Local 28 of the Sheet Metal Workers’ International Association v. Equal Employment Opportunity Commission

PETITIONER:Local 28 of the Sheet Metal Workers’ International Association
RESPONDENT:Equal Employment Opportunity Commission
LOCATION:Court in Ouachita County

DOCKET NO.: 84-1656
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 478 US 421 (1986)
ARGUED: Feb 25, 1986
DECIDED: Jul 02, 1986

ADVOCATES:
Martin R. Gold – Argued the cause for the petitioners
O. Peter Sherwood – Argued the cause for the respondents

Facts of the case

In 1975, a federal district court found the Local 28 of the Sheet Metal Workers Union guilty of racial discrimination in violation of Title VII of the Civil Rights Act of 1964. The court established a 29 percent minority membership goal and ordered the union to implement procedures to meet the goal. In 1982 and 1983, the union was found guilty of civil contempt for disobeying the court orders. The court then established a 29.23 percent nonwhite membership goal to be met by August 1987.

Question

Did provisions of Title VII of the Civil Rights Act of 1964 empower courts to order race-conscious membership quotas?

Martin R. Gold:

They are going to take 100 people, they are going to take 55 whites and 45 non-whites.

O. Peter Sherwood:

It required that they meet the 29 percent.

Yes, but the 55 whites who they believe are the best qualified.

O. Peter Sherwood:

It currently says they ought to meet the 29 percent by the middle of 1986.

Martin R. Gold:

Are the best qualified.

O. Peter Sherwood:

At one point in the past it said that they were to meet it by the middle of 1981, and it was then changed to 1982 because of conditions in the industry.

And similarly with the blacks.

O. Peter Sherwood:

And if there is evidence in the record–

Martin R. Gold:

Yes.

Well, if the union had complied with all of the acts, all of the orders that they had been held in contempt for disobeying, would there have been any greater chance of achieving the goal or quota or whatever you call it?

But they don’t compare the two lists.

O. Peter Sherwood:

–I cannot say that they would have achieved it.

Martin R. Gold:

They don’t compare the two lists.

O. Peter Sherwood:

I can say with certainty that they would have been much further along the road, and it is for foot-dragging that they were held in contempt, not for not reaching the goal.

Martin R. Gold:

If they compared the two lists, it would not come out 55-45.

O. Peter Sherwood:

It is important, too, to see what the District Court did here.

This is to get into the apprentice program.

O. Peter Sherwood:

The District Court ordered the union to not artificially close down the size of the apprenticeship program, and it is in order to provide greater opportunities for minorities to enter into the trade, and also to limit the impact of the court’s order on third parties who are seeking to enter the–

Martin R. Gold:

That’s right, which everybody acknowledges is today by far the major avenue into this union.

Is the 29 percent union membership or part of the apprenticeship program?

Martin R. Gold:

But the result of what has happened here is, who are these people that want to be admitted now?

It is the union membership.

Martin R. Gold:

By no means are these the victims of past discrimination.

O. Peter Sherwood:

–Twenty-nine percent membership, which includes both journeymen and apprentices.

Martin R. Gold:

You can’t look at this case to expand that meaning in any way and come to that position.

O. Peter Sherwood:

The number is… they are lumped together for purposes of making that calculation.

Martin R. Gold:

These are young people who are coming into the work force who are about 18 years old.

Can I ask you, Judge Winter said this, and I am sure you are aware of it, in dissent:

Who is on this board?

“However, in light of the facts that large numbers of journeymen did not work during the period in question, or only worked meager hours, reactive fingerpointing at Local 28 is faintly camouflaged holding that journeymen should have been replaced by minority apprentices on a strictly racial basis.”

Are they union people?

Do you have any response to that?

Martin R. Gold:

No.

O. Peter Sherwood:

There is nothing in the court’s order that required the union to displace journeymen as such.

Martin R. Gold:

One is a person… we have several boards and I have to keep them straight.

O. Peter Sherwood:

The standard within the industry was generally, and this isn’t a strict requirement now, that there be a ratio of apprentices to journeymen on roughly a one-to-four basis.

Martin R. Gold:

I believe one is selected by the plaintiffs, that is, by the state, the city, and the EEOC, one by the union, and one by the administrator, who is the judge’s representative, a special master.

One-to-four, yes.

Martin R. Gold:

Now, so we are discriminating between these young people who at the time of the last acts of discrimination that have been proved were approximately seven years old at most.

O. Peter Sherwood:

What occurred during the time period that we are concerned about was that the ratio of apprentices to journeymen went way up.

Or they weren’t born at all.

O. Peter Sherwood:

In some shops you were talking about one in 22.

Martin R. Gold:

Or maybe some of them weren’t born at all.

Because there wasn’t any work.

Martin R. Gold:

That is correct, Your Honor.

O. Peter Sherwood:

And because the union kept the size of the apprenticeship program very low as compared to journeymen, and if you look at the hours worked by journeymen during that period of time, the curb goes way up.

Martin R. Gold:

And this is going on, and we continue to be forced by virtue of this quota, which we have now been threatened… our very existence has been threatened if we fail to meet this by August of 1987.

O. Peter Sherwood:

Again, the journeymen increased their hours during that time period, and the court, given that kind of evidence, concluded that what the union was about was shifting work from apprentices to journeymen to the disadvantage of and in violation of the court’s order requiring that it move… make regular and substantial effort towards integrating its membership.

Why hasn’t it been met up to date?

O. Peter Sherwood:

Mr. Gold indicated that there is evidence in the record of an inadequate number of minorities applying for the apprenticeship program.

Because 45 percent, allocating 45 percent to the black list doesn’t augment the membership fast enough to get to the–

O. Peter Sherwood:

He refers to the fact that in 1981 the union indicated that minorities were not doing well on the test.

Martin R. Gold:

By no means could it possibly do it.

O. Peter Sherwood:

The reason why early on the court required that the union validate its selection procedures, the union elected not to attempt to do that.

Martin R. Gold:

This was doomed to failure from the first.

O. Peter Sherwood:

And so the bit of evidence that Mr. Gold is referring to is that the minorities were not passing this invalidated selection procedure that the union had been using, and that is why it switched from using this paper and pencil test to the selection board.

Martin R. Gold:

And it doesn’t make any mathematical sense to have thought that it could have worked from the beginning.

O. Peter Sherwood:

And so I would say that there is no question in this case as to the unavailability of qualified non-whites to seeking admission into the union.

–But you are not free to put any more than 45 percent blacks on the list?

O. Peter Sherwood:

I might point out that in the last couple of years the rate of application among minorities entering in this union seeking application, seeking membership in the union, has been running between 40 and 49, 50 percent and 75 percent, depending on which particular class you look at.

Martin R. Gold:

At the moment, we are not, Your Honor.

O. Peter Sherwood:

Returning to Section 706(g) itself.

Martin R. Gold:

Now, we have tried to get permission to put more than 45 percent on the list.

O. Peter Sherwood:

The provision is worded broadly, as broadly as one could imagine.

Martin R. Gold:

Right after the original decree was entered in 1975, the problems here became absolutely apparent.

O. Peter Sherwood:

It authorizes courts upon a finding of unlawful discrimination to order such affirmative action as may be appropriate, which may include but is not limited to reinstatement and so on, and any other equitable relief as the court deems appropriate.

Martin R. Gold:

This is 1975, and so the–

O. Peter Sherwood:

This sentence is the source of the court’s power to award race-conscious relief which in appropriate cases may benefit parsons who are not proven victims of discrimination.

Warren E. Burger:

We will resume there at 1:00 o’clock, counsel.

O. Peter Sherwood:

There are, however, some policy choices that Congress built into the statute which operate to guide the discretion in awarding affirmative relief.

Martin R. Gold:

–Thank you.

O. Peter Sherwood:

One of those choices incorporated into the last sentence of Section 706(g) says in essence that a court should not require an employer to hire a particular individual who chooses not to hire for reasons other than unlawful discrimination.

Warren E. Burger:

Mr. Gold, you may resume your argument.

O. Peter Sherwood:

The remedy which a particular individual may demand for himself is restricted to make whole relief.

Martin R. Gold:

Thank you, Mr. Chief Justice.

O. Peter Sherwood:

He doesn’t require the right to employment simply because the employer was found guilty of discriminating against the group of which he is a member.

Martin R. Gold:

Before the luncheon recess, Justice White asked me why it was that during this period from 1975 until the contempt proceeding was filed in April of 1982, or it could even ask further until this very day why has this membership quota of 29 percent not been achieved, and that is an important question, and I would like to answer it.

O. Peter Sherwood:

Another policy choice is that the statute is prospective in its application.

Martin R. Gold:

Before I do that, I would like to tell you what the present figures are.

O. Peter Sherwood:

It doesn’t require the removal of employees who are hired as a result of the prior discrimination.

Martin R. Gold:

These are not in the record that is before you, but they are filed with the Court in New York, the Southern District of New York, and I think that the Court can take notice of them.

Where do you find that?

Martin R. Gold:

The present figures, the total membership is approximately 3,100 members, and the overall membership, which is non-white as that term is defined in this case, is 15.5 percent.

O. Peter Sherwood:

We find that only in the legislative history of the statute where there is–

Martin R. Gold:

Now–

You think that restricts 706(g) so that you couldn’t require the discharge of non-minorities to hire minorities to achieve a certain goal?

Mr. Gold, before you–

O. Peter Sherwood:

–That is what Congress in enacting the statute–

–How is the 29… oh, excuse me.

You think Congress intended not to permit that.

Before you leave that point, Mr. Gold, is one of the paragraphs to which you called my attention which sets forth the quota, it says by 1981 it had to be met, and of course obviously that date has passed.

O. Peter Sherwood:

–That is what I understood Congress to–

But am I correct that none of the contempt, specific findings of contempt against you are based on the failure to achieve the quota?

Based on the legislative history.

Is that right?

O. Peter Sherwood:

–Based on the legislative history.

Martin R. Gold:

–Well, that is correct, that the specifications of contempt which the District Judge found against us and the Court of Appeals affirmed did not contain that.

O. Peter Sherwood:

I don’t see anything in the statute itself that says that.

Martin R. Gold:

The notice of motion to hold us in contempt and the supporting affidavits by the attorneys for both the state and the city concentrated upon the failure to achieve the quota.

Whose statements do you rely on?

Martin R. Gold:

That was the primary basis of their motion.

Are they stated in your brief?

Martin R. Gold:

The court, the District Court instead said he is not finding us in contempt for failing to achieve a quota, underline not, and said, but he is convinced that the other failures, the specifications of contempt taken together made it impossible for other reasons we didn’t achieve the quota.

O. Peter Sherwood:

I believe we may have mentioned it in our brief.

But whatever he found you in contempt for, you nevertheless were under an order to achieve a quota.

O. Peter Sherwood:

What comes to mind is Senator Clark and Case’s memorandum which refers to when the statute–

That is your submission.

Do you think that is fairly authoritative?

Martin R. Gold:

That’s correct.

O. Peter Sherwood:

–It is one of the authorities that is important.

And I am still interested in knowing–

O. Peter Sherwood:

All I am saying with respect to that, however, is that it says that we are giving a one-year delay before the statute comes into effect, and it makes reference to the fact that the statute is prospective, but there is nothing in the language of the statute itself that requires… that says that one could not hire or discharge individuals who were hired because of discrimination.

Martin R. Gold:

Why we didn’t.

Mr. Sherwood, do you think your view of 706(g) has been true ever since 1964, or do you think it was enacted in 1972?

–Yes.

O. Peter Sherwood:

No, I believe it has been true since 1964.

You say the figure was 15 percent now, just now?

So you don’t rely on anything that happened in 1972 as having broadened the relief that… of the kind you are talking about.

Martin R. Gold:

Yes, as of January 31 of this year.

O. Peter Sherwood:

Well, certainly the 1972 amendment has broadened Section 706(g).

Martin R. Gold:

Now–

O. Peter Sherwood:

There is no question about that.

Again, before you leave it, just so I have it clear in my mind, is there another paragraph that requires that the quota be met by a different deadline other than the–

Well, by its terms, yes.

Martin R. Gold:

–Now there is, Your Honor.

O. Peter Sherwood:

By its terms, but it was not necessary for the Congress in 1972 to broaden the statute as it did in order for courts to award the kind of relief that we are talking about here.

–And where is that?

So then you discount a good deal of what your opponents cite as legislative history to the 1964 Act, the statements by Congressman Seller and people like that that we are not authorizing quotas, and we are not having any of that sort of thing.

Martin R. Gold:

That is in a more recent… in the more recent order which emerges–

O. Peter Sherwood:

Congress in those statements were referring to and giving assurances to individuals who believe that this statute if enacted would require employers across the nation to achieve or maintain racial balance.

And then my second question is, have you specifically challenged that position of that order?

O. Peter Sherwood:

That is what those statements–

Martin R. Gold:

–Absolutely.

Well, some of them referred to courts ordering this sort of thing as a kind of relief, I think.

Martin R. Gold:

One of the orders which is on direct appeal to the circuit from which we filed this cert petition is the order which slightly altered the percentage to 29.32 percent, required that that percentage be achieved by August of 1987, and specifically threatened the union that its very existence would be in jeopardy by fine, by extraordinary fines if they failed to achieve it by that date, and that is one of the primary orders which we are contesting here.

O. Peter Sherwood:

–Indeed, courts can’t enter an order that would maintain a racial balance, and the reason for that is that once the court has remedied discrimination, and it may include the use of… in getting to full compliance, that may include the use of goals and other race conscious means.

Mr. Gold, one of the things raised in your brief has to do with the order setting up a special fund–

O. Peter Sherwood:

Having done that, and having fully remedied discrimination, a court order could not then go on and require that the employer maintain any particular racial balance.

Martin R. Gold:

Yes, Your Honor.

Because that would violate the section itself, or because it just would be an exorbitant remedy, or both?

–for use in connection with the apprenticeship program.

O. Peter Sherwood:

Because it would no longer be remedial at that point.

Martin R. Gold:

Yes.

O. Peter Sherwood:

But there is no specific words in section 706(g) that say a court may not maintain–

Did you challenge the validity of the fund order under Title 7 in the Court of Appeals?

So you think the limits of 706(g), you think at least we must refer to the legislative history for guidance?

Martin R. Gold:

Yes, Your Honor.

O. Peter Sherwood:

–I think you don’t have to look to the legislative history for the purposes of this case.

And we find that challenge in the record some place?

O. Peter Sherwood:

We can decide this case on the basis of the plain meaning of the statute itself.

Martin R. Gold:

The specific… there was a direct appeal taken from that order itself to the Second Circuit, and the Second Circuit specifically dealt with it on that basis.

O. Peter Sherwood:

There is no need to look to the legislative history for any of the issues that are before us here.

Martin R. Gold:

I don’t think that the Second Circuit in its majority opinion went into any analysis as to that order being valid under Title 7, but it was clearly what they considered, and that is evident from the dissenting opinion, which specifically states in no uncertain terms that it is invalid just on that ground.

O. Peter Sherwood:

In some other factual contexts, perhaps there may be some need to look at the legislative history, but given this particular case and its facts, I think the plain meaning of the statute itself is all that is required.

Now, before lunch, you were talking about two lists from which applicants are accepted for the program.

O. Peter Sherwood:

And indeed if one looks at the decisions of the Courts of Appeals and the consistent actions of the federal agencies that are responsible for enforcing Title 7, following the enactment of the 1964 Act, you would see that those agencies and those courts recognize that the courts had the power that I suggest that it has.

Those lists ware not ordered by the Court, were they?

O. Peter Sherwood:

Indeed, in 1972, when Congress was amending the law, it recognized that the courts already had those powers, and that appears quite clearly in comments from Senator Javits and others.

I thought those were voluntarily structured at the 45 percent level.

When you say had those powers specifically, what powers?

Martin R. Gold:

Well, I hardly think that that is voluntary, Your Honor.

O. Peter Sherwood:

The power to order whatever relief realistically would work in order to remedy completely the identified discrimination that had been found.

Martin R. Gold:

When you are living under a quota, with threats of the nature which are involved in this case, and in order to do your best to come as close to trying to comply with that you “voluntarily”, I say in quotes, engage in reverse discrimination, I don’t regard that as voluntary.

Well, except discharging non-minorities, or what?

Well, at least the second circuit said that the defendant had voluntarily set up the 45 percent list.

O. Peter Sherwood:

With respect to discharging non-minorities, again–

Martin R. Gold:

The majority opinion said that, Your Honor, and that was their basis for invalidating a specific provision in the newly revised affirmative action plan creating a mandatory one-to-one, one minority, one majority.

Where do you get that limit on 706(g)?

Martin R. Gold:

But as I say, that is hardly voluntary.

O. Peter Sherwood:

–It has… it comes out of… the only place that I see is in the legislative history of the ’64 Act.

How is the term “non-white” defined in the order?

All right.

Martin R. Gold:

Non-white is a person of… a Negro person or a person with a Spanish surname.

O. Peter Sherwood:

But not in Section 706(g) itself.

Martin R. Gold:

Now, where did that definition come from?

O. Peter Sherwood:

What Congress did in 1964 is recognize the broad equitable powers of District Courts to order whatever relief would work, and the District Courts following 1964 have found that in order to fully remedy discrimination, it was necessary to have in appropriate cases the kinds of remedies that may extend to individuals who are not already the proven victims of discrimination.

Martin R. Gold:

It came from the original complaint filed by the Department of Justice in 1971, in which they defined that term as such.

O. Peter Sherwood:

Certainly the District Court’s… whether the District Court orders race-conscious remedies in a given case, depends on the particular facts, and questions, considerations that would go into that determination should include whether or not other means that are available to the District Court would be effective to carry out that purpose.

Martin R. Gold:

The definition was carried forward in the pretrial order, which led to the District Judge’s decisions.

O. Peter Sherwood:

Questions regarding whether or not… how long… the duration of the program.

Martin R. Gold:

It has been carried on ever since.

O. Peter Sherwood:

Certainly once the discrimination is remedied completely, there is no need to continue to use those specific race-conscious means.

Martin R. Gold:

Does that make any sense?

O. Peter Sherwood:

And so in that sense the program would necessarily be temporary.

Martin R. Gold:

I have difficulty with it.

O. Peter Sherwood:

The end goal should be properly fixed, and a way of determining that is seeing what condition this particular, in this case, this particular union would have been in absent discrimination.

Martin R. Gold:

For example, this union now has a reasonable number of orientals.

O. Peter Sherwood:

One would have expected in this case that the non-white membership of this union would be somewhere around 29 percent had it not been guilty of discrimination.

Martin R. Gold:

Those orientals are counted as whites.

Did the union draw its membership only from New York City?

Martin R. Gold:

It had very few orientals, if any, back in 1964, when this whole business began.

O. Peter Sherwood:

Principally.

Mr. Gold, have you answered yet the question why you had not achieved the goals?

But not only?

He has given one reason.

O. Peter Sherwood:

But not only.

So you can… can you go ahead?

O. Peter Sherwood:

Some of its members did live outside New York City.

Martin R. Gold:

Well, there are a couple of reasons.

O. Peter Sherwood:

That question was raised in the very first appeal in this case as to the appropriate scope of the… the appropriate dimension or scope of the labor market.

Martin R. Gold:

The primary reason is because during the period involved there were extraordinary economic reversals in the construction industry in New York, of which this onion is one part.

O. Peter Sherwood:

I should point out that no issues have been raised with respect to that particular question, the scope of the labor market on this appeal.

Martin R. Gold:

I am sure you will recall that during just this period from 1975 to 1980, which is the critical period here, the construction industry in New York was in terrible straits.

O. Peter Sherwood:

It is a matter that was raised and resolved a decade ago, and no petition for writ of certiorari was sought at that time.

Martin R. Gold:

As a result, the membership of this union went from in excess of 3,000 members to approximately 2,000 members during that period of time, and there weren’t any jobs for the journeymen, and there weren’t any jobs for anybody at times even for the membership.

O. Peter Sherwood:

Of course, the degree of flexibility that should go into the fashioning of any particular plan is a matter that ought to be considered as well.

Martin R. Gold:

In the low point of this, 42 percent of the union members were employed, not unemployed, but employed.

O. Peter Sherwood:

I think the District Court did precisely that in this case.

Martin R. Gold:

The rest of them were all unemployed.

O. Peter Sherwood:

And finally, the incidental effects that the program may have on others should be considered.

Martin R. Gold:

There just wasn’t any construction going on in New York.

O. Peter Sherwood:

What the District Court did in this case was to require that the union maintain an apprenticeship program of adequate size, realistically fixed in terms of the availability of work within the industry so that there would be a scream of minorities and non-minorities entering into full membership in the union.

Martin R. Gold:

Now, at that time how is it possible to interest anyone, white or black or purple, in becoming a member of this union or in joining this business?

O. Peter Sherwood:

It is that problem, the problem of constricting the size of the apprenticeship program itself, that has been a repeated problem in this case.

Martin R. Gold:

That was the primary problem.

Mr. Sherwood, on Page 14 of the petitioner’s brief, in their summary of argument, they say that they are complaining about the geographical area.

Martin R. Gold:

But I think that this failure was inevitable anyway without the most extraordinary kind of reverse discrimination, which I think could never be tolerated.

O. Peter Sherwood:

They are saying that now.

Well, it was possible with extraordinary reverse discrimination, as you call it.

O. Peter Sherwood:

All I am saying, Justice Rehnquist, is that they did not complain about that in the Court of Appeals.

The 45 percent you set, but I take it it was accepted by the special master or whatever you call him, the administrator.

O. Peter Sherwood:

That is something–

Martin R. Gold:

It was accepted by the plaintiffs in 1981 as well.

They complained about it once in the Court of Appeals.

Yes.

And this is the same case that originally raised it.

Martin R. Gold:

And the union had done it voluntarily before that, even though the class of apprentices had been very small as a result of the economic decline.

It is now here on certiorari.

But you say it was inevitable anyway, and so–

We are certainly not bound by what the Court of Appeals said.

Martin R. Gold:

Yes, I think–

O. Peter Sherwood:

–They raised it… are you referring to when they raised it ten years ago?

–So the remedy… does that translate into an assertion that a satisfactory remedy was impossible?

Yes.

Martin R. Gold:

–Well, I think that calling this civil contempt just… and treating it the way the District Court did just mixed up civil and criminal contempt remedies.

O. Peter Sherwood:

Certainly they raised it–

This is a contempt argument, and I understand that is part of your argument, but that isn’t much of a Title 7 argument.

There is no lay of the case that binds this Court.

Martin R. Gold:

Well, I am not sure that I understand your question then, Your Honor.

O. Peter Sherwood:

–We are not suggesting that law of the case applies here.

Martin R. Gold:

The point with respect to the contempt is this.

O. Peter Sherwood:

What we say applies here with respect to that issue is res judicata.

Martin R. Gold:

In a civil contempt situation, the purpose of it is to coerce somebody, to obey an order which is yet unobeyed.

There has never been a final judgment in this case, so it can’t possibly be res judicata.

Martin R. Gold:

That is the primary purpose.

O. Peter Sherwood:

There certainly has been a final judgment.

Martin R. Gold:

In fact, as I read Section 1101, which is the contempt section under the Civil Rights Act, I think that is the only permissible purpose.

Is this not the same case that was litigated ten years ago?

Martin R. Gold:

That is the only basis on which this was sustained by the Second Circuit.

O. Peter Sherwood:

Yes.

Mr. Gold, excuse me for interrupting you.

O. Peter Sherwood:

this is the same–

Martin R. Gold:

Yes, Justice Powell.

Then it is not res judicata.

I have a question or two that may not be relevant but as a matter of interest.

O. Peter Sherwood:

–As I understand the principle of res judicata, once a case has been tried, and tried to judgment, and there has been the opportunity to appeal, and the 90 days that one gets in order to seek certiorari in this cases passes, that is–

Did the District Court’s order require any member of the union to be laid off?

Are you saying these people never took this issue to the Court of Appeals?

Martin R. Gold:

No, Your Honor.

O. Peter Sherwood:

–They took it to the Court of Appeals in 1976.

In what way, if any, did the order of the District Court discriminate against a particular member of the union?

But this Court can revise any part of this case that came along if it was once taken to the Court of Appeals.

Martin R. Gold:

I don’t think that it did discriminate against any existing member.

O. Peter Sherwood:

My understanding of res judicata is that once the time to appeal is over, following a trial on the merits, that after the time to appeal has expired, that is it, even if the court continues to maintain jurisdiction over the case.

You used the term “reverse discrimination”.

Do you understand the difference?

I would like to identify the impact, if any, on individual members of the union.

O. Peter Sherwood:

Fair enough.

Martin R. Gold:

I think that the impact is on people coming into the union, who desire to come into the union.

O. Peter Sherwood:

I see that my time is up.

Who are not in the union already.

Warren E. Burger:

Mr. Gold, you have four minutes remaining.

Martin R. Gold:

Yes, Your Honor.

Thank you, Mr. Chief Justice.

And who are wanting to get into the apprenticeship program.

Martin R. Gold:

One of the problems in this case is the fact that I believe the Second Circuit has misunderstood the difference between quotas and goals in the beginning of this case and even before.

Yes, Your Honor.

The difference is set forth on Page 9, about 9 and 10 of our reply brief.

And it seems to me I read in one of the briefs that existing union members are required to pay for the apprentice program.

Martin R. Gold:

And it comes from an authoritarian memorandum which was issued in 1973 by the EEOC, the Department of Justice, the Civil Service Commission, and the Office of Federal Contract Compliance.

Is that correct?

Martin R. Gold:

Those are the agencies which have federal responsibility for enforcing the law in this area.

Yes.

There are really three elements to the difference.

Who pays for it?

Martin R. Gold:

It is a quota if it is a fixed number or percentage which must be achieved, if that percentage must be achieved regardless of number of applicants or economic circumstances, and if there are sanctions for its failure to reach that percentage.

They do, Your Honor, as they pay for everything else that is going on here.

If, on the other hand, there is a numerical objective, and it is precatory, it is subject to change with experience and it is not subject to sanctions, then it is a goal.

They pay for the administrator, too, don’t they?

Martin R. Gold:

Now, the Second Circuit adopted a different test in the Rios case in 1973.

They pay for the administrator.

Their test doesn’t look at any of those criteria.

The administrator’s fees as of the end of November had been close to $700,000 so far for his services.

Instead, it says… it looks at only one criterion, and that is, must the percentage of membership be maintained after it is attained.

He has been involved in this on essentially a daily basis since he was originally appointed.

In other words, according to the Second Circuit, if there is an order, as there was in this case, directing a party to achieve numerical membership of X percent by a specific date, that is a goal, says the Second Circuit.

Has there been any problem about the availability of qualified non-whites?

Martin R. Gold:

If, on the other hand, the order goes further, and states that that percentage must be thereafter maintained at that level, then the Second Circuit says that is a quota.

Absolutely, Your Honor.

I suggest to you that that just is plain wrong.

Martin R. Gold:

That is–

That comes from the Rios case in 1973, and that is the rule that the Second Circuit was enforcing when it made that difference in this case.

Does that enter into the achieving 15 percent instead of 29?

Martin R. Gold:

Now, the various circuits that have looked at this issue all said, I believe, I believe every one of them says that quotas are no good and goals in certain circumstances are permissible.

–That certainly is a factor, Your Honor.

Well, as I understand it, you would be making your argument here on whether this… even if you agreed that it was a goal–

Is there material on that in the record?

Martin R. Gold:

I would, Your Honor.

There is, Your Honor.

–you would be making the same 706(g) argument.

Martin R. Gold:

The material, we didn’t print it, but it is reports that indicate that smaller percentages of non-whites than one would hope had passed the original… had passed the entrance tests.

I would, Your Honor, absolutely.

I would like to reserve–

I don’t think that I have to go that far in this case.

Is that any place–

Well, you may.

–You say that it would have been impossible to achieve this 29 percent under any circumstances.

Martin R. Gold:

Perhaps I may.

–Yes.

And I don’t think that goals are very good, either.

The only way that this could have been achieved is if there was an extraordinary boom in the construction industry in New York, and at the same time the union essentially said we are only going to take blacks or close to only blacks, and went out and–

And I don’t think that they are permitted under 706(g), and they have got some problems.

Into the apprentice program.

Martin R. Gold:

They have got two very specific problems.

–Into the apprentice program.

One is, they tend to degenerate into quotas if they are enforced that way, and second is, the basic assumption for them seems to me to be fallacious.

Now, as a result–

The assumption is that if you have a work force with 29 percent of a certain background person, that in the absence of discrimination, that same percentage of those people is going to gravitate to each occupation, and that just is contrary to human experience.

Didn’t you run the apprentice program whether the construction industry was on the boom or in the–

Martin R. Gold:

That is not the way that people line themselves up.

Martin R. Gold:

–We did, Your Honor, but during the lean years there were just a small number of apprentices who were in the program.

Now, one other point that I would like to make, Mr. Sherwood–

Many who joined dropped out because they weren’t able to get jobs.

The one point that worries me is, this whole question of goals was established in a case that you didn’t bring up here.

Martin R. Gold:

It is a four-year apprentice program, and during that period of time people have to work, and if there are no jobs it is very difficult to attract or keep people.

–But we didn’t bring it?

I would like to reserve a few moments… a few minutes at the end of my time.

Yes.

Martin R. Gold:

Thank you.

The issue was–

Warren E. Burger:

Mr. Sherwood.

You left it in the Court of Appeals, didn’t you?

Warren E. Burger:

We rill hear arguments next in Local 28 of the Sheet Metal Workers’ International Association and Local 28 Joint Apprenticeship Committee against Equal Employment Opportunity Commission.

O. Peter Sherwood:

Mr. Chief Justice, and may it please the Court, listening to Mr. Gold this morning and the first part of this afternoon, I was struck by his characterization of the condition of the union that we have here before us today.

Martin R. Gold:

–The issue of goals and quotas?

Warren E. Burger:

Mr. Gold, I think you may proceed whenever you are ready.

O. Peter Sherwood:

I would think that neither the District Court nor the Court of Appeals would have recognized the union in its supposed compliance as described by Mr. Gold this morning.

Yes.

Martin R. Gold:

Thank you, Mr. Chief Justice, and may it please the Court, this case raises the long history of the desegregation of Local 28 of the sheet metal workers of New York.

O. Peter Sherwood:

References to the term “egregious conduct” comes not so much from the amici or the briefs filed by the respondents but rather is a term used by the lower courts in describing the conduct of this union.

Martin R. Gold:

The Second Circuit, which–

This process of desegregation began in 1964, and I hope to demonstrate to you that it was essentially completed by 1975 in the sense that at that time all barriers to entrance into the union had been removed, and no acts of discrimination against any minority persons have been proved since that time.

O. Peter Sherwood:

For over two decades the courts have been prodding this reluctant union towards full compliance with local, state, and federal laws requiring equality of opportunity in employment.

You didn’t apply for cert, did you?

Martin R. Gold:

Now, since 1975, however, this union has been under the strictest kind of court order involving the strongest measures of affirmative action.

O. Peter Sherwood:

And our appearance here today is simply the latest stop along that arduous road.

Martin R. Gold:

–We didn’t apply for cert in that–

Those have included a 29 percent quota, which I want to talk about at some length, because this is clearly a quota case, this is not a goal case, further race conscious remedies, and total loss of self-government.

O. Peter Sherwood:

This afternoon I want to focus on the meaning of Section 706(g) as it relates to the issues that are before the Court, and of course we stand on all of the arguments that we make in our brief.

Why?

Martin R. Gold:

Now, when the quota was not achieved by the deadline which was fixed by the District Court, then civil contempt remedies were imposed upon this union, and as a result of the fact that this was deemed to be civil contempt and not criminal contempt, the union was not able or permitted to defend itself by proving that it had not acted wilfully, and that it didn’t have any control over the situation.

O. Peter Sherwood:

Initially, I want to state briefly our position regarding Section 706(g).

Martin R. Gold:

–I wasn’t representing this party at that time, Your Honor, but I think the reason that people don’t ask for cert is because they want to live without litigation if it is possible rather than go on endlessly if it proves to be necessary.

As a result of this, a strengthened program of further quotas was imposed, more race conscious remedies, 100 percent… a fund to be used 100 percent for minorities, and which cannot in any way be used to benefit white people at all.

O. Peter Sherwood:

I intend to respond briefly to a few of the points made by Mr. Gold this morning and early this afternoon, and then return to a fuller discussion of Section 706(g).

And lawyers are expensive.

Martin R. Gold:

Now, I hope to demonstrate to you that the reverse discrimination in this case is beyond all boundaries.

O. Peter Sherwood:

To the extent that the Court determines that it should address the reach of the remedial authority of District Courts under Title 7, it is our position that Section 706(g) itself gives courts broad authority to grant relief that realistically will work to fully remedy the discrimination that it has found.

Martin R. Gold:

Yes.

It is beyond the boundaries of Title 7.

O. Peter Sherwood:

In some cases, and I suggest that this is one such case, that includes the power to order affirmative race conscious relief which benefits some people who are not the proven victims of the identified discrimination.

Martin R. Gold:

Thank you.

It is beyond what Congress intended and set forth in speech after speech during the debates.

O. Peter Sherwood:

Imposition of a per se rule that prevents the District Court from ordering such remedies in appropriate cases is at odds with the plain language of the statute itself.

Martin R. Gold:

I see my time is–

Mr. Gold, before you get into the substance of your argument, would you tell me which paragraph of the decree imposes the quota?

O. Peter Sherwood:

As is evident in the decision to the Courts of Appeals that are charged with responsibility for implementing and overseeing implementation of the statute, such a rule would deprive the courts of the needed tools, the tools they need in order to carry out the statute’s essential purpose of rooting out identified discrimination and its effects.

Warren E. Burger:

Thank you, gentlemen.

Martin R. Gold:

It is the decree which sets forth… it is–

O. Peter Sherwood:

We believe, however, that the determination of whether or not non-victim-specific race-conscious remedies should be ordered should be left initially to the discretion of the District Courts.

Warren E. Burger:

The case is submitted.

You quoted several paragraphs in your reply brief.

O. Peter Sherwood:

That is the scheme that Congress envisioned when it enacted and amended Title 7.

Is it in those paragraphs?

O. Peter Sherwood:

Of course, that relief should be tailored to cure the effects of the identified discrimination.

Martin R. Gold:

–In our reply brief and in our main brief we set forth the specific… we quoted the specific paragraph.

O. Peter Sherwood:

Considerations that should attend that determination to impose prospective race-conscious remedies have already been suggested by this Court in Webber and by Justice Powell’s opinion in Fullilove.

Martin R. Gold:

I don’t have the page number before me.

O. Peter Sherwood:

They include the efficacy of alternative remedies, the planned duration of the remedy, the relationship between the percentage of minority workers admitted to membership, and the percentage of minority group members in the relevant labor pool, the availability of waiver provisions if the hiring plan cannot be met, and the effect of that plan on third parties.

Martin R. Gold:

We have got 1,000 pages printed.

O. Peter Sherwood:

Regarding a number of the points that Mr. Gold made earlier, I would like to just make a few comments.

Martin R. Gold:

But it specifically… the original quota specifically states in the court’s decree that by July 1, 1981, the quota shall be achieved.

O. Peter Sherwood:

One, the District Court’s order here does not impose a quota.

Martin R. Gold:

Excuse me.

O. Peter Sherwood:

The 45 percent number that Mr. Gold referred to is one selected by the union.

Martin R. Gold:

I do have it.

O. Peter Sherwood:

What the District Court has ordered in this case is that the union move with dispatch towards overcoming the long history of discrimination that it has practiced.

Martin R. Gold:

It is A305.

How about the 29 percent figure?

Martin R. Gold:

That is Page 305 to the appendix to the cert petition, I believe.

O. Peter Sherwood:

The 29 percent figure, Justice Rehnquist, is a number which the District Court said you shall move ahead with… make regular and substantial progress, and those are the words the court used, towards getting to the 29 percent.

Martin R. Gold:

Now, there is one point that I really think must be put on the table in this case.

O. Peter Sherwood:

It is a means by which the Court measured how long it would closely supervise this union’s progress towards integration.

Martin R. Gold:

Many people who look at this case seem to apply a presumption to it, the presumption that since this union has been in litigation for all these years over matters pertaining to civil rights, the presumption is that they must be bad people, and some of the language which has been used particularly in the amicus briefs goes beyond all facts.

There was no time requirement–

Martin R. Gold:

One of the words which appears over and over again is egregious.

O. Peter Sherwood:

There is a time requirement which has been, incidentally, reset a few times now.

Martin R. Gold:

I want to demonstrate to you that when you scratch below the surface here, what has happened is quite the reverse.

O. Peter Sherwood:

The court recognized early on that conditions beyond the control of the union, such as conditions in the union, might require adjustment, and the court has done so, as I said, on two occasions.

Martin R. Gold:

This union has really been forced by virtue of this quota, by virtue of these other… to engage in more reverse discrimination than has been permitted in any case that I know about.

O. Peter Sherwood:

What the court has required, and it has said so in several places in the record, is that it wants the union to move ahead and move ahead with dispatch.

Martin R. Gold:

And to say that this anion is a bunch of bigots who will go to any extent and any limit to avoid taking in minorities just avoids the facts.

–Supposing the District Court had said I think you should aim for 29 percent and I think you should… I am going to order you to attain it six years hence, would you say that is not a quota?

Martin R. Gold:

It ignores them completely.

And if you don’t, I will fine you.

Martin R. Gold:

This union has done just the opposite.

Yes.

Martin R. Gold:

As a result of what has been imposed upon it, this union has taken in as much, as many minorities as possible, and continues to do so.

O. Peter Sherwood:

Okay.

Martin R. Gold:

They have gone so far and would go so far if permitted as to literally put up a sign at the entrance to the office where people could sign up for the apprentice program saying “Blacks only need apply”.

O. Peter Sherwood:

I don’t want to debate whether we are talking about a quota or a goal, because it seems to me that the terms, although many people use them, don’t… doesn’t focus in precisely on the concept which we are talking about.

Martin R. Gold:

That is because of the court order which has been imposed against them.

Would you say that is permissible?

Martin R. Gold:

Now, it is important to bear in mind that sheet metal workers are a very skilled trade.

O. Peter Sherwood:

But let’s call it a quota.

Martin R. Gold:

As a skilled trade, it takes a sufficient… it takes a significant amount of time for them to be trained.

Was that permissible for the District Court to do under your view of 706?

Martin R. Gold:

The apprentice program is four years.

O. Peter Sherwood:

I believe so, yes.

Martin R. Gold:

Not everyone can qualify for the apprentice program.

O. Peter Sherwood:

The District Court could do what it has ordered in this case.

Martin R. Gold:

The aptitude test that has been given for a good period of time now under the supervision of the courts’ offices is at approximately the level of tenth grade math, tenth grade English, and that is just to get into the program.

O. Peter Sherwood:

It has–

Martin R. Gold:

Now, it would just be impossible, and no one is claiming otherwise, to simply open the doors and permit anyone to come in and become a sheet metal worker.

How did the District Judge come to 29.23?

Martin R. Gold:

It is as if you wanted to do the same thing with a professional, the legal profession or the medical profession, and suppose a determination were made that there was an insufficient percentage of minorities in those professions, and the federal judge said, as a result of that, we are going to integrate.

O. Peter Sherwood:

–It came to 29.23 on the basis of the evidence it had before it that that was the proportion of… the proper proportion of non-whites.

Martin R. Gold:

These professions are going to start to accept a larger percentage of minorities, and we will give you an out date, and by that date a percentage has to be achieved.

I assumed it was drawn from some such, but the fraction seems to be a little curious.

Martin R. Gold:

On a somewhat lesser scale, that is what happened in this case.

O. Peter Sherwood:

That was the result of the particular evidence before the District Court in 1982.

Well, are you challenging any finding that there was deliberate discrimination?

But here this is a fluctuating… the market is fluctuating.

Martin R. Gold:

No, Your Honor.

The number of people employed at a given time is fluctuating.

So there was deliberate discrimination?

O. Peter Sherwood:

No, it is not.

Martin R. Gold:

Your Honor, I began by–

Is that not so?

And a remedy was called for.

O. Peter Sherwood:

The… well, certainly the number of people in the market may fluctuate er time, but that 29.23 percent was fixed in 1982 as a result of, yes, a change in the relevant labor pool, and also, and most importantly, because the jurisdiction of the union had changed as a result of a merger of other unions into this union.

Martin R. Gold:

–Yes, sir.

O. Peter Sherwood:

There was a proceeding before the District Court in which the union proposed that the proper end goal should be around 21 percent.

Now, what was wrong with the remedy?

O. Peter Sherwood:

The plaintiffs in the case asked for percentages ranging between 33 and 41 percent.

Martin R. Gold:

What was wrong with the remedy was that it went beyond what Title 7 permits.

O. Peter Sherwood:

The District Court had in the record before it testimony to the effect that the proportion of non-whites in the labor market, in the defined labor market who were within the appropriate age ranges was 29.23 percent, and that is where the number came from, so the District Judge picked a number which was in between that which the union was proposing and that which plaintiffs were proposing.

In what respect?

O. Peter Sherwood:

As I said, the–

Martin R. Gold:

In that to begin with it contained a quota.

But anyway the figure was supposed to match the percentage of available applicants in the labor market.

Martin R. Gold:

Next–

O. Peter Sherwood:

–In the labor market.

When you say the quota, you mean the 29.3 percent.

O. Peter Sherwood:

That is correct.

Martin R. Gold:

–Well, it was originally 29 percent.

Of whatever was defined as minority.

Anyway, you call it a quota, and you say that the court called it a quota.

O. Peter Sherwood:

That’s correct, and that was based on the evidence that was before… presented to the District Judge.

Martin R. Gold:

Yes, Your Honor.

O. Peter Sherwood:

Mr. Gold suggested that the fund sets up a 100 percent quota with respect to those items that are addressed in that particular order.

All right, so that is one.

O. Peter Sherwood:

I should point out that the District Court made quite clear that the union was free if it chose to extend those kinds of benefits to whites as well, but the Court was not going to itself impose… require that the union extend those benefits to white individuals.

What else?

O. Peter Sherwood:

I should point out, too, that the selection board that selects people for the apprenticeship program are all union members.

Martin R. Gold:

That is one.

O. Peter Sherwood:

One is selected by the administrator.

Martin R. Gold:

The next is the total loss of control over self-government by virtue of the administrator, and the others are a variety of minor provisions in the order and judgment and the affirmative action program… that is seven paragraphs of them… which direct that preferences be given to minorities in various aspects of hiring.

O. Peter Sherwood:

One is selected by the plaintiffs, and one is designated by the union, but they are all members of Local 28.

Do you make any claim that… similar to the claim the United States makes that the remedy was excessive because it gave remedies to people other than victims?

O. Peter Sherwood:

Importantly… I think it is important to recognize precisely what–

Martin R. Gold:

Yes, sir.

Did the plaintiffs agree to the 45 percent at one point in this proceeding?

Was that part of your argument?

O. Peter Sherwood:

–The plaintiffs did acquiesce in that.

Martin R. Gold:

That is part of our argument, Your Honor.

O. Peter Sherwood:

Yes, Justice White.

Martin R. Gold:

But we go beyond that, because if we look at the case, if you telescope it to look for a moment at what is going on now as a result of these enhanced and magnified orders which followed the contempt, here we have a situation now where the last acts of discrimination that anyone has proved or even alleged occurred prior to 1975, and nevertheless as as result of these orders this union is presently maintaining two lists of young people who are applying for entrance to the apprentice program, whites and non-whites, and when a person comes in the door, we have to put him on one list or another, and 45 percent–

And have they ever asked for a higher percentage?

If they have passed the test.

O. Peter Sherwood:

At one point the plaintiffs sought to obtain an order from the District Judge for a one-to-one ratio for placing people into the apprenticeship program, and the District Court–

Martin R. Gold:

–No more test.

And what did–

Oh, I see.

O. Peter Sherwood:

–I am sorry.

Martin R. Gold:

Now there is a selection board.

–What did the judge say, no?

Okay.

O. Peter Sherwood:

The District Court did order that, but the Court of Appeals stripped that portion of the order for the reason that since the union was voluntarily indenturing non-whites at 45 percent, there was no need for that kind of ratio.

Martin R. Gold:

And 45 percent of each class of apprentices is now minorities.

Would one-to-one have attained the 29 percent goal, do you know?

Martin R. Gold:

Now, who we–

O. Peter Sherwood:

By 1986?

Regardless of how they are graded by the selection board?

O. Peter Sherwood:

I don’t think so, Justice White.

Martin R. Gold:

–That’s right.

Any more than 45 percent?

Martin R. Gold:

Now, who are we discriminating between?

A little… maybe a little more.

Martin R. Gold:

These are not the victims of discrimination.

O. Peter Sherwood:

I don’t think the difference is significant, but I think it is important to remember precisely what led to this union being held in contempt.

Who do they choose first on the white list and who do they choose first on the black list?

O. Peter Sherwood:

They were not held in contempt for not meeting the 29 percent goal.

Is it by grade?

O. Peter Sherwood:

They were held in contempt for not trying particularly hard.

Martin R. Gold:

There are no tests any longer.

But they were still under an order.

I know, but–

O. Peter Sherwood:

Pardon?

Martin R. Gold:

There is a selection board, and what the selection board does is, it goes over the qualifications of all of these people, and if they–

They were still under an order to attain that… to shoot for that goal.

–But they rank them.

O. Peter Sherwood:

Yes, that is correct, but that is precisely it.

Martin R. Gold:

–Yes.

O. Peter Sherwood:

They are under an order to shoot for that goal.