Full opinion text
FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OF OPINION SCHWARZER, District Judge. Contents Page I. Introductory Statement....................................... 285 II. Background of this Action...................................... 285 III. Findings of Fact............................................. 286 St. Francis................................................ 286 Hilton.................................................... 287 Union.................................................... 288 Individual Claimants........................................ 290 Class Members............................................. 291 IV. Discussion................................................... 292 A. Statute of Limitations..................................... 292 B. Liability of Hotels for Discriminatory Acts of Union............ 293 1. Vicarious Liability..................................... 293 2. Conspiracy........................................... 294 3. Violation of Collective Bargaining Agreement.............. 294 C. Liability of Hotels on Individual Claims....................... 295 1. St. Francis........................................... 295 2. Hilton............................................... 296 D. Liability of Hotels on Class Claim........................... 296 1. Standard of Proof under Section 1981 .................... 296 2. Elements of Prima Facie Case........................... 300 a. Relevant Labor Market ............................. 301 i. Geographic Area.............................. 302 ii. Age Bracket.................................. 303 iii. Population Segment............................ 303 iv. Time........................................ - 304 v. Earnings bracket........................:..... 304 vi. Employment Qualifications...................... 306 vii. Finding and Conclusion Respecting Black Male Availability ..................................... 307 b. Comparison of Defendants’ Data...................... 307 i. Hiring Transfer and Promotion Data............... 307 ii. Statistical Analysis — Prima Facie Case.............. 310 3. Defendants’ Rebuttal Evidence .......................... 311 a. Applicant Flow Data................................ 312 b. Experience Requirement ............................ 312 V. Conclusion.................................................. 315 I. Introductory Statement This is an action for alleged discrimination by defendants in hiring, promoting and transferring black males into waiter positions. Plaintiffs sue on behalf of themselves and a class consisting of black males who were denied employment as waiters. The only defendants remaining in the case are The St. Francis Hotel Corporation (“St. Francis”) and Hilton Hotels Corporation (“Hilton”). Plaintiffs’ principal claim is based on 42 U.S.C. § 1981, but they also charge that defendants conspired with the labor union representing waiters in violation of 42 U.S.C. § 1985(3) and breached the collective bargaining agreement in violation of 29 U.S.C. § 185. II. The Background of this Action This case has had a long and tortuous history; only so much as is relevant to this disposition is summarized here. The original complaint was filed on March 28, 1973. Of the original defendants only the St. Francis remains. On June 27, 1973, its motion to dismiss the Section 1981 claim was denied. On March 19, 1975, plaintiffs’ motion for class certification was denied. On March 11, 1977, the Court of Appeals reversed the class order and remanded the case which meanwhile had been reassigned to another judge. 549 F.2d 1330 (9th Cir.). On May 31, 1977, an amended and supplemental complaint was filed against the original defendants. On August 23, 1977, the Court tentatively determined that the action could be maintained as a class action against the defendant labor unions but not against the St. Francis. On February 8,1978, plaintiffs with leave of Court filed a second amended and supplemental complaint adding several new defendants, including the Hilton, and alleging claims under Sections 1981 and 1985 against all defendants and under Title VII against all but the St. Francis. On August 8, 1978, the Court ruled on a number of motions. So far as is relevant here, the Court’s order struck the claim of plaintiff McDowell against the St. Francis, denied the motion for summary judgment against plaintiff Dennis, dismissed the claims against the Hilton arising under Title VII, except for prospective relief, and those claims predating February 8, 1975. On June 22, 1979, the Court entered a second amended order permitting the action to proceed on behalf of a class defined, so far as is now relevant, as follows: A. All black males working, or seeking to work as waiters who, after March 28, 1970, were or are being or are in the future, on account of their race, sk * * * # * (3) denied employment by defendant Saint Francis Hotel Corporation; or (4) terminated by defendant Saint Francis Hotel Corporation; or (5) denied promotions by defendant Saint Francis Hotel Corporation; or (6) denied equal treatment with white waiters with respect to assignment or compensation by defendant Saint Francis Hotel Corporation. B. All black males working, or seeking to work as waiters who, after February 8, 1974, were or are being or are in the future, on account of their race, (1) denied employment by Hilton Hotels Corporation; or (2) terminated by any of said defendants; or (3) denied promotions by any of said defendants; or (4) denied equal treatment with white waiters with respect to assignment or compensation by any of said defendants. The action went to trial before the Court on October 29, 1979, on the claims of the foregoing class and the individual claims of Whitman, Dennis and Gay against the St. Francis and Whitman, Dennis and McDowell against the Hilton. After seven trial days, and extended oral argument heard on November 21, 1979, the action was submitted. III. Findings of Fact Findings of Fact Respecting the St. Francis The St. Francis is a large, class A luxury hotel at Powell and Geary Streets in San Francisco. It operates four restaurants, in addition to banquet and room service departments. All employ waiters, captains and bus persons. Victor’s is a French restaurant located in the St. Francis Tower. It offers only French service, i. e., food is brought from the kitchen on platters and served onto plates at the table. Service is performed by teams consisting of a captain, a waiter and a bus person. Orders are taken by the captain or the waiter. Waiters bring the food to the side of the table where the captain performs whatever carving, boning or flaming is necessary and then serves the plates, assisted by the waiter. Bus persons assist in serving water, bread and butter. Both waiters and bus persons set up and clear tables. Captains assist whenever needed. Each team is responsible for six or seven tables. The English Grill is an a la carte restaurant specializing in seafood. No French service is performed but waiters bone fish. The Dutch Kitchen is a coffee shop which offers simple a la carte items prepared in the kitchen and served directly to the patron by plate service only, no French service being involved. The Terrace Room offers similar items at lunch only. Food service at the latter three restaurants is performed by the waiters. Two other restaurants, the Medallion Room and the Penthouse, were closed in 1972 and 1978, respectively. The banquet department provides food and service for special functions. It maintains a staff of so-called steady extra (permanent) waiters. The number of functions and their size determines the number of waiters needed at any particular time. Generally one waiter is required for every 15 guests at lunch and for every ten guests at dinner. Extra banquet waiters are hired when needed by referral from the union hiring hall. French service has been performed at some banquets since about 1974; for the most part, however, banquet waiters only bring the served plates from the kitchen to the tables. The menu is fixed and orders are taken only for wine. Room service is provided from the regular room service menu. Orders are taken by cashiers and picked up by the waiter who then delivers the food from the kitchen. He assembles the necessary utensils and other items needed to fill the order and sets the table. With limited exceptions, the menu does not involve French service. Whenever a food service position opens up, the restaurant or department manager submits a requisition to the personnel department. Prior to 1976, managers occasionally hired directly without personnel department action. A notice of the vacancy is posted on the employee bulletin board and managers inform employees considered to be eligible for transfer or promotion, inviting them to apply. Unless the vacancy is filled by promotion or transfer from within, the personnel department notifies the union of the vacancy. Since 1977 requests for referrals have been sent to the union for all vacancies. Prior to that time requests were regularly sent only for extra or temporary positions. Vacancies for permanent jobs were referred to the union only intermittently and few referrals were received from the union. Depending on its needs at the time of a vacancy, the personnel department may also solicit applicants from state and private agencies and minority organizations, or from among persons whose applications are on file in the office. It also receives applications from walk-in applicants. An outside applicant must first make an appointment, usually by telephone, with the personnel department. Generally no appointment is made for persons seeking a position for which no opening then exists. The office is open to applicants from Monday through Thursday, 9 a.m. to noon. When the applicant appears for his appointment, he is asked to complete a form which calls for, among other things, a listing of prior jobs. Applications may be submitted even if there is no job opening, although at various times during the relevant period no applications were accepted when no vacancies existed. The St. Francis receives a total of between 5,000 and 7,500 applications a year, at least a dozen for each food server position vacancy. Applications are retained in an active file for six months. An informal log of applicants was maintained until 1977 when the interviewers began to maintain a more comprehensive record of applicants. After completing the application, outside applicants receive a screening interview by the personnel department which determines on the basis of factors such as prior experience and job stability whether to refer the applicant for a further interview with the manager of the department or restaurant having the opening. That manager selects the applicants he wishes to interview and makes the hiring decision based on the interviews. In the hiring of waiters, persons employed by the St. Francis, in particular bus persons, are given preference over outside applicants. Bus persons are evaluated on the basis of their work record for the St. Francis, including such factors as diligence, reliability, organizational and language ability and familiarity with hotel operations. They are not required to have had prior experience as a waiter but will often have had opportunities as bus persons to perform some of the duties of a waiter. Although there is no fixed time which a bus person must serve before being eligible for promotion, it generally runs from six months to two years, with on the job training continuing after promotion. Over the years, approximately one third of the permanent waiters have been promoted from bus persons. In addition, a number of permanent banquet waiters have been hired from among extra banquet waiters. Persons hired as waiters from the outside are required to have had some prior experience as a waiter. This requirement is not contained in any job description or other document and its implementation is left to the discretion of the individual restaurant or department managers who make the hiring decisions. Applicants for Victor’s must have had prior experience as a la carte waiters. In the English Grill, some dining room experience is desired. In the Dutch Kitchen, any food service experience is accepted. Banquet waiters are expected to have some French service experience. Room service requires a year’s experience as a food server. All applicants for waiter positions must be twenty-one years of age and present a neat and clean appearance. Other factors considered are job stability and attitude. Room service waiters must be willing to work flexible hours and part-time, and have reliable transportation. The St. Francis has no training program for new waiters. On the job training is provided by having new waiters work with more experienced waiters and through general supervision. Opinions differ among management over how long it takes before a newly hired waiter can be expected to be proficient. The time will vary with the person’s ability, and with the complexity of the duties required of him in the particular restaurant or department, and may range from several weeks to over a year. Findings of Fact Respecting the Hilton The Hilton also operates a large luxury hotel in downtown San Francisco. Its methods of operation are similar to those of the St. Francis. The Hilton operates three restaurants. The Gazebo is a coffee shop which employs about nine to ten waiters at breakfast and lunch and four or five at dinner, in addition to captains and bus persons. Henri’s Room at the Top serves a buffet lunch and a la carte dinner. It employs about eight waiters in addition to captains and bus persons. Prior to 1978, it served only buffet style and employed only captains and busboys. No French service is performed at either the Gazebo or Henri’s Room. The Chef’s Table is a first class restaurant serving a la carte lunches and dinner. It employs about five or six waiters, and captains and bus persons. French service is performed at dinner by the waiters and captains. The banquet department employs a permanent staff of approximately ten steady banquet waiters. In addition, it hires extra banquet waiters through the union hiring hall for particular functions. Banquets range from functions for a few persons to well over a thousand. Banquet waiters are not required to know French service or to be able to flame dishes. The room service department employs a permanent staff of about fourteen waiters. It provides food service in the hotel rooms at all hours. When a food server position becomes vacant, the restaurant or department manager notifies the personnel department which gives notice to the union. In filling the position, preference is given to bus persons and other employees of the Hilton desiring a promotion or transfer. Among outside applicants, those referred by the union are given preference, other things being equal. Until 1977, few union referrals were received for permanent positions. Since then the hiring hall has been reorganized and the Hilton now allows the union 72 hours to refer applicants before it fills a position from the outside. Notices of vacancy are posted in the hotel and at the hiring hall. Notice may also be given to various outside agencies, and at times advertisements are placed in newspapers and previously filed applications reviewed for prospects. All applicants must file an application which is maintained in an active file for one year. No log of applications was maintained until November, 1978. About 6,000 applications are filed annually. Applications are accepted at the personnel office only when a vacancy exists. After completing the application, the applicant is given a screening interview at the personnel office. That office may then refer him for a further interview to the department or restaurant manager who makes the hiring decision. Generally managers have required some unspecified amount of prior food service experience. The Hilton provides no training program; waiters are expected to become proficient in a matter of days or weeks. Findings of Fact Respecting the Union Both the St. Francis and Hilton at all relevant times were members of the Hotel Employers Association, an employers’ association which represented these and other hotels in collective bargaining. Through their membership in the association, the St. Francis and Hilton were at all relevant times parties to collective bargaining agreements covering waiters and others engaged in food service. Until 1974, the union representing waiters in San Francisco was the Waiters’ and Dairy Lunchmen’s Union Local No. 30. In that year, it merged into Dining Room Employees Union Local No. 9 and in 1975, that union merged into Hotel and Restaurant Employees and Bartenders Union Local No. 2, the present collective bargaining representative. These unions, at the respective times, were the collective bargaining representatives of waiters, bus persons and captains employed by the St. Francis and the Hilton. They will be referred to here collectively as “the union.” At all relevant times, the union operated a hiring hall in San Francisco for waiters, bus persons and captains, among others. The collective bargaining agreement required employers to apply to the union for referrals to fill any vacancy, and the union to refer applicants on a non-discriminatory basis. Section 3(g) provided for an adjustment board to hear any appeals based on a failure to comply with the referral provisions of the agreement. No appeals to the adjustment board were ever made. In the early 1970’s the union maintained a classification board which interviewed members and determined whether to rate them as experienced waiters. When requests for experienced a la carte waiters were received at the hiring hall, the dispatcher would select from among available members those whom he considered qualified for the position. This practice, as well as the classification board, was discontinued sometime after the filing of this action. There was in any event a shortage of experienced a la carte waiters and few were in the hiring hall available for referral. The hotels, unable to meet their needs for experienced waiters through the hiring hall, generally hired directly, subject only to the requirement that the new waiter be or become a union member. For the most part, referrals were limited to temporary extra banquet waiters for which the hotels depended on the hiring hall. Men were dispatched to these jobs on rotation designed to give each of them as nearly the same number of jobs as feasible. In the early 1970’s, about 150 members would generally be in the hiring hall available for some type of waiter work. In later years, the number increased to about 300. In 1977, Local 2 reorganized the operation of the hiring hall and undertook to persuade the hotels to make regular use of it. When the union referred a waiter to a hotel in response to a request for help, it issued a so-called work slip. The slip was taken by the waiter to the hotel and evidenced his good standing as a union member. When a hotel requested applicants for permanent positions, the union on occasion issued an interview slip. More frequently, the hotel would select the person it wished to hire for a particular permanent position from among applicants from various sources and, before hiring, send him to the union to obtain a work slip evidencing his good standing. When this procedure was followed, the notation “by request” was made on the slip. The union maintained copies of these slips in its records. However, there is only an informal and incomplete record of requests for referrals received by the union and none which reflects requests to which the union was unable to respond. Until 1972, the union had fewer than 100 black male members. In 1973 it had 127. In 1976, when membership information was computerized, 8,000 of its 18,000 members were coded as waiters (which included waitresses and bus persons). Of these 8,000 names, 5,343 (66%) were race coded. Blacks totaled 4.5%. The union did not encourage membership by those who did not hold jobs, generally urging a person to find a job before applying. Based on the available records, plaintiffs computed the rate at which black waiters were referred to jobs by the hiring hall as follows: UNION REFERRALS TO ST. FRANCIS HOTEL 1970 - 1977 Black Total % Blacks By Request 10 187 5.3 Others 9 106 8.5 All Referrals 19 293 6.5 UNION REFERRALS TO ALL EMPLOYERS 1970 - 1977 Black Total Blacks By Request 85 3020 2.8 Others 555 7177 7.7 All Referrals 640 10,197 6.3 UNION REFERRALS TO HILTON HOTEL 1974 - 1977 Black Total Blacks By Request 112 3.6 Others 53 9.4 All Referrals 165 5.4 UNION REFERRALS TO ALL EMPLOYERS 1974 - 1977 Black Total Blacks By Request 47 1396 3.4 Others 453 5418 8.4 All Referrals 500 6814 7.3 The union’s Equal Employment Opportunity (EEO 3) reports show referrals of black males for all jobs in proportion to total referrals for the respective periods of August and September as follows: August/September 1970 1971 1972 Total referrals 2551 2467 3550 Black males 263 252 320 10.3% 10.2% 9% Findings of Fact Respecting the Individual Claimants Leonard Whitman Whitman was an experienced a la carte waiter when he came to San Francisco in 1961. The union issued him an a la carte card and dispatched him to banquets at various hotels including the St. Francis. He held a variety of jobs, in and out of the food business, and in and out of San Francisco, until 1973. From time to time he worked as a banquet and part-time a la carte waiter at hotels and restaurants. During 1973, while working as an extra banquet waiter at the St. Francis, he asked the banquet manager for a permanent job on several occasions. He also claims to have filed a written application at the time but was never interviewed. In 1975, he again asked about a permanent position at the St. Francis. He was told that he would have to get clearance from the union first, but the union’s business agent told him that the hotel would have to call to request the clearance. The banquet manager, however, declined to call until he had obtained a work or referral slip from the union. During 1975, he also made oral job requests to the Hilton’s banquet manager but received no offer. Gary Dennis Dennis first became a waiter about 1975 when he began to be referred to extra banquet and club jobs by the union. Among other places, he worked banquets at the St. Francis and the Hilton. He made several attempts to file an application at the St. Francis in 1975 but was told there were no openings and was not given an application. He also made oral inquiries. In 1976 or 1977, he was referred by the union and was hired as an extra room service waiter by the St. Francis. In 1977, he filed a written application for a permanent waiter position with the St. Francis but was not interviewed. In 1978, he saw a position posted and inquired about it but received no response. Beginning in October 1975, Dennis repeatedly inquired at the Hilton about a permanent position but was never able to file an application. The union referred him to the Hilton as an extra banquet waiter between 1975 and 1978, but for a time the Hilton did not accept him because of a dispute between him and a captain. James Gay Gay is presently employed as the restaurant manager at the Double Tree Inn in Pacific Grove. He began to work as an a la carte waiter in 1961 and came to San Francisco in 1968. He worked as a banquet, extra and club a la carte waiter on referral by the union. He was unable to obtain union referrals to permanent jobs. Whenever he was referred to the St. Francis he asked about a permanent job. He may have filed a written application about 1969 or 1970 and possibly in 1973, but received no response. Frederick D. McDowell McDowell has been a waiter for nearly forty years. He came to San Francisco in 1964 and began to work as an extra banquet waiter out of the union hall in 1972. While working at the Hilton, he repeatedly inquired about a permanent job but received no interview. He did not file an application. It is not disputed that all four men were experienced waiters qualified for employment at either the St. Francis or the Hilton. Findings of Fact Respecting Class Members Thomas Wainwright Wainwright has been employed as a permanent banquet waiter by the Hilton since 1978. He has been a waiter for 23 years, in San Francisco since 1976. In 1976, he tried to apply at the St. Francis but was at first told by the guard that applications were not being accepted. After a number of attempts, he was able to file several applications but was never interviewed. He also inquired about a position while working as an extra banquet waiter at the St. Francis. He obtained his job at the Hilton in May, 1978, while working as an extra banquet waiter, when the banquet captain asked him if he would like a permanent job. Levoi St. Louis St. Louis has been employed as a room service waiter at the Fairmont Hotel. He has worked as a waiter since 1962 and moved to San Francisco in 1977. He filed an application with the St. Francis and was asked to come for an interview. When he arrived, his application was lost and he was told to come back next week. When he returned, he was told there were no openings. He never heard again from the St. Francis. He also filed an application with the Hilton and was interviewed by a maitre d’. He was told to come back and when he returned was told that his hiring had been approved. He was later told that, although the manager wanted to, he could not give him the job. Richard L. Mason Mason was employed as a permanent banquet waiter by the St. Francis in October, 1979. He had some experience as a food server before he came to San Francisco in 1975. He then became a banquet waiter at the Fairmont. He first applied at the St. Francis early in 1979. He was given a referral slip by the union and went to the personnel office where he was told he was too late and given an appointment for the next day. He returned the next day, was given an application after some difficulty over whether he had an appointment, and was interviewed by the personnel manager. When he called the next day, he was told the job was filled. In October, he called the personnel office again. He was interviewed by the banquet manager and, when he called the next day, was offered the job. Stephen Outlaw Outlaw has been a waiter in San Francisco since 1973. In 1972, he went to work as a bus person at Victor’s in the St. Francis. He was promoted to waiter in 1973, without previous waiter experience. While he was at Victor’s, French service was performed by the captain with the waiter serving the finished plates. He left Victor’s in 1977. When he returned and reapplied, there were no openings, but he was given a position as temporary room service waiter. In July, 1976, he filed an application with the Hilton but was not called. Aubrey Blackburn Blackburn worked as a waiter for nine years in Jamaica before coming to San Francisco in 1976. He applied three times to the Hilton during 1977. The first time, in response to an advertisement, he filed an application and was interviewed but heard nothing further. Twice thereafter he was referred by the union, filed applications, was interviewed but did not hear. While working as an extra waiter at the Hilton, he also asked about a permanent job but was told there were no openings. During 1977 and 1978, he also filled out applications at the St. Francis on three occasions, once as a walk-in, once on referral from the union, and .once at the banquet manager’s instance. He was once interviewed by the personnel office but did not hear again. IV. Discussion A. Statute of Limitations The St. Francis contends that the claims against it should be limited to a period of three years preceding the filing of the first amended and supplemental complaint on May 81, 1977. Its argument rests on a reading of the original 1973 complaint. Insofar as that complaint alleged a claim against the St. Francis, it contends, that claim arose solely out of the alleged wrongful discharge of McDowell. The claim of hiring discrimination, according to the St. Francis, was first raised in the 1978 second amended complaint, or, at the earliest, in the 1977 amended complaint. Examination of the fourth claim of the original 1973 complaint discloses that it was brought against the St. Francis by McDowell on behalf of a class of black persons qualified to be waiters who have been or are now employed by the St. Francis, have sought or are seeking such employment or have been or are discouraged from seeking such employment by discriminatory practices. The claim alleges that in addition to race-based harassment and intimidation leading to McDowell’s involuntary termination, the St. Francis “regularly engages in other similar acts, practices and policies denying equal employment opportunity to Plaintiffs and their class . . . ” Those acts are further described in the complaint’s preliminary statement, charging that “a system of racially discriminatory employment practices [is] maintained” by the union, the employer associations which bargain for the hotels and most of the hotels. It further charges each defendant with being a major participant in the system and liable for all of the transactions complained of. Discovery of the St. Francis’s employment practices, including hiring, commenced with the filing of the complaint. Accordingly, the addition in 1978 of specific hiring discrimination claims by plaintiffs Gay and Whitman, who were parties to the original complaint, did not expand the substantive scope of plaintiffs’ claims against the St. Francis. The recent claims are merely specifications of the general employment discrimination claim asserted against it in 1973. Inasmuch as the claims asserted in 1973 must be construed as including hiring discrimination claims of a class, the statute of limitations on them was tolled until the denial of the class action motion as to the St. Francis in August 1977. Those claims were reasserted by the filing of the second amended complaint in 1978. The statute has therefore not run on them. See American Pipe and Construction Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 766, 38 L.Ed.2d 713 (1974); see also United Air Lines v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977). In any event, the 1978 claims against the St. Francis are sufficiently closely related to the 1973 claims to come within the relation back doctrine under Rule 15(c), Fed.R. Civ.P. The St. Francis had adequate notice from the original pleading to avoid any prejudice by the later amendment. 6 Wright & Miller, Federal Practice and Procedure, § 1501, at 523-24, 526-27 (1971). The Hilton was first named as a defendant in the second amended complaint filed on February 8, 1978. By order of August 8, 1978, the Court held all claims against it arising more than three years prior to the filing of that complaint to be time barred. Cal.Civ.Proc.Code § 338, subd. 1; Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962). Accordingly, the claims are limited as to the St. Francis to those arising after March 28, 1970; as to the Hilton, to those arising after February 8, 1975. B. Liability of Defendant Hotels For Discriminatory Acts of the Union 1. Vicarious Liability Plaintiffs contend that even though they have settled with the union, they may still hold the hotels liable “for relying on the unions as a recruitment and hiring agent for their waiter employees.” Reliance is placed on the decision in Commonwealth of Pennsylvania v. Local 542, International Union of Operating Engineers, 469 F.Supp. 329 (E.D.Pa.1978), in which Judge Higginbotham reviewed and analyzed at length the law bearing on vicarious liability of employers for a union’s discriminatory operation of a hiring hall. The court concluded that, although the issue is not free from doubt in the light of other decisions, the employer may be held liable where it has in effect delegated to the union the hiring of its employees. That decision does not sustain plaintiffs’ argument here. In the first place, the record does not present a prima facie case of discriminatory treatment of blacks by the union. Overall union referrals of blacks ranged from about 6 to 10 percent during the period. But these numbers must be evaluated in light of black membership which in the early 1970’s was insignificant in numbers and, even after it grew, appears not to have exceeded 4.5 percent. Even taking into account the union’s use of subjective criteria in making referrals to permanent jobs, one cannot draw an inference of discriminatory treatment from the referral rates. Whether black membership in the union may, however, be accepted as a neutrally composed availability pool for comparison purposes depends on whether there is evidence supporting an inference of race-based exclusionary membership practices by the unions. There is evidence indicating that blacks experienced difficulties in securing food server positions in San Francisco in the early 1970’s. To the extent that was true, blacks would have been deterred from joining the union, and, being without jobs, would have been unwelcome. Whether the union’s past practice of discouraging membership by unemployed waiters had a sufficiently disparate impact to warrant a finding of discrimination, however, cannot be determined on this record, especially without the union as a party. Moreover, it cannot be found here that the hotels delegated to the union the selection of persons to be hired for permanent positions. While the collective bargaining agreement obligated the hotels to request and the union to make referrals for all vacancies, it specifically reserved the determination of suitability and competence to the employer. In practice, moreover, the union made few referrals and the hotels hired few permanent employees from among referrals. With the union unable to supply the needs of the hotels for experienced waiters, the hotels obtained applicants through their own efforts. By tacit consent the hiring hall provisions of the collective bargaining agreement largely fell into disuse with respect to permanent employees until the fall of 1977. 2. Conspiracy in Violation of 42 U.S.C. § 1985(3) Plaintiffs also contend that defendants violated 42 U.S.C. § 1985(3) by conspiring with the union to evade the hiring hall provisions of the agreement, thus permitting the hotels to engage in racially discriminatory hiring practices. The elements of a violation in the context of an employment discrimination case are stated in Bethel v. Jendoco Construction Co., 570 F.2d 1168, 1172-73 (3rd Cir. 1978), as follows: (1) a conspiracy; (2) for the purposes of depriving another of equal protection or equal privileges and immunities; (3) any act in furtherance of the conspiracy committed or caused to be committed by a conspirator; (4) whereby another . . . was injured in his or her person or property or deprived of a right or privilege as a United States citizen. See Griffin v. Breckenridge, 403 U.S. 88, 102-103, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971). Inasmuch as the record here, as discussed in the preceding section, does not warrant a finding of discrimination by the union, there is no basis for imposing conspirator liability on the hotels even if there were evidence of an unlawful agreement, which there is not. See Commonwealth of Pennsylvania v. Local 542, I.U.O.E., supra, 469 F.Supp. at 413-14; Croker v. Boeing Co., 437 F.Supp. 1138, 1178 (E.D.Pa.1977). 3. Violation of the Collective Bargaining Agreement Plaintiffs further contend that defendants are liable under 29 U.S.C. § 185 for violating the terms of the collective bargaining agreement. They argue first that by engaging in discriminatory hiring practices defendants violated Section 8 of the collective bargaining agreement which states: There shall be no discrimination against any employee on account of membership in, or activity on behalf of the Union or because of race, color, creed, sex, age, religion or national origin as defined by law. This provision, on its face, applies only to employees. Plaintiffs, however, are asserting hiring claims. They have offered no evidence that the parties to the collective bargaining agreement intended by this provision to confer rights and benefits on job applicants and, in the absence of such evidence, the Court will not make that assumption. Plaintiffs also contend that defendants’ failure to adhere to the exclusive hiring hall provisions of the contract is a violation. Section 3(b) provides, however, that “[i]n the event that the Union ... is not able to provide competent help suitable for the position [the employer] shall be at liberty to hire persons not referred by the Union.” There is no evidence that the union ever grieved the hotels’ use of the by request system. Indeed, there was undisputed testimony by union representatives of a shortage of qualified a la carte waiters and of the union’s inability to meet the hotels’ needs for permanent employees. It must be concluded that the union considered the by request system to be authorized under the contract. This interpretation was implicitly approved by the membership’s ratification of renewal agreements, with Section 3(b) unchanged in 1971 and 1975. C. Liability of Defendant Hotels on Individual Claims 1. Individual Claims Against the St. Francis Both Whitman and Gay claimed to have submitted written applications to the St. Francis in or before 1973; if they did, neither the applications nor evidence of the dates on which they were submitted is before the Court. Nor is there evidence permitting a finding as to the date of any oral application or request for employment by either of them or Dennis. It is therefore not possible for the Court to determine whether openings existed at the time when any of them applied. The hiring of waiters, both white and black, during each year of the period beginning 1971 and continuing to the present, establishes that openings did exist. But plaintiffs’ Exhibit 28, based on those applications which could be found during trial preparation, shows that no black applied at or about the time a non-black was hired. In one case, a black applicant other than a named plaintiff submitted an application about a week before a non-black was hired, in three cases, the time lapse was two to three weeks. In all other cases, it was one or more months. The elements of a prima facie case of race-based disparate treatment are the same, whether the action is maintained under 42 U.S.C. § 1981 or Title VII, 42 U.S.C. § 2000e et seq.: The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) (footnote omitted). If a prima facie case is proved, “[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. The evidence is insufficient to establish that at the time the individual plaintiffs may have applied, the St. Francis was seeking applicants for the positions they sought. There is evidence that applications were retained for a time and sporadically referred to when openings occurred soon after their submission. However, such reference was rare because it was considered time consuming and inefficient; not only were large numbers of applications received, but applicants frequently moved, were difficult to locate or had taken other jobs. Proof that a person’s application may have been on file when a later opening occurred, therefore, does not satisfy, as a practical matter, the requirements of a prima facie case of disparate treatment. Even if it did, it would be sufficiently rebutted by defendants’ legitimate and nondiscriminatory business reasons for not regularly considering retained applications. Cf. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576-78, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978). Inasmuch as these plaintiffs have failed to prove a prima facie case, their individual claims must be denied. 2. Individual Claims Against the Hilton There is no record that Whitman, McDowell or Dennis ever filed written applications with the Hilton. Nor does the evidence permit a determination of the date on which any of them may have made an oral application or request. Hence, the requisite finding cannot be made that at the specific time when they sought employment as waiters at the Hilton an opening existed and their claims must be rejected for the reasons discussed above. It is true, of course, that in the general period when the individual claimants were interested in employment at the Hilton, waiters were being hired. But plaintiffs’ own evidence shows that, with only a few exceptions, waiters were hired within a few days of the date of their application. No explanation was given why that should have been the practice; presumably, the need to fill a waiter vacancy promptly played a part. Whatever the reason, there is no evidence that any of the individual plaintiffs sought employment at any time when a position was open for which another person was hired. Moreover, plaintiffs’ Exhibit 30, based on applications still available, shows that other rejected black applicants had not applied at the same time as the successful non-black applicants. With only two exceptions, their applications had been submitted over a month before the successful application. There is no record of a black applicant submitting an application between the submission of the successful applicant’s applications and the date of his hiring, except in two cases of internal promotions. D. Liability of Defendant Hotels on the Class Claim 1. The Standard of Proof Under Section 1981 At the threshold lies the question of the quantum of proof required of plaintiffs. This case is brought under Section 1981, not Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). Plaintiffs chose to present it as a case of intentional racial discrimination, contending that their proof of disparate impact on blacks is sufficient to support an inference of purposeful disparate treatment. If this were so, this Court would not reach the question whether Section 1981 requires that the defendants’ intent to discriminate be proved. However, because plaintiffs’ proof may not support such an inference, the Court must address this issue. Until the decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), it was generally assumed that the same standard of proof applied under Section 1981 and Title VII. Employment practices having a disparate racial impact were held unlawful, regardless of intent, unless justified as a business necessity. See Boston Chapter, NAACP Inc. v. Beecher, 504 F.2d 1017, 1021 (1st Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975); Carter v. Gallagher, 452 F.2d 315, 323 (8th Cir. 1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972). In Washington v. Davis, plaintiffs alleged, among others, a claim under Section 1981 that the District of Columbia’s examination for police applicants violated the Fifth Amendment. The examination was alleged to have resulted in the exclusion of disproportionately high numbers of black applicants. There was no allegation of intentional discrimination. The District Court granted summary judgment for defendants on this claim; the Court of Appeals reversed; and the Supreme Court, in turn, reversed the judgment of the Court of Appeals. The Court held, in part, that, in the absence of a racially discriminatory purpose, official action does not violate the equal protection guarantees of the Fifth and Fourteenth Amendments simply because it has a racially disproportionate impact. Washington v. Davis did not decide whether in actions under Section 1981 plaintiffs must prove discriminatory purpose. The Court’s discussion focused on proof requirements under the Fifth and Fourteenth Amendments; Section 1981 was not mentioned in this context. The Court’s order that summary judgment be granted for defendants has nevertheless been taken to imply that Section 1981 requires proof of intent to discriminate. See, e. g., Arnold v. Ballard, 448 F.Supp. 1025, 1027-28 (N.D. Ohio 1978). However, such a reading of the opinion is not required; summary judgment on the Section 1981 claim is adequately supported by the Court’s additional holding that the defendant had proved the examination to be job related. Moreover, the focus on the constitutional flaw in the decision under review may have been dictated by the Court’s action in raising the intent issue sua sponte. The conclusion that Washington v. Davis left open the issue under Section 1981 was also reached by the entire panel in Davis v. County of Los Angeles, 566 F.2d 1334, 1340, 1350 n.10 (9th Cir. 1977), vacated as moot, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). Indeed, Justice Powell observed, in dissenting from the holding that Davis v. County of Los Angeles had become moot, that the case presented “the important question — heretofore unresolved by this Court — whether cases brought under 42 U.S.C. § 1981, like those brought directly under the Fourteenth Amendment, require proof of racially discriminatory intent or purpose.” 440 U.S. at 637, 99 S.Ct. at 1386. In Davis v. County of Los Angeles, supra, the majority of the Court of Appeals panel held that proof of liability under Section 1981 should track the requirements of Title VII — that is, that no proof of intent is required. 566 F.2d at 1340. In vacating that case as moot, however, the Supreme Court expressly noted that its action deprived the opinion of the Court of Appeals of precedential effect. 440 U.S. at 634 n.6, 99 S.Ct. at 1384 n.6. Thus, the question must be considered as open in the Ninth Circuit. Its disposition turns on several factors discussed in the opinions in Davis v. County of Los Angeles and in other recent lower court decisions. The legislative history of Section 1981 shows that although it rests in part upon the Thirteenth Amendment, its origin was closely tied to the Fourteenth Amendment. A number of courts have relied on this connection in finding the same intent requirement as under the Fourteenth Amendment. The legislative history also shows that Congress in enacting the first precurser of Section 1981 meant it “to deal with the most egregious forms of reactionary white conduct; . . . not . to fashion an evidentiary presumption designed to root out more subtle forms of discrimination.” Note, Racially Disproportionate Impact of Facially Neutral Practices — What Approach under 42 U.S.C. Section 1981 and 19821, 1977 Duke L.J. 1267, 1279-80. Legislative history is not conclusive; the present day interpretation of Section 1981 is not rigidly bound by “the sentiments of the Reconstruction Congress.” Runyon v. McCrary, 427 U.S. 160, 191, 96 S.Ct. 2586, 2604, 49 L.Ed.2d 415 (1976) (Stevens, J., concurring). However, the policy concerns which led the Supreme Court in Washington v. Davis to hold that the Fourteenth Amendment requires proof of intent support a similar interpretation of Section 1981. The Court there thought if appropriate to “await legislative prescription” before extending to new areas the rule that facially neutral action is illegal if in practice it benefits or burdens one race more than another. Washington v. Davis, 426 U.S. at 248, 96 S.Ct. at 2051. Title VII of the Civil Rights Act of 1964 was such a legislative prescription in the field of employment. Title VII proscribes conduct based on proof of its racially discriminatory impact alone, Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971), but it does so in the context of a procedural scheme which subjects claims to a prior administrative screening investigation and a uniform short statute of limitations. Section 1981 cases may be filed without prior screening and within the varying time limits provided by state laws. The absence of mechanisms to control the filing of what may be baseless claims, or claims which have been rendered more difficult to defend by the passage of time warrants, as a matter of policy, judicial adherence to a higher standard of proof under Section 1981, at least until further legislative action. Moreover, Section 1981 applies to a whole range of public and private contractual relationships other than employment. As discussed above, the legislative history of Section 1981 lacks any indication of intent to outlaw conduct on the basis of racially disparate impact alone. Section 1981 therefore does not supply the “legislative prescription” that the Supreme Court regarded as necessary before expanding the rule into new areas. These considerations lead the Court to agree with the majority of courts that have decided the issue that proof .of discriminatory intent is required in actions brought under Section 1981. This conclusion has important implications, discussed below, regarding the requisites of a prima facie case based, as in this action, primarily on statistics. 2. Elements of the Prima Facie Case Plaintiffs contend that the defendant hotels engaged in a pattern or practice of purposeful discrimination against black male applicants for positions as waiters. The record is devoid of any direct evidence of intent to discriminate. It does, however, reflect a series of employment practices which may have tended to exclude blacks. The record shows that both defendants preferred to promote or transfer from within rather than to hire from the outside. Both had experience requirements which, however, were vague, unwritten, and left entirely to the discretion of the various room or service managers to administer. Aside from experience, hiring criteria used were subjective, turning on such matters as appearance, demeanor and job stability. Until recently, the hotels hired permanent waiters largely without resort to the union hiring hall. Thus there was no established procedure for giving public notice of all job openings. The defendants also had in effect rules and practices which caused some prospective applicants to encounter difficulties in their attempts to make application; their employment offices were open to the public only for limited periods, applications were not always accepted, and there was no regular procedure for interviewing all applicants. Finally, some apparently qualified black applicants were rejected without explanation. The aggregate impact of these practices might well have been felt more severely by blacks seeking waiter positions than by whites. Whether it is sufficient to constitute a prima facie case of purposeful discrimination turns on the analysis of defendants’ hiring and work force statistics in the following sections. Teamsters v. United States, 431 U.S. 324, 339, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977), established that purposeful employment discrimination may be proved by statistical evidence. The Court said: Statistics showing racial or ethnic imbalance are probative in a case such as this one only because such imbalance is often a telltale sign of purposeful discrimination; absent 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 long-lasting and gross disparity between the composition of a work force and that of the general population thus may be significant . 431 U.S. at 340 n.20, 97 S.Ct. at 1857 n.20. The Court agreed that the government had made out a prima facie case under Title VII by proving, in addition to individual instances of discrimination, that in communities where 10 to 50 percent of the population was black, defendant employed not a single black line driver before the suit was commenced. In Hazelwood School Dis trict v. United States, 433 U.S. 299, 307, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977), also a Title VII case, the Court again stated: Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination. Statistical evidence of racial disparity may therefore be probative of purposeful discrimination. See Washington v. Davis, 426 U.S. at 242, 96 S.Ct. at 2048; Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 2295 n.23, 60 L.Ed.2d 870 (1979). Justice Stevens, concurring in Washington v. Davis, explained the evidentiary connection as follows: “Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds.” Id., 426 U.S. at 253, 96 S.Ct. at 2054. He added that “the line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court’s opinion might assume.” Id., 426 U.S. at 254, 96 S.Ct. at 2054. While perhaps not bright, the line between impact and intent is critical in this case. If the intent requirement is to have meaning in a statistics-based case, the evidence must show more than that the defendant could or should have known that its actions had a disparate impact on blacks. As the Court said in Personnel Administrator of Massachusetts v. Feeney, supra, 99 S.Ct. at 2296 “ ‘[discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences, [citation omitted] It implies that the decisionmaker . . . selected ... a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” (footnotes omitted). Feeney upheld a veterans’ preference law against a claim of unconstitutional sex discrimination. The Court found that where adverse impact was an unavoidable consequence of a legitimate legislative policy untainted by evidence of a prohibited purpose, no inference of discriminatory intent arose. Id., 99 S.Ct. at 2296 n.25. Whether such an inference may be drawn from evidence of disparate impact turns on a sensitive and practical evaluation of the full factual context. Id., 99 S.Ct. at 2296 n.24. In cases of employment discrimination, where proof of intent rests on statistical evidence of impact, that impact must be “longlasting and gross” to sustain the inference that the defendant acted for the purpose of creating or maintaining it. Teamsters, supra, 431 U.S. at 340, n.20, 97 S.Ct. at 1856 n.20. Another feature of statistical evidence that must be borne in mind is that, contrary to the illusion of certainty which it may create, it does not afford a mathematically precise basis for decision. Hazelwood recognizes this fact, directing the district court to evaluate not simply a single set of employment statistics but the entire range of available data, including work force, applicant flow and hiring rates. 433 U.S. at 308 n.13, 97 S.Ct. at 2742 n.13. Inferences drawn from the statistical proof must, moreover, be tempered by the other evidence which brings “the cold numbers convincingly to life.” Teamsters, 431 U.S. at 339, 97 S.Ct. at 1856. As the Supreme Court noted in Hazelwood, quoting from Teamsters, “[Statistics . . . come in infinite variety . . . [T]heir usefulness depends on all of the surrounding facts and circumstances.” 433 U.S. at 312, 97 S.Ct. at 2744. a. The Relevant Labor Market The statistical analysis must begin with a determination of the pool of individuals available and qualified to become waiters for the defendant hotels and the percentage of black males in that pool. Whether or not an inference of discriminatory impact and purpose arises from the percentage of blacks hired or promoted by the defendants depends on the choice of the proper labor market for statistical comparison. See Hazelwood, supra, 433 U.S. at 311 n.17, 97 S.Ct. at 2743 n.17. The parties are in fundamental disagreement on this issue, and have presented largely contradictory expert opinions. In the opinion of plaintiffs’ expert, Dr. John H. Pencavel, the relative availability of black waiters should be measured by reference to the percentage of black males, 21 to 64 years of age, living in the San Francisco/Oakland Standard Metropolitan Statistical Area ‘(SMSA), weighted in accordance with the frequency of applications from within and without San Francisco, and earning less than the 1975 median earnings of permanent banquet waiters at defendant hotels, adjusted to 1970 dollars. Applying these factors, Dr. Pencavel arrived at a black availability range of 15.1% to 17.9%, varying with the median earnings at the two hotels. Each of these factors will be discussed in the following sections, i. The relevant geographic area Because the percentage of black residents varies among the counties in the SMSA, the percentage of blacks in the relevant labor market will vary depending on the geographic definition of the market. Dr. Pencavel chose to use data from the San Francisco/Oakland SMSA, weighted in accordance with the ratio of applications for all waiter positions received from within and without San Francisco, respectively. Of all waiter applications which were retained by the St. Francis and the Hilton, approximately 85 percent came from residents of the City and County of San Francisco, 13% came from other counties in the SMSA, and 2% came from outside the SMSA. Thus, Dr. Pencavel weighted the San Francisco data by a factor of 85/98 and the data from other counties in the SMSA by 13/98. Dr. Pencavel’s approach is sound. It is reasonable to estimate the geographic composition of the available labor pool by reference to the distribution of residence of the actual applicants. Plaintiffs concede that the applications Dr. Pencavel relied on do not document the residence of all actual applicants. Not all written applications were retained, nor were all applications in writing. However, there is no reason to suppose that the residential distribution of the group whose applications were retained does not approximate that of the actual applicant pool as a whole. Defendants contend that weighting results in double-counting. That would be true if San Francisco figures were averaged with SMSA figures. However, the procedure used by Dr. Pencavel was to back out the San Francisco figures from the SMSA aggregates before applying the weighting factors. This method avoids double counting. Defendants’ expert, Dr. Seymour L. Wolfbein, argued that the judgment of the Bureau of the Census to aggregate the counties of the SMSA as an economically integrated unit should be accepted without modification. This judgment, however, does not preclude an attempt to arrive at a more precise measure of the percentage of blacks in the work force available for the particular jobs at issue here. Refinement of SMSA data by weighting is therefore not inconsistent with their design. Inasmuch as 85% of waiter applica