in a truly comparable manner on the non-oral tests. Although the Court has the total oral and non-oral scores for all applicants in the August, 1965 and August, 1966 classes, the detailed scoring is only available as to the Negro candidates and the successful white candidates, and as between those two groups there is not a sufficient identity of performance on the non-oral side of the tests, when considered in their details rather than as total grade, to make a meaningful comparison. If this record contained evidence that a significant number of whites received substantially higher oral grades than did the Negro applicants despite the fact that the two groups performed in a reasonably comparable fashion on the non-oral tests, that would provide evidence of discrimination. The Court has found no such proof in the record."

Appellate issues

Appellee took no cross-appeal and appellant presents only two issues:

"(1) Whether the district court erred in ruling that, despite their traditional practices of denying membership and referral to Negroes because of their race, defendants may now follow referral and admissions practices which, although racially neutral on their face, perpetuate the effects of past discrimination and result in the present and future denial of employment opportunities to Negroes which are equal to their similarly qualified white contemporaries.

"(2) Whether, having found that defendants engaged in unlawful racially discriminatory employment practices up to the eve of this lawsuit, the district court erred in failing to grant an yspecific relief, and in refusing to retain jurisdiction and to require the submission of reports and maintenance of records to insure compliance with the law."

We answer both of these questions in the affirmative.

In addition to relying strongly upon the now overruled District Court opinion in the Sheet Metal Workers case, supra, the District Judge relied heavily upon a provision in the Civil Rights Act of 1964:

"(j) Preferential treatment not to be granted on account of existing number or percentage imbalance

"Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed, in any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area." 42 U.S.C. § 2000-2 (j) (1964).

[SECTION INTERPRETED]

We believe this section prohibits interpreting the statute to require "preferential treatment" solely because of an imbalance in racial employment existing at the effective date of the Act. But we also believe that its prohibition must be read in conjunction with the fundamental purposes of the statute (see 42 U.S.C. § 2000e-2(c) (1964) above) and in conjunction with the section providing for affirmative relief:

"§ 2000e-6. Civil actions by the Attorney General.

**(a) Complaint.

"Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts pertaining to such pattern or practice, and (3) requesting such relief. including an application for a permanent or temporary injunction restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described." 42 U.S.C. § 2000e-6 (1964). (Emphasis added.)

When the stated purposes of the Act and the broad affirmative relief authorization above are read in context with § 2000e-2 (j), we believe that section cannot be construed as a ban on affirmative relief against continuation of effects of past. discrimination resulting from present practices (neutral on their face) which have the practical effect of continuing past injustices.

Any other interpretation would allow complete nullification of the stated purposes of the Civil Rights Act of 1964. This could result from adoption of devices such as a limitation of new apprentices to relatives of the all-white membership of a union. Int'l Ass'n of Heat & Frost Insulators & Asbestos Wkrs., Local 53 v. Vogler, 407 F. 2d 1047, 1 FEP Cases 577, 70 LRRM 2257 (5th Cir. 1969), or limitation of membership to persons who had previous work experience under union contract, while such experience was racially limited to whites, United Papermakers & Paperworkers, Local 189 v. United States, 416 F.2d 980, 1 FEP Cases 875, 71 LRRM 3070 (5th Cir. 1969), or administration of qualification examinations which had no objective standards and which produced unexplained discriminatory results. United States v. Sheet Metal Workers Int'l Ass'n, Local 36. 416 F.2d 123, 2 FEP Cases 127 (8th Cir. 1969).

[DISTRICT COURT]

While the District Judge did not in theory reject all affirmative relief, he did reject it in this case. In addition, he squarely refused to require Local 38 to take appropriate steps to make known to eligible Negroes in the Cleveland area that its recognized pre-Act discriminatory practices in membership, in work referral, and in admittance to apprentice training had ended.

Dealing with a record containing findings of pre-Act discrimination only, the Eighth Circuit said in the Sheet Metal Workers case:

"It is equally clear that Local 36 did not permit Negroes to take a journeyman's examination, to join the Local, or to use its hiring hall prior to 1967. The Local built the discriminatory practices into its employment referral system by negotiating a new system of referring persons for employment by priority groups, and by giving preference to those who had an opportunity to gain experience under the collective bargaining agreement and in the industry prior to its effective date.

"In our view, neither Local can be permitted to continue to operate its employment referral systems without change. Both plans effectively operate to deprive qualified Negroes of an equal opportunity for employment as journeymen electricians or as sheet metal workers. Because the plans carry forward the effects of former discriminatory practices, they result in present and future discrimination and are violative of Title VII of the Act.15

"We recognize that each of the cases cited in n. 15 to support our position can be distinguished on the ground that in each case, a number of known members of a minority group had been discriminated against after the passage of the Civil Rights Act. Here, we do not have such evidence, but we do not believe that it is necessary. The record does show that qualified Negro tradesmen have been and continue to be residents of the area. It further shows that they were acutely aware of the Locals' policies toward minority groups. It is also clear that they knew that even if they were permitted to use the referral system and become members of the union, they would have to work for at least a year before they could move into a priority group which would assure them reasonably full employment. In the light of this knowledge, it is unreasonable to expect that any

15 "Local 189. United Papermakers and Paperworkers, AFL-CIO, United Papermakers and Paperworkers, AFL-CIO, CLC ; and Crown Zellerbach Corporation v. United States of America, 416 F. 2d 980, 1 FEP Cases 875, 71 LRRM 3070 (5th Cir. 1969), aff'g. United States by Clark v. Local 189. United Papermakers and Paperworkers, 282 F. Supp. 39. 1 FEP Cases 820, 67 LRRM 2912 (D.C. La. 1968); Local 53 of Int. Ass'n of Heat & Frost I. & A. Wkrs. v. Vogler, 407 F. 2d 1047. 1 FEP Cases 577, 70 LRRM 2257 (5th Cir. 1969), aff'g Vogler v. McCarty, Inc., 294 F. Supp. 368, 1 FEP Cases 197. 65 LRRM 2554 (E.D. La. 1968); N.L.R.B. v. Local 269, Internat'l Bro. of Elec. Wkrs., 357 F. 2d 51. 61 LRRM 2371 (3rd Cir. 1966); Dobbins v. Local 212. International Bro, of Elec. Wkrs, 292 F. Supp. 413. 1 FEP Cases 387, 69 LRRM 2313 (S.D. Ohio 1968): Quarles v. Philip Morris Incorporated, 279 F. Supp. 505, 1 FEP Cases 260, 67 LRRM 2098 (E.D. Va. 1968), Contra. Griggs v. Duke Power Company, 292 F. Supp. 243, 1 FEP Cases 422, 69 LRRM 2389 (M.D.N.T. 1968): U.S. v. International Brotherhood of Electrical Workers Local 39, 1 FEP Cases 735, 71 LRRM 2087 (1969); U.S. v. International Brotherhood of Electrical Workers, Local 38, 1 FEP Cases 673, 70 LRRM 3019 (1969). The Dobbins Court, at 445, said:

"A policy of giving priority in work referral to persons who have experience under the Local's Collective Bargaining Agreement is discriminatory when competent [Negroes] have previously been denied the opportunity to work under the referral agreement by reason of their race. . . .

Negro tradesman working for a Negro contractor or a nonconstruction white employer would seek to use the referral systems or to join either Local." United States v. Sheet Metal Workers Int'l Ass'n, Local 36, 416 F.2d 123, 131-32, 2 FEP Cases 127 (8th Cir. 1969).

[POST-ACT DISCRIMINATION]

It is important, however, to note that the record of this case shows two years of discriminatory practices after the effective date of the Act.

As of the date of the complaint in this case, defendant union had 1,318 members, of whom two were Negroes. On that date it had 255 apprentices of whom three were Negroes. And in the preceding year it had referred 3,487 persons for work in the electrical trades through its hiring hall, of whom only two were Negroes.

The District Judge found that the evidence supported the government's claims of discriminatory practices extending up to and beyond the date of the filing of this complaint.

While he limited specific findings of discrimination to the union's referral practices, these practices controlled absolutely who got jobs in the organized electrical trades in the Cleveland area. The record discloses that 75% of all electrical construction work in the Cleveland area was done under Local 38's contract.

These facts (and the above-stated difference of interpretation of 2000e-2(j)) require vacation of the pro forma judgment entered by the District Judge and remand for consideration of appropriate affirmative relief. We feel that this view represents the great weight of authority among the federal courts which have as yet dealt with this type of problem. United States v. Sheet Metal Workers Int'l Ass'n, Local 36, 416 F.2d 123, 2 FEP Cases 127 (8th Cir. 1969), United Papermakers & Paperworkers, Local 189 v. United States, 416 F.2d 980, 1 FEP Cases 875, 71 LRRM 3070 (5th Cir. 1969); United States v. Hayes Int'l Corp., 415 F.2d 1038, 2 FEP Cases 67 (5th Cir. 1969); Int'l Ass'n of Heat & Frost Insulators & Asbestos Wkrs., Local 53 v. Vogler, 407 F.2d 1047, 1 FEP Cases 572, 70 LRRM 2257 (5th Cir. 1969); Dobbins v. IBEW, Local 212, 292 F.Supp. 413, 1 FEP Cases 387, 69 LRRM 2313 (S.D. Ohio 1968); Quarles v. Philip Morris, Inc., 279 F.Supp. 505, 1 FEP Cases 260. 67 LRRM 2098 (E.D. Va. 1968). See also Griggs v. Duke Power Co. 420 F.2d 125, 2 FEP Cases (4th Cir. 1970).

[OTHER FACTOR]

We do not, however, wish to ignore the other factor which played an important-perhaps decisive-role in the District Judge's decision concerning affirmative relief in this case.

As we have indicated, after this suit was filed by the Attorney General, but before trial, a new administration was elected to office in Local 38. The District Judge found that the new officers favor voluntary compliance with the Civil Rights Act of 1964 and have taken steps to bring past discriminatory practices to an end. These facts, however, do not in our opinion warrant the District Court's refusal to retain jurisdiction of this case or its refusal of affirmative relief. The record of compliance is very brief-particularly as compared to the long record of discrimination-and even that record has been written under the impact of this litigation. Cypress v. Newport News Gen'l & Nonsectarian Hosp. Ass'n. 375 F. 2d 648 (4th Cir. 1967). Assuming, as the District Judge plainly did, and as we do, that the new leadership is in utter good faith, it has no mean task ahead in eliminating ingrained discriminatory practices of past decades. In many respects a more specific court order, plus retention of jurisdiction, might serve to support the stated objectives of the new administration of Local 38. And, in any event, such relief is authorized by the Act and called for in this record. United States v. Hayes Int'l Corp., 415 F. 2d 1038, 2 FEP Cases 67 (5th Cir. 1969).

We do not at this point seek to write the order or even to specify an outline for it. The District Court may find appropriate the forms of relief granted in the Sheet Metal Workers case, supra, and in the Local 189 case, supra. See also Dobbins v. IBEW, Local 212, 292 F. Supp. 413, 1 FEP Cases 387, 69 LRRM 2313 (S.D. Ohio 1968). Or if the District Judge's hopes (and ours) prove well-founded, it may be possible for these previously adversary parties to agree upon and stipulate to the measures needed to achieve defendants' full compliance with the Civil Rights Act of 1964.

The judgment of the District Court is vacated and this case is reversed and remanded for further proceedings consistent with this opinion.

In the

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 24865

LOCAL 53 OF THE INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, APPELLANT

V.

PAUL VOGLER, JR., ET AL., APPELLEES

Appeal from the United States District Court for the Eastern District of Louisiana

(January 15, 1969)

Before DYER and SIMPSON, Circuit Judges, and CABOT, District Judge

DYER, Circuit Judge: Local 53 appeals from a temporary injunction entered against it, which prohibits the union's admitted discrimination in acts and policies of membership, referrals for employment, and training, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e. We affirm.

The facts are relatively undisputed. Local 53 is a labor organization which is the exclusive representation in negotiaitng terms and conditions of employment for those engaged in the asbestos and insulation trade in southeastern Louisiana, including the metropolitan areas of New Orleans and Baton Rouge and some counties of Mississippi. Local 53 effectively controls empoyment and training opportunities in the asbestos and insulation trade in the area. It is by contract the exclusive bargaining agent for all asbestos workers employed by every major firm in that territory, and, in practice although not by contract, it operates a referral system at the union office through which it either furnishes or approves each journeyman and helper hired by asbestos contractors.1

In order to be admitted into Local 53 at the top rating of journeyman mechanic, the union requires that the applicant be a physically fit citizen under thirty years of age, obtain written recommendations from three members, and obtain the approval of a majority of the member voting by secret ballot at a union meeting. Additionally, the applicant must have had four years of experience as an "improver” or “helper” member of the union, but improver membership in the union is restricted to sons or close relatives living in the households of members." Aside from the citizenship, age and physical fitness requirements, the union has imposed no qualifications or standards related to the trade upon persons seeking membership or referral for work.

Despite its dominance of employment and training opportunities in the asbestos trade and an increasing industry need for insulation tradesmen, Local 53 inten

1 Generally, workmen are sent to employers by the defendant [Local 53] in accordance with the fluctuating needs of the contractors in the area. When workmen are not available through the Union, contractors solicit men on their own but must send them to the Union before placing them on the job. Finding of Fact No. 3.

It is the policy of the defendant Local 53 to restrict its membership to the sons or close relatives of other members. Local 53 does not admit new men as mechanics, regardless of their qualifications. In the past four years the defendant has accepted 72 first-year improvers as members. Sixty-nine of these are sons or stepsons of members; each of the other three is a nephew who was raised by a member as his son. Only such sons are even considered for membership. Finding of Fact No. 4(f).

tionally limited membership until by the time this action was instituted union members constituted less than one-fourth of the labor force in the industry. In the two years prior to the commencement of this suit the industry's labor needs had tripled, yet in the four years prior to that time, Local 53 admitted but 72 improver members and no new mechanic members.' By the time of this suit, out of the 1,200 men insulation tradesman labor force of those contractors required by contract to recognize Local 53 as the exclusive bargaining agent for such employees, only 282, including 64 improvers, were actually members of Local 53.

In pursuing its exclusionary and nepotistic policies, Local 53 engaged in a pattern and practice of discrimination on the basis of race and national origin both in membership and referrals. It was found to be Local 53's practice to refer white persons of limited experience and white journeymen of other trade unions as mechanic asbestos workers. It was also found to be its practice to refuse to consider negroes or Mexican-Americans for membership and to refuse to refer negroes for employment or to accept negroes for referral for employment. This policy and various acts of discrimination, both prior to and after the effective date of the Civil Rights Act of 1964,5 were admitted at trial and on this appeal." On February 25, 1966, March 9, 1966, and April 9, 1966, Paul M. Vogler, Jr., Juan Galaviz and Casimere Joseph, III, respectively filed complaints with the Equal Employment Opportunity Commission alleging that they had been denied membership in and referral for work by Local 53 in violation of Title VII of the Civil Rights Act of 1964. On November 19, 1966, the EEOC found reasonable cause to believe that the violations had occurred but was unable to secure voluntary union compliance with the Act.

On November 25, 1966, Vogler, Galaviz and Joseph instituted this action in the District Court and on the same day filed a motion for a temporary restraining order, entered that day by the court, and a preliminary injunction. On December 15, 1966, the United States filed a complaint under 42 U.S.C.A. § 2000e-5 (a) and (b) alleging a pattern or practice of discrimination and a motion for a preliminary injunction. The two cases were consolidated, and following an evidentiary hearing the District Court on May 31, 1967, entered an injunction. The injunction prohibits discrimination in excluding persons from union membership or referring persons for work; prohibits use of members' endorsements, family relationship or elections as criteria for membership; ordered that four individuals be admitted to membership and nine others be referred for work; ordered the development of objective membership criteria and prohibited new members other than the four until developed; and ordered continuation of chronological referrals for work, with alternating white and negro referrals until objective membership critería are developed.

The union argues that the preliminary injunction has retrospective effect and penalizes the union for pre-Act discriminatory policies in violation of the intent of Congress; that the injunction violates the Act's prohibitions against preferential racial treatment or establishing a quota system to correct racial imbalance; that the injunction is inconsistent with other Congressional labor legislation; and that the order exceeds the District Court's discretion by interfering with the scheme of the Civil Rights Act. The union also argues that despite its emphasis

3 "In July of 1965, men affiliated with Local 53 worked a total of 58.690 hours: by November of 1966. that number had reached 160,548." Finding of Fact No. 4 (c). 4 See note 2 supra.

5 Local 53 has more than 100 members and is engaged in the representation of employees of emplovers in an industry affecting commerce. Thus it was amenable to the Act on July 2 1965. See 42 U.S.C.A. & 2000e-(e).

Brief of Annellant Local 53: At the time of the filing of this suit in November. 1966. there was [sic] on file with the union in excess of 200 applications for membership by white mechanic [sic] and improvers, some of which had been pending for more than ten years. In November and December. 1965. and January and February, 1966. seven (7) negroes applied for referral for employment as improvers or helpers. All were denied referral admittedly because they were negroes. Three (3) negroes qualified members of the Plasterers Union applied for referral for employment as mechanics in September. 1966, and were refused referral because they were negroes. At the time, the three individuals being members of the Plasterers Union were not seeking membership but only job referrals. Annellant . . . acknowledges the existence of evidence warranting the propriety of an order prohibiting in forceful terms discrimination on the basis of race in referrals for employment and in admission to membershin

7 The restraining order enioined Local 53 from voting on any new members. tabulating any votes upon new members, or accepting any new members. The union had a meeting scheduled for that night at which 20 members were to be admitted from a ballot of 257 names, including the names of two negroes.