that their testimony is generally credible relating to the scarcity of black journeyman nonunion sheet metal workers in the area. This testimony negates any speculative inference that there must be more black journeymen nonunion sheet metal workers somewhere out there. The total number of journeyman level sheet metal workers in the nonunion sector of the building industry has not been established by the evidence. Nor has the total number of all journeyman — union and nonunion — in the sheet metal segment of the building trade been established. One reason those totals have not been established is that, as explained below, the U.S. Census Bureau statistics for sheet metal workers and tinsmiths classified by occupation only are not a reliable basis for determining the total numbers of either white or black journeyman level sheet metal workers in the building construction industry. A second reason is that the only testimony about the total number of sheet metal workers was that of thirty-five year Local 122 journeyman Mr. Osmond P. Wenders, who in explanation of his not knowing Melvin Robinson, a black journeyman, said, “I can’t say that I do . There is possibly a thousand sheet metal workers in the city.” (11 Tr. 75). This number was not solicited, given, or understood as an estimate of the number of journeyman sheet metal workers in the geographic area over which Local 122 has jurisdiction. The plaintiff has not established by a preponderance of the evidence the total number of journeyman sheet metal workers in the building industry in the geographic area over which Local 122 has jurisdiction. After eliminating the two persons shown not to be qualified to be journeyman sheet metal workers, the court finds by a preponderance of the evidence that there are approximately 21 nonunion black sheet metal workers in the jurisdiction of Local 122, many of whom would be qualified journeyman and that there is no persuasive direct evidence of the total number of black and white, or just white, nonunion journeyman sheet metal workers in Local 122’s jurisdiction. (2) Comparison And Findings In the absence of data revealing the proportion of blacks (21) in the total (unknown) work force of nonunion sheet metal journeymen in the building trade, the plaintiff’s evidence is insufficient to establish a prima facie case in this manner. See EEOC v. Chesapeake & Ohio Ry., supra. C. SHIPYARD SHEET METAL WORKERS The inclusion of sheet metal workers from Baltimore area shipyards in the comparison work force must be examined on two grounds — number and qualification. (1) The Numbers Mr. Evans, a black first class sheet metal worker employed by Bethlehem Steel Corporation (15 Tr. 14-15), apparently at its Sparrows Point Shipyard (id. 19), testified that about 15 or 20 black first class sheet metal workers have worked at Bethlehem Steel since 1968 (id. 18). Mr. D. Anderson, a black person, was employed at the Bethlehem Steel Sparrows Point Shipyard as a first class sheet metal worker (8 Tr. 52-54). Mr. Robinson, a black member of Local 122 and a graduate of the 4 year J.A.T.C. program is employed at Bethlehem Steel Corporation’s Key Highway Shipyard (8 Tr. 75-76). There is no evidence whether there are any additional black sheet metal workers at the Bethlehem Steel Key Highway Shipyard or at Maryland Shipbuilding and Drydock. The total number of black sheet metal workers from the shipyards who are not already members of Local 122 then is 15 or 20. There is no evidence on the number of white sheet metal workers in the shipyards. (2) Qualifications The general testimony is consistent that the sheet metal workers at the shipyards do work which is similar to the work done by Local 122’s members (8 Tr. 103 (Mr. Robinson, black Local 122 member); 15 Tr. 18 (Mr. Evans); 8 Tr. 58 (Mr. D. Anderson); 10B Tr. 80-81 (Mr. Donnelly, recording secretary and 25 year member of Local 122); 10B Tr. 99, 12B Tr. 66-67 (Mr. Russell, Local 122 business manager and 37 year member); 8 Tr. 40-41 (Petty Officer Copeland, plaintiff’s expert witness)). This general testimony, however, is subject to a crucial qualification made by both Mr. Russell and Petty Officer Copeland. Mr. Russell, Local 122’s business manager, testified under cross-examination by plaintiff: “Q. Did you ever, during this period of time or later, seek to obtain qualified sheet metal workers from a shipyard? “A. No, we didn’t because we have used their men at times. When they were slow we have used their men to fill in when we were busy; but to obtain them, you know, when you get to the shipyard it’s different from the building trades. In my experience, and, of course, now it may have changed some, in the shipyard, if you’re a cutter, as we call cutters, they have what they call lofts men who take and trace on a piece of paper a fitting, and he takes that down in the shop and gives it to a man who traces it on metal and cuts it out. We don’t call that a cutter. In the shipyard, Sparrows Point, they have specialty people who do one thing. Now, in the time I am speaking of, they were not qualified to do our work. They could work on a piece of machinery or something like that, but to give them a drawing, they were not at that time that qualified. “Q. Weren’t they doing ventilation on boats at that time? “A. Yes, but ventilation on boats, let me tell you, is different than in a building. As I told you, the guy who cuts that, lays that fitting out and cuts that fitting out, not one guy does that. They have a guy who measures and a guy who lays it out, what they call a lofts man. Then they take it to a sheet metal shop after it’s been already laid out and give it to a man. “Q. Isn’t ventilation duct work done on boats similar? “A. Yes. Air conditioning is done on boats. “Q. Isn’t that similar to the type of work performed by Local 122 members? “A. It is similar. You would say it is similar, but there is a difference in it too. “Q. Isn’t it true, as you have just testified, that there were occasions, in fact, when you used people from the shipyard? “A. Yes, to work with our people. “Q. And they did the same kinds of things that Local 122 members did? “A. With one of our guys, yes.” (12B Tr. 166-168). Petty Officer Copeland, plaintiff’s own expert witness testified: “Q. In your opinion, can a journeyman sheet metal worker employed in a shipyard readily transfer his skills to the type of work involved in large building construction? “MR. HIRSCH: Objection. “THE COURT: Do you mean the next day or ten years later? “MR. DAVIS: Yes, sir I mean do it the next day. “THE COURT: I’ll overrule the objection with that modification. “THE WITNESS: Certain phases, yes; certain phases, no. “BY MR. DAVIS: “Q. What phases would he not be able to? “A. Layout work would be the same. Some installation would be different. There may be a different type of hanger. It would be a basic thing like that. Not the general scope of the work. “Q. Would the type of things that are different be the type of things which would be, in your opinion, difficult to learn? “A. No. “THE COURT: Difficult to learn in what period of time? Are we talking about the next day or something that you would have to take a course to do? “MR. DAVIS: That was going to be the next question. “THE WITNESS: You probably couldn’t do it the next day but you wouldn’t have to take a special course. You would probably have to see the job specification, see what kind of seam it requires and what kind of hanger is required. It would be difficult. “BY MR. DAVIS: “Q. How long? Are you talking about years? “A. No. Months. Maybe one month.” (8 Tr. 40-41). While the “general scope” of sheet metal work in the shipyard and the building construction industry are similar and some “phases” are the same, a sheet metal worker at the journeyman level for shipyard work would need “maybe one month” or maybe more “months” of on-the-job training to adjust his skills and techniques for construction trade work at the journeyman level (See 7 Tr. 28-30 (Chief Petty Officer Halfkenny, plaintiff’s welding expert, testified that three weeks of regular eight hour days were needed for a heavy metal welder to qualify as sheet metal welder)). Because they are not presently able to do building construction industry sheet metal work at the journeyman level, the shipyard sheet metal workers may not be included in the comparison work force relevant to Local 122’s liability under Title VII for race discrimination. The plaintiff argues that while a shipyard sheet metal journeyman may not presently be able to do building trade work, he can fairly readily acquire the ability to do building trade work in the same sense that Teamsters said the general public was able to “readily acquire” the skill of driving a truck. See 433 U.S. at 308 n. 13, 97 S.Ct. 2736. Without specific information on how difficult it is to learn to drive the type of trucks involved in Teamsters, an informed comparison is precluded. Nonetheless, the need for a month or months of on-the-job training and skill adjustment seems inconsistent with the dictionary definition of “readily”: “. . . without hesitating . or delaying . . . with fairly quick efficiency; without needless loss of time . . . with a fair degree of ease .” Webster’s Third New Internationa! Dictionary 1889 (1966). Nor is there any evidence that building contractors seeking sheet metal journeyman would employ persons able to “readily acquire” the journeyman’s skills with a month or more of training rather than a person now able to do the job. The plaintiff’s argument is not supported by the evidence in this case. The plaintiff’s attempt to count shipyard employees in the comparison work force is also undermined by its own expert who testified that only persons able to do the job properly without additional training or experience should be included in the relevant work force (10A Tr. 31-32; 9 Tr. 150). (3) Comparison and Finding Shipyard sheet metal journeyman workers do not possess the qualifications of skill and training possessed by building trade sheet metal journeyman. Moreover, in the absence of data revealing the proportion of blacks (15-20) in the total (unknown) work force of shipyard sheet metal journeyman, the consideration of the 15-20 blacks only is insufficient to establish a prima facie case in this manner. D. U. S. CENSUS OF OCCUPATIONS Statistics from the 1970 U. S. Census were introduced into evidence by plaintiffs on the numbers of black and white persons in three U.S. Census Bureau occupation categories: roofers and slaters; sheet metal workers and tinsmiths; and welders and flamecutters (PX 184 (marked, numbered, and discussed as PX 183 in 9 Tr. 95-195, but renumbered PX 184 at 10A Tr. 2); 10A Tr. 126-27). The defendant refused to stipulate to the relevance of the occupation statistics. (1) Occupation Statistics Alone In his testimony Mr. Jon Priebe, a supervisory statistician in the labor force statistic branch of the Census Bureau, explained that the classification into an occupation category is based on a respondent’s free-form answers to three questions, (9 Tr. 91, 105); and that no definitions are provided to guide the respondent’s answers (id. 92, 100, 105, 108, 136-137). As to the occupational classification for “sheet metal workers and tinsmiths”, Mr. Priebe testified that apprentices were included in the tabulation (9 Tr. 101); that the classification included persons working in the building industry (Industry Code 67), but that it also included persons from the aircraft industry (I.C. 227), the fabricated structural metal industry (I.C. 158), and several other industries (See id. 101-113, 136-138). Some of the “sheet metal workers and tinsmiths” are journeyman level sheet metal workers the building industry, but their number and the racial composition of that number are not established by the evidence. There is no evidence that the skills of sheet metal workers in these other industries are more similar to the skills in the building trade than the skills of the shipyard sheet metal workers. Comparison of Local 122’s actual work force to aircraft workers, therefore, is no more permissible than a comparison to the shipyard workers. in The occupational classification “roofers and slaters” includes all roofers no matter what type of skill they may possess — sheet metal, slate, tile, tar — although at least they all seem to work in the building industry (9 Tr. 121-122). There was no effort by plaintiff to identify the journeyman sheet metal worker component of this classification. The occupational classification “welders and flame-cutters” included persons working with sheet metal in the building industry, persons working with other metals in the building industry, and still others in other industries (9 Tr. 122-125). “534 Roofers and Slaters Applicator — Roofing B,067 Composition roofer Gravel roofer — B.067 Hot-tar roofer — B,067 Metal roofer — B,067 Metal worker — Roofing co.B Roofer — B,067 Roofing applicator — B.067 Roofing layer — B,067 Slate roofer — B.067 Slater — B,067 Tar roofer — B,067 Tile roofer — B,067 Tin roofer — B,067” PX 184, at 0-61, VII-ix. The plaintiff’s own welding expert testified that it would take three weeks of regular eight hour days of work for a heavy metal welder to qualify as a sheet metal welder. (7 Tr. 28-30). Moreover, on cross-examination plaintiff’s sheet metal expert conceded that a person fully qualified as a sheet metal welder through special training was not, in his opinion, properly classified as a journeyman sheet metal worker (8 Tr. 52). This opinion is consistent with the defendant’s position about the building trades generally (12A Tr. 16-18 (Mr. Courtney, President, Baltimore Building Trades Council)) and about Local 122 in particular (14 Tr. 64-71, 75-81 (Mr. Wilford, Local 122’s current business manager’s explanation of test for knowledge of person seeking to be Local 122 journeyman with specialty in welding)). The plaintiff has apparently conceded this issue (14 Tr. 145-146). Each occupation statistic includes persons who do not have the skills of a journeyman sheet metal worker in the building industry, and each occupation statistic includes persons who do not have the required skills. This court finds on the facts and evidence of this case that the tabulations of U.S. Census data for the Baltimore SMSA identified only by race and by U.S. Census occupation classification are not persuasive evidence of the numbers of black and white persons in the Baltimore SMSA who are journeyman level (or any skill level) sheet metal workers in the building construction industry (See 10A Tr. 46-48). Relying on Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), and Teamsters, 431 U.S. at 342 n. 23, 97 S.Ct. 1843, the plaintiff has argued that the occupation statistics were the only statistics available to prove its statistical case and that the extreme underrepresentation of blacks in the defendant’s membership obviates the need for finely tuned statistics. Initially, the plaintiff’s premise that its occupation statistics were the only ones available is contradicted by the U.S. Census Bureau’s supervisor statistician. With respect specifically to the sheet metal occupation statistics, Mr. Priebe testified that upon request the Census Bureau could have prepared a tabulation for the Baltimore SMSA identified by occupation, race, and industry (9 Tr. 139-145). Data identified by geographic area, by race, by occupation (sheet metal worker), and by industry (building) were available to plaintiff if requested, but they were not offered. An inference strongly adverse to plaintiff would be justified to the effect that if produced, the statistics would have shown few black building trade sheet metal workers. But in this case the court believes the omission of this evidence resulted from inadvertence rather than design and will draw no adverse inference from the omission alone. The potential existence of this evidence does, however, lead this court to reject the plaintiff’s urgings to rely on the occupation statistics here as the only data available. Three important distinctions between this case and Castaneda and Teamsters should be noted. First, unlike Castaneda, in this case the defendant has demonstrated quite persuasively that the occupation statistics are not an accurate count of the persons with the skills pertinent here. See 430 U.S. at 487-488, 97 S.Ct. 1843. Second, unlike Castaneda’s statistical analysis of the general population for purpose of grand jury service, a duty falling upon citizens equally, in this case, as in Educational Equality League’s concern for persons with specific qualifications, the requirement of identifying persons with the skills of journeymen sheet metal workers in the building trade must be heeded by the court and the plaintiff. Third, unlike the ability to drive a truck already possessed by defendant’s own minority employees and by the general population in Teamsters, the skills of a sheet metal journeyman are not widely possessed but are generally acquired through long periods of apprenticeship training. The plaintiff’s occupation statistics from the U.S. Census do not establish persuasively a reliable basis for a statistical analysis or comparison of Local 122’s membership and a relevant labor force. E. GENERAL POPULATION The plaintiff has not shown by a preponderance of the evidence that the skills of a sheet metal journeyman in the building industry are already possessed or can be readily acquired by members of the general population. On the contrary, the evidence establishes that a substantial degree of skill and training is required. Accordingly, on the facts of this case and for the reasons explained in Part IV, A, supra, a comparison between the general population and Local 122’s actual work force does not support any inference of a pattern and practice of disparate treatment of blacks by Local 122 since 1965, nor does it support an inference of disparate impact on blacks of any of Local 122’s employment practices since 1965. Plaintiff has cited several lower federal court decisions for the proposition that general population statistics when compared to low numbers of blacks union membership establishes a prima facie case of racial discrimination. The citations rest on a misapprehension of the use of statistics in those cases. In a pattern and practice suit brought by the EEOC against the sheet metal workers local union in New York City, liability was determined by the court to exist from proof of disparate treatment of blacks in several ways as well as from proof of a large number of qualified black sheet metal workers in other local unions of the same International Association of Sheetmetal Workers in the same geographical area. After liability had been established, black representation in the general population was used as a goal for future black representation in the defendant local in the court ordered affirmative action plan. EEOC v. Local 638 . Local 28, S.M.W.I.A., 401 F.Supp. 467, 482-487 (findings of fact and conclusions of law), 421 F.Supp. 603, 606, 617 (relief) (S.D. N.Y.1975) (Werker, J.) aff’d with two modifications, 532 F.2d 821, 824-827, 832 (2d Cir. 1976), on remand, unreported order (S.D. N.Y. January 19, 1977), aff’d, 565 F.2d 31, 35-36 (2d Cir. 1977). In many of the other cases relied upon by plaintiff, analysis discloses similar weakness of the cases as authority for the broad proposition for which they were cited, e. g. EEOC v. Local 638, Enterprise Ass’n of Steamfitters, 360 F.Supp. 979, 989-990 (S.D.N.Y.1973) (New York City Steamfitters case) (reliance on both disparate treatment and disparity between local membership and general population), aff’d and remanded, 501 F.2d 622, 632-633 (2d Cir. 1974) (use of percentage goal for representation as relief affirmed, but remanded for reassessment of 30% figure based on general population to “most precise standards and statistics available”, suggested to be 19.79% labor force (excluding children, women, retired persons) (no appeal of liability), on remand, 400 F.Supp. 983 (S.D.N.Y.1975) (26% found to be appropriate goal); United States v. Local 638 . . . Local 40, B.S.O.I.W., 347 F.Supp. 169, 180-182, 184-185 (S.D.N.Y.1972) (New York City ironworkers case) (artificial limit to union size, referral hall preference for current white membership, no membership representation goal decreed); Equal Emp. Opportunity Comm. v. Local 5, International Ass’n of Elevator Constructors, 398 F.Supp. 1237, 1252 (E.D.Pa.1975) (Philadelphia Elevator case) (general population used since no special qualification required, disparate treatment, goal set), aff’d 538 F.2d 1012 (3d Cir. 1976); United States v. Local 169, Brotherhood of Carpenters and Joiners, 457 F.2d 210 (7th Cir. 1972) (disparate treatment in referral, nepotism, refusal to participate in state and contractor affirmative action plans, and uncertain reference to general population statistics); United States v. Local 86, B.S.O.R.I.W., 315 F.Supp. 1202 (W.D.Wash.1970) (four cases; ironworkers, sheet metal, pipefitters, electricians) (disparate treatment, general population statistics noted but not relied on), aff’d 443 F.2d 544, 550-551 (9th Cir. 1971) (not faced with case where court has relied on statistics alone); United States v. Local 1, B.S.O.I.W., 438 F.2d 679, 680 (7th Cir. 1971) (Chicago ironworkers case) (reversing District Court’s pretrial dismissal for Attorney General’s refusal to produce documents bearing on his 42 U.S.C. § 2000e-6(a) “reasonable cause” determination)). F. COMPOSITE STATISTICS Notwithstanding the deficiencies found in the U.S. Census statistical data offered by plaintiff, an effort could be made to develop from the evidence in the record a composite statistic on which a statistical analysis could be based. One primary problem with such a sua sponte revision, reorganization, and reconsideration of the evidence introduced at trial in open court as required by F.R.Civ.P. 43 is that the defendant might be deprived of its opportunity to meet and rebut the evidence and factual arguments adduced against it. Moreover, although accurate addition and division of the numbers in evidence is within the court’s ability, the testimony in this case illustrates convincingly the meaninglessness of a simplistic manipulation of numbers without careful evaluation of the source and foundation of those numbers and of the skills and qualifications of the persons counted. See Educational Equality League, 415 U.S. at 619-621, 94 S.Ct. 1323; Lewis v. Tobacco Workers’ International Union, supra; Roman v. ESB, Inc., supra. In any event, such a composite statistic would not support the plaintiff’s position. There are 21 black sheet metal workers in the jurisdiction of Local 21, many of whom would be qualified as journeymen in the building trade. That number, 21, might be the numerator on one side of a ratio as to which the denominator would be the total number of sheet metal workers in the Baltimore area in the building construction industry. A total of 2112 persons (of which 93 were black and a number were apprentices were counted as sheet metal workers and tinsmiths by occupation by the Census Bureau (PX 184; St. 189). If the inclusion of the unqualified in, and the exclusion of the qualified from, that number were ignored (or assumed without any foundation to compensate for each other) and if the 72 (93-21) blacks not shown to qualify are eliminated from both the numerator and the denominator, then blacks represent 1.03% (21/204o) of the composite statistic, or to put it another way, of the persons who might be journeymen sheet metal workers in the building trade in the Baltimore area. At this point it is appropriate to observe that blacks constitute 1.4% (V280) of all persons admitted to the union from 1960 to 1975 (St. 210), and that Local 122 has made in 1971 (before this suit) and in 1977 efforts to organize a nonunion sheet metal shop employing 11 other black journeymen (See Part VII, infra). In the context of these admission and recruitment statistics, the disparity between the 1.03% composite statistic and the 1.71% (Vms), current representation of black journeymen and handymen in Local 122 (Part II, supra), does not persuade this court by a preponderance of the evidence that Local 122 since 1965 has treated blacks differently from whites or has used employment practices that fall more harshly on blacks as a group than on whites as a group. Plaintiff’s expert in labor economics testified that if the relevant labor market for journeymen sheet metal workers in Local 122’s jurisdiction included as little as one-half of one percent (0.5%) blacks, a statistically significant disparity would exist between that relevant labor market and the black membership in Local 122 (0 out of 598 as of January 1, 1974) (10A Tr. 39-41). In the circumstances of this case, this comparison is not persuasive, in large part because in 1971, Local 21 attempted to organize a nonunion shop with 11 black journeymen. The Local’s inability to do so then or in 1977 illustrates a factor in the definition of the available work force to which the plaintiff has paid no attention. This factor ignored by the plaintiff is the dichotomy between non-union and union shops. If an individual does not desire to join a trade union because he prefers the advantages of nonunion work over the advantages of union work, the union cannot be faulted for excluding that individual from its membership. The fact that a black person is not a member of a union cannot, in short, ipso facto mean that he has been excluded through racial discrimination since there may be many reasons, completely independent of racial factors, why he has not sought to join. For all these reasons, a hypothetical composite statistic does not establish plaintiff’s prima facie case in the circumstances of this case. G. LOCAL 122’s MEMBERSHIP AND STATISTICAL DISPARITY There are very few blacks in Local 122 (See Part II, supra). The plaintiff, however, has not shown that there is a large pool of qualified, available, union-minded, and black journeymen in the jurisdiction of Local 122. Only six black men claiming to be journeymen testified. Two were not qualified; two worked in the ship yard; one was in Local 122; and one, an employee in the nonunion shop that Local 122 has tried to organize, declined an offer to sign up and help unionize his shop (Id. 15 Tr. 50). At best plaintiff showed 21 blacks who might be qualified journeymen in the building trade. In the context of this small sample, the value of the statistical comparisons proposed here is minimal. As Chief Judge Brown wrote: “While we recognize that ‘ “ [statistical analyses have served and will continue to serve an important role” in cases in which the existence of discrimination is a disputed issue,’ Teamsters v. United States, 431 U.S. 324, 339, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396, 417 (1977), we do not find error in the District Court’s determination that the statistical disparities revealed here, considered in the context of ‘all of the surrounding facts and circumstances,’ 431 U.S. at 340, 97 S.Ct. at 1857, 52 L.Ed.2d at 418, do not constitute a prima facie showing of discrimination. The numbers concerning the Historical Research Center are drawn from a pool too small to produce highly valuable evidence. See Teamsters v. United States, supra, 431 U.S. at 339, 97 S.Ct. at 1856 n. 20, 52 L.Ed.2d at 418 n. 20. Moreover, as the Supreme Court has noted, ‘such general determinations, while helpful, may not be in and of themselves controlling as to an individualized hiring decision, particularly in the presence of an otherwise justifiable reason for refusing to rehire.’ McDonnell Douglas Corporation v. Green, supra, 411 U.S. at 805 n. 19, 93 S.Ct. at 1826, 36 L.Ed.2d at 697 n. 19. The evidence as to the comparisons among the candidates for the promotion leads us to hold that the District Court Judge was warranted in concluding that discrimination was not a reason for refusing to elevate plaintiff to the archivist position. The statistical disparities are not sufficient to overcome this conclusion or independently to constitute a prima facie case of sex discrimination.” Adams v. Reed, 567 F.2d 1283,1287 (5th Cir. 1978). In the circumstances of this case, the plaintiff has not shown by a preponderance of the evidence that any disparity exists between the black membership in defendant Local 122 and black representation in the qualified, available, and willing work force. IV. SHEET METAL JOBS GENERAL Sheet metal contractors who have collective bargaining agreements with Local 122 may hire persons, who are already union members, either by hiring them directly or by contacting officials of Local 122 for names of union members available for employment (St. 258). Unionized sheet metal contractors, with few exceptions, hire only members of Local 122 (St. 259). In two instances, once in 1971-73 and again in 1974, union sheet metal contractors working on federal government construction projects hired Mr. Witherspoon, a black person, as a journeyman level sheet metal worker notwithstanding his lack of union membership, his lack of tools in the 1971-73 instance, and his lack of journeyman level skills. These actions were taken to satisfy the demands made by Government contracting offices, who put significant pressures on contractors to hire black journeymen sheet metal workers (See 13 Tr. 26-30 (Warren-Ehrst-Linck Co.’s job at the U.S. Naval Academy); 14 Tr. 39-42 (Lloyd E. Mitchell Co.’s Social Security Administration Building job); 14 Tr. 136-140 (former government officer). Local 122 did not object to or hinder these actions (13 Tr. 30 (“Q: Did the Union try to stop you from hiring him” A: No, I had their blessing.”); 14 Tr. 40. Local 122 members who desire employment in the sheet metal industry may solicit employment directly from sheet metal contractors or may notify officials of the union that they are out-of-work and available for employment (St. 260). As a black journeyman member of Local 122 testified, “it’s standard practice that it is left up to journeymen, if they want to seek out a particular employer to find a job” (8 Tr. 99). Officials of Local 122 dispense information about the work status of any of its individual members if such information is requested by a sheet metal contractor (St. 261). Approximately 95% of sheet metal positions with sheet metal contractors are filled directly by the contractors (St. 262). The Trade Rules and By-Laws require all members of Local 122 who begin, terminate or change employment to notify the office of the Business Representative within 24 hours, but this requirement was not generally followed in the past (St. 263). Sheet metal contractors are required to report changes in personnel and layoffs of personnel, but they do not report such matters consistently (St. 264). At the time this EEOC suit was brought in January, 1974, Local 122’s members were enjoying a period of high employment, compared to the period since then. At one time in 1976, unemployment among Local 122’s membership approximated 65% (12B Tr. 99-100). Under the collective bargaining agreement to which Local 122 is a party, employees of a union contractor must be either a member, a registered apprentice or a temporary permit holder (PX 79, Art. 11, at 4; St. 275). No evidence in this case suggests that Local 122 members refuse to work on the same jobs as sheet metal workers hired by an employer without prior union permission. Indeed, in so far as there is any evidence, Local 122 appears to acquiesce in contractor hiring decisions, including a decision to hire outside the union (14 Tr. 26). Such condition varies considerably from the factual setting in EEOC v. Local 638 . Local 28, S.M.W.I.A., supra, where Judge Werker found that Local 28 had substantial if not total control of union sheet metal jobs because it refused to work on the same job with sheet metal workers who were not Local 28 journeymen or apprentices or who had not prior to being hired obtained Local 28’s permission to work. 401 F.Supp. 472-474. Judge Werker found that the practice of Local 28 interfered with the contractor’s efforts to meet the contractual affirmative action plan obligations, id. at 474. Local 122 d