The opinion of the court was delivered by: Campbell, Chief Judge.
The instant action, which might best be described as a suit
alleging the discriminatory denial of job opportunities in
violation of the United States Constitution, was first presented
on a motion for a temporary restraining order or in the
alternative for a preliminary injunction.
By way of chronology I should here record that prior to
accepting the task of deciding this case on its merits I
attempted, unsuccessfully, in a pre-trial conference to have the
attorneys for the respective parties reach an amicable
When settlement showed itself to be impossible, I immediately
heard oral argument on the all important issue of jurisdiction.
The excellent oral arguments of all counsel, buttressed by their
equally fine supporting briefs, convinced me, first, of the
unusual importance and significance of this case from both a
legal and a sociological perspective; second, of an apparent
conflict between the equities of the case and what law there is
relative to the issues; and thirdly, of the fact that for the
most part this complaint, taken as a whole, presented a case of
first impression, which should proceed at this time without
further delay to do justice to all parties concerned.
In order better to study the issues, I required the additional
benefit of knowledge of the facts underlying the complaint, facts
which it was apparent defendants' counsel themselves did not
agree upon in their oral arguments on the jurisdictional issue.
I, therefore, denied the motions to dismiss without prejudice to
their being renewed at the close of the evidence on the motion
for a preliminary injunction.
I thereby reserved the jurisdictional issue with the factual
issue until now.
After receiving evidence on the facts involved, hearing the
most eloquent arguments of all counsel, and re-reading the
excellent briefs previously submitted I now make the following
findings of fact and conclusions of law.
1. Joint Apprenticeship Committee of the Steel
Workers of Chicago and International Association
of Bridge, Structural and Ornamental Iron Workers
Local Union No. 1, and Its Named Officers and
Officials named in the complaint, which will be
hereinafter referred to as the Joint Committee, or
as the Committee.
2. Iron Workers Bridge and Structural Union, Local
No. 1, and Its Officers and Officials named in the
complaint, which entity will hereinafter be
referred to as the Union.
3. Paschen Contractors, Inc., a Delaware Corporation,
and Peter Kiewit Sons Co., a Nebraska Corp., which
will be hereinafter referred to jointly as The
4. Bethlehem Steel Company, a Delaware corporation,
which will hereinafter be referred to as Bethlehem.
5. Dominic Tesauro, Regional Administrator, General
Services Administration, who will hereinafter be
referred to either as Tesauro or the G.S.A.
6. Alvin A. Dost, Regional Director, Bureau of
Apprenticeship and Training, U.S. Department of
Labor, which hereinafter will be referred to as
Dost or the Bureau.
7. Board of Education, City of Chicago, which will
hereinafter be referred to as the Board of
There is little dispute as to the facts, although there seems to
be a grave question as to what findings they may justify. Thus,
for present purposes I will merely outline the facts to the
extent necessary to permit me to recite my findings thereon.
In October, 1962, GSA entered into a contract for the
construction of a United States Courthouse and Office Building
structure herein the City of Chicago with the defendant
Contractor, who in turn sub-contracted with the defendant
Bethlehem as to the steel work. These contracts included
provisions which in effect require the Contractor and
Sub-Contractor not to discriminate on the basis of race, religion
or ethnic background in the hiring of their employees. The
contracts also specifically include by reference the terms of
Presidential Order No. 10925 on Equal Employment Opportunities.
The defendant Union is the sole supplier of iron workers to
Bethlehem on the instant job. Bethlehem by virtue of its
collective bargaining contract must hire only those certified to
it by the Union.
This Union has never had a negro among its membership.
Moreover, the Joint Committee which supplies this Union with its
new members through an apprenticeship program has never, until
July of 1963, had a negro application on file. The Joint
Committee is the sole supplier of apprentices to the Union.
To relieve what on its face appeared to be a patent policy of
discrimination an initial attempt was made by government agencies
to locate negro journeymen who were Union members. It is noted
that this search was not confined to this area, and in fact, this
search failed to produce so much as one negro within the ranks of
the defendant Union. Having so failed, some six negro welders who
had experience working on steel were suggested to the Union
and/or to Bethlehem in the hope that some of them might be
acceptable journeymen. These men were all found to be incompetent
prospective journeymen, either on the basis of their age or lack
Next, the plaintiffs, the aforesaid three young negroes, after
being tested as to aptitude, potential ability and suitability
were encouraged by the same government officials to seek
employment on this federal job as apprentice iron workers. In the
latter part of June, 1963, they were interviewed by
representatives of Bethlehem who found two of the three, Todd and
Hill, to be qualified. The evidence
brought forth the fact that Bethlehem was and is of the belief
that one of the specifically named plaintiffs, Michael Cochran,
would not be a satisfactory employee. I need not and will not go
into the reasons and merits prompting Bethlehem's position with
reference to Cochran beyond concluding, which I do, that
Bethlehem's decision that it did not want Cochran was not an act
motivated or principled upon reasons of racial discrimination.
Bethlehem did, however, express a willingness to hire Todd and
Hill as apprentice iron workers subject to their being properly
indentured and presented by the Union. This fact was made known
by Bethlehem to the Union and to the Joint Committee. All three
plaintiffs did, also during the latter part of June, 1963, fill
out apprenticeship training applications with the Joint
Committee. None of the three were or have been indentured and/or
submitted to Bethlehem for employment.
To become a member of the Union through the apprenticeship
program an applicant must first be permitted to fill out an
application. That application must then be accepted by the Joint
Committee, said acceptance coming only after the applicant has
been examined by the Committee.
Conflict inheres in the testimony, the documentary evidence and
the representations of counsel as to the method by which
applicants are selected for indenture certification. Chronology
of application is probably a criteria, assuming the Joint
Committee desires it to be. But as a practical matter, I find
that selection is wholly within the arbitrary discretion of the
Joint Committee. In any event, I find that the actual operation
of the instant program considered in light of its results
discriminates against negroes, more specifically against the
rights of negroes to learn and earn a living in, the ...