Opinion
August 24, 1964
Henry Spitz, Sidney Kant, William M. Miles and Solomon J. Heifetz for New York State Commission for Human Rights.
Cohn Glickstein ( Sidney E. Cohn and Samuel Harris Cohn of counsel), for Local 28, Union Officers and Representatives, respondent.
Zelby Burstein ( Herbert Burstein of counsel), for Seymour Zwerling, respondent.
Breed, Abbott Morgan ( Thomas A. Shaw of counsel), for Richard Funk and another, respondents.
Stember Dershowitz ( Jerome M. Stember of counsel), for Morris Lipka, respondent.
David Harrison Storper for Nathaniel Gold, respondent.
Louis J. Lefkowitz, Attorney-General ( Shirley A. Siegel and George D. Zuckerman of counsel), for State of New York.
Benjamin Rosenthal for Joint Apprenticeship Committee, respondent.
Motions numbered 39, 40, 42, 43 and 62 of June 22, 1964, are consolidated with motion No. 41 of the same date.
Pursuant to section 298 Exec. of the Executive Law, the State Commission for Human Rights has brought this proceeding seeking enforcement of its order affecting employment practices in the sheet metal industry. The order of the commission, in essence, found that the respondent union, Local 28 of the Sheet Metal Workers International Association of Greater New York (hereinafter referred to as "Local 28"), and the Joint Apprenticeship Committee (hereinafter referred to as "JAC") denied to or withheld from qualified Negroes and other minority groups the right to be admitted to and participate in the sheet metal apprentice program, under their control, solely because of race and color. The order further found that the individual respondents herein, who are employer members of the JAC, aided and abetted the other respondents in denying qualified Negroes the right to enroll in the apprenticeship program. By separate motions, Local 28 is seeking review of said order, and the individual respondents seek to set aside said order as it affects them individually.
Proceedings herein were commenced by complaint of the Attorney-General of the State of New York to the commission, pursuant to section 297 Exec. of the Executive Law of the State of New York. The complaint charged violation of section 296 (subd. 1, par. [b]; subds. 1-a, 6) which provide:
"§ 296. Unlawful discriminatory practices. 1. It shall be an unlawful discriminatory practice: * * *
"(b) For a labor organization, because of the age, race, creed, color or national origin of any individual, to exclude or to expel from its membership such individual or to discriminate in any way against any of its members or against any employer or any individual employed by an employer.
"1-a. It shall be an unlawful discriminatory practice for an employer, labor organization, employment agency or any joint labor-management committee controlling apprentice training programs: * * *
"(b) To deny to or withhold from any person because of his race, creed, color or national origin the right to be admitted to or participate in a guidance program, an apprenticeship training program, on-the-job training program, or other occupational training or retraining program;
"(c) To discriminate against any person in his pursuit of such programs or to discriminate against such a person in the terms, conditions or privileges of such programs because of race, creed, color or national origin. * * *
"6. It shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so."
The order of the commission was issued in conformity with section 297.
The Joint Apprenticeship Committee, containing equal union and employer representation, was created by the parties to supervise and control all duly qualified apprentices. It is required under the Standard Form of Union Agreement, the collective bargaining agreement governing the industry, to formulate and make operative rules to govern the conditions pertaining to duly qualified apprentices and the operation of an adequate apprentice training system.
The commission found that Local 28, consisting of 3,300 members and 430 apprentices, has never had nor does it presently have a Negro member, nor has any Negro participated in the JAC training program. The only realistic way of becoming a member of Local 28 is through the JAC program. The commission further found that, in the most recently completed training program, 80% of the trainees were related in some manner to the members of Local 28. The commission also found that admission to the apprenticeship training program was not based upon any set of objective standards. No provision existed safeguarding any applicant against discrimination because of race, color, creed or national origin. Nor was there any provision entitling an applicant to seek review of a rejection of his application for training.
The court concludes that the findings of the commission, except as hereinafter noted, are supported by substantial evidence on the record considered as a whole. The findings are therefore conclusive (Executive Law, § 298; Matter of Holland v. Edwards, 307 N.Y. 38, 44, 45; Matter of Stork Restaurant v. Boland, 282 N.Y. 256, 274). The enforcement procedures set forth in the commission's order thus are the remaining issues for consideration.
The court approaches this matter not simply as litigation between private parties, but rather views the instant proceedings as raising vital matters filled with greatest public concern. The issue herein, involving the development of nondiscriminatory shop-training programs, cannot be approached strictly within the conventional confines of an adversary proceeding. The people of this State, as well as groups throughout the country, are searching for guidelines in the handling of this volatile problem. To that end, the court enlisted the co-operation of the parties.
The court arranged conferences with all parties and governmental agencies concerned, in the hope that the desirable objectives might be achieved by conciliation and agreement rather than solely by force of law. Numerous and extended conferences were held throughout the Summer in an attempt to achieve the adoption of acceptable standards for an apprentice training program which would carry out the spirit and the intent of the law against discrimination (Executive Law, art. 15) and the principles of equality which are fundamental to both our Federal and State Constitutions and systems of law. Represented and participating at the conferences were the commission, the employers, the union officials involved, the Industrial Commissioner and the Attorney-General. From time to time each of the parties requested a conference with the court, jointly or severally, while the standards for the joint apprenticeship program consonant with the court's directions were being formulated.
This is in keeping with the spirit of the law against discrimination, which, rather than providing for the usual procedures for review of administrative agency determinations (see CPLR art. 78), has incorporated provisions giving the Supreme Court complete jurisdiction of the proceeding and the power to grant such temporary or permanent relief as it deems just and proper (see Right to Equal Treatment: Administrative Enforcement of Antidiscrimination Legislation, 74 Harv. L. Rev. 526 et seq.).
From the inception of these proceedings and conferences, the court advised the parties that it could not recognize any plan as acceptable unless it truly afforded every applicant for admission to the apprenticeship program equal opportunity, nor would any plan be approved that did not abolish the existing practice of favoritism because of family affiliation, or did not provide for a complete and fair review procedure, or made it economically difficult for an applicant to qualify, or incorporated unreasonable educational requirements, or which in any other way would prevent equal opportunity under objective standards or selection on any basis other than the basis of qualification alone.
The court recognized that the issue before it involved the foundations of our democracy. Judicial decisions, legislative enactments, and events in the world outside the courtroom demonstrate that today's crucial testing ground for the American system of democracy is in the area of equal rights for its Negro citizens. Equality for our minority groups — the right to equal job opportunity, the right to equal educational opportunities, the right to equal housing opportunities, and the right to vote — is the essence of democracy today. Without it our democracy falls short of securing fundamental human rights for all citizens. Unless every citizen enjoys all the rights of freedom, our democracy becomes anemic. Anemic democracy is nonexistent democracy. There must be a moral awareness and a greater concern for human rights and dignity and the dignity of man. Industry, labor, government at all levels, and the public at large must embrace this basic concept.
See, e.g., Brown v. Board of Educ., 347 U.S. 483 (State imposed segregated public schools); Shelley v. Kraemer, 334 U.S. 1 (racial restrictive covenants); Burton v. Wilmington Park Auth., 365 U.S. 715 (restaurant); State Athletic Comm. v. Dorsey, 359 U.S. 533 (athletic contests); Terry v. Adams, 345 U.S. 461 (political organization primary); Gomillion v. Lightfoot, 364 U.S. 339 (geographic redistricting of municipal voting areas); Johnson v. Virginia, 373 U.S. 61 (State compelled segregation in courtroom); Conley v. Gibson, 355 U.S. 41 (discrimination in violation of Railway Labor Act).
Civil Rights Act of 1964, U.S.P.L. 88-352, 78 U.S. Stat. 241 et seq.; N.Y.L. 1964, ch. 948, amd. Executive Law and Labor Law, see infra. U.S.P.L. No. 452 of 88th Cong. ["anti-poverty law" — Aug., 1964].
The legal profession has recognized the urgency of achieving racial equality in conformity with law and order. As President Johnson has recently said: "The denial of rights invites increased disorder and violence and those who would hold back progress toward equality and at the same time promise racial peace are deluding themselves and deluding the people. Orderly progress, exact enforcement of the law are the only paths to an end of racial strife." (Address to the American Bar Association, Aug. 12, 1964.)
"The thrust for implementation of Negroes' rights to jobs, education and housing remains the most urgent domestic issue of 1964. It was dramatized in the summer of 1963 by the `March on Washington', and the summer of 1964 promises to produce a variety of civil rights activity, both in the South and in the North.
"The New York State Bar Association considers this a strategic time to express some basic principles for guidance of lawyers and other citizens in meeting the problem. All our human and property rights depend on a system of laws which are to be obeyed. Flaunting any law weakens the grounds of all those rights. New York State has been a pioneer in legal protection of the rights of minorities. There are correlative obligations; on the community, to assure the achievement of racial equality in conformity with law, and on minority groups to conform with law and order in voicing their demands for effective equality.
"The first basic principle is that the achievement of racial equality requires the urgent efforts of the entire community. One hundred years after the Emancipation Proclamation, and ten years after the school segregation decision, there are still many areas of our life where patterns of segregation remain. Anti-bias housing laws still fall short of permitting the dispersal of minority groups from segregated areas in both urban and suburban communities. Steps to provide true equality of educational opportunity are proceeding slowly, and will require vast sums of money, which may necessitate additional taxes on all our citizens. The opening of new employment opportunities for Negroes has proceeded slowly. There is need for much wider channels of communication, so that the community may be fully aware of minorities' problems, and the minorities may be kept informed of the efforts which are being made to implement their rights.
"The second basic principle is that demands for racial equality should be expressed in conformity with law and order. Camping in government or business offices, blocking traffic, or like wilful obstructions, are tactics which we believe both bespeak and beget disrespect for law — a disrespect which is singularly antithetical to the goal of equal rights for all. Such tactics are unnecessary in New York State, where the law imposes virtually no obstacles to peaceful protest against social evils, the courts act impartially, the ballot is open equally to all, and public officials are available to all persons asserting grievances. Moreover, demonstrations which interfere with the civil rights of others are not, we suggest, the best way to achieve equality of treatment. Ideally, the common resolve to promote racial justice should not be prejudiced by any misconduct of civil rights advocates. It is a fact of life that demonstrations which violate the rights of others frequently lose friends and alienate the support of many persons of good will. Frustrations caused by delay in reaching full equality do not justify resort to violence or lawbreaking.
"The third basic principle is that lawyers should lead in assuring the legal rights of all citizens. They are equipped by training, experience and skill to resolve disputes on a basis of reasonable adjustment, rather than emotion and violence, but they must undertake more active roles both individually and in association than heretofore. We commend the efforts of the Lawyers' Committee for Civil Rights Under Law, to resolve the nation's racial problems, and we urge all local bar associations to study what needs to be done in their own areas, and to furnish leadership in accomplishing it. The Lawyers' Committee urges local bar aid in two particular fields — establishing bi-racial committees to seek solutions to civil rights problems, and seeing that all persons in civil rights controversies can obtain competent legal counsel. When a citizen takes the law into his own hands by wilfully violating it, the result is nothing less than anarchy and must never be condoned by an emotional misjudgment that the end justifies the means. Resentment of illegal demonstrations should not be an excuse for relaxing the efforts of the white community to promote racial justice. Local bar associations can help clarify fundamental legal issues as a contribution to public discourse."
Statement unanimously adopted by the Executive Committee of the New York State Bar Association, June 15, 1964.
There is perhaps no right more important for the achievement of equality than the right to learn how to perform a job. The Court of Appeals has recently noted that discrimination in employment, with its consequent economic disparities upon which other kinds of discrimination thrive, is the "main key" to the problem of ending discrimination based on race and creed. ( Matter of Board of Higher Educ. of City of N.Y. v. Carter, 14 N.Y.2d 138. ) Denial of the right to be trained in many industries is tantamount to denial of employment. Discrimination based upon race which effectively excludes a minority from the right to be employed in a particular industry has been condemned by the courts. (See, e.g., Kelly v. Simons, 87 N.Y.S.2d 767, 770; James v. Marinship Corp., 25 Cal.2d 721; Todd v. Joint Apprenticeship Comm., 223 F. Supp. 12, revd. on other grounds 332 F.2d 243; cf. Gaynor v. Rockefeller, 21 A.D.2d 92, 100.)
One of the foremost leaders in the Negro movement for equality has stated that the struggle for rights is ultimately the "struggle for opportunities" and that the Negro does not want to be told that there is no place where he can be trained to handle a job. Martin Luther King, Jr., "Why We Can't Wait" (Harper Row, 1963), p. 149.
Independent of judicial precedent, this court enunciates the principle that it will not countenance discrimination in job training programs which exclude the victimized minority from employment in industry. As noted above, consideration of the issue herein must realistically acknowledge the keystone position of equality in job opportunity (and as a prerequisite thereof equality in job training and apprenticeship opportunities) for achievement of full equality required in our democracy. The best schooling in the world can lead only to frustration if it does not lead to a decent job; equal access to the best restaurants or residential areas is meaningless if there is no money to pay the going price; full right to participate in public life is small comfort if one's private life is impoverished.
In 1959 unemployment averages for whites were at a level of 4.6% while for nonwhites the averages were as high as 11.5%. This disparity in unemployment rates has been attributed to the inadequate participation of Negroes in apprenticeship training. The Economic Situation for Negroes in the United States, 1960 Report by U.S. Dept. of Labor. — 25% of the male Negro teenagers who are in the labor force are unemployed. [Unpublished Gov't statistics Aug. 22, 1964.]
The court notes that the history of the American labor movement reveals a continuing concern by its major branches and spokesmen for the achieving of equality for all. The concern of American labor for equality has increased with the passing years. Particularly relevant to the instant case has been the attention that the labor movement has given to the problem of discrimination in apprenticeship programs. George Meany, President of the AFL-CIO, declared before a Special Subcommittee of the House Committee on Education and Labor in 1961: "What we need in this country is genuine equality of opportunity for all citizens regardless of race, creed, color or national origin. Let's grant that apprenticeships are a problem; fine, let's act on that problem. But apprenticeship is only a part of a much broader problem."
a. As early as 1866, at the convention of the National Labor Congress, it was said that if the union "be misled by prejudice or passion as to refuse to aid the spread of union principles among our fellow toilers, we would be untrue to them * * * to ourselves * * * If these general principles be correct, we must seek cooperation of the African race in America." A.C. Cameron, "The Address of The National Labor Congress to the Workingmen of the United States." (Reprinted in Commons, et al., Documentary History of American Society, vol. 9, pp. 141-168.)
b. One year later, Uriah Stephens, of the Knights of Labor, the forerunner of the American Federation of Labor, declared that he could see ahead of him "an organization * * * that will include men and women of every craft, creed and color." (Commons, et al., vol. 2, p. 167.)
United States Cong. House Comm. on Educ. and Labor, Equal Opportunity in Apprenticeship Program Hearing, 87th Cong., 1st Sess. (Aug. 1961), on H.R. 8219.
The model union pledge, signed in 1962 by 116 national unions and 300 directly chartered labor unions, representing about 11 million workers, declares in unambiguous terms: "We shall seek agreement from management to write into joint apprenticeship training programs in which we participate a non-discrimination clause in regard to admission and conditions of employment of apprentices and shall see that this clause is administered in such a way as to give full and effective application of non-discrimination throughout all such training."
In June of 1963, the general presidents of the unions affiliated with the Building and Construction Trades Department, AFL-CIO, adopted a program which included the following provision: "4. With regard to the application for, or employment of apprentices, local unions shall accept and refer such applicants in accordance with their qualifications and there shall be no discrimination as to race, creed, color or national origin".
Press Release of the Building and Construction Trades Dept., AFL-CIO, June 21, 1963, p. 2.
Nevertheless, discrimination does exist. It is with the effective and wise eradication of the manifestations of unwarranted prejudice in the apprenticeship program in the sheet metal industry in the City of New York that this court is concerned in the instant proceeding.
a. Woll, "Labor Looks at Equal Rights in Employment" 24 Fed. Bar Journal, No. 1, page 93 (Winter 1964).
b. Barkin, The Decline of the Labor Movement, 50-51 (1961).
c. President Meany has noted: "It would be futile to pretend that the 13 1/2 million members of the AFL-CIO unions are without exception devoted to the cause of civil rights. They are a cross-section of America, and they reflect the diversity of the nation. But just as truly they reflect the American consensus. That consensus, expressed by AFL-CIO conventions and by conventions of the affiliated national and international unions, is the basis for the AFL-CIO's determination to abolish all forms of discrimination." "Equal Rights for All", p. 4 (AFL-CIO) Publication No. 133.
With respect to the plan proposed, Local 28 made a forceful presentation in favor of attaching some preference to those applicants who are sons or sons-in-law of present or deceased members of the Union. The court recognizes that the practice of giving some preference to applicants with filial ties to union members is widespread and dates back to the very inception of craft unions when craftsmen first joined together in guilds. The historic, economic and social reasons for the practice of filial preference and its beneficial effects have been urged by the union and examined by the court.
Under the realities of today's society, the guarantee of equal protection of the laws and the prohibition against discrimination contained in section 11 of article I of the New York Constitution requires that this court refuse to sanction any plan which could be used, directly or indirectly, to discriminate against any person on the basis of race, color, creed or national origin. The 1964 amendments to the Executive Law and Labor Law apply this principle directly to the area before the court — apprenticeship training programs. The court concludes that provision in this apprenticeship training program for preference or credit because of filial relation would be illegal and unconstitutional and so advised the parties and the Industrial Commissioner.
In addition to the overriding constitutional and legislative declarations of equality, the court believes that filial preference is contrary to modern day societal objectives concerning job qualifications. No lawyer or doctor today would expect his son to receive preference by reason of family relationship in applying for admission to the Bar or for a medical license. Admission to a profession or industry based exclusively upon the applicant's qualifications to perform in the profession or industry as determined by objective criteria is to be encouraged.
The court was also concerned that the original proposed plan did not provide for adequate review procedures to an applicant, and directed appropriate amendments.
In the fourth completed draft, the parties submitted a new plan whereby an applicant, after he has exhausted his right to review before the Joint Apprenticeship Committee, may obtain further review by a member of a panel chosen by the Presiding Justice of the Appellate Division of the First Department. After consultation, the Presiding Justice graciously consented to perform this function.
The court was also concerned with the fact that educational standards higher than were reasonably necessary might be adopted. To this end, the court suggested a graduated system which would be fair to minority groups and at the same time discourage high school drop-outs, while nevertheless meeting the minimum scholastic requirements for an apprenticeship trainee. Under the court's suggestion, an apprenticeship trainee for the 1965-66 programs would be required to have completed two years of high school work or its equivalent; for the 1967-68 programs, a three-year requirement or its equivalent would be necessary, and thereafter a completed high school course or its equivalent would be mandatory. The plan as finally adopted is sufficiently flexible to meet these suggestions, and if need be will be supplemented in the final order of the court.
The question of applicant fees was also considered. In order to avert an economic barrier, it was urged by the court that such fees be kept to a minimum or even eliminated. However, it is recognized that administrative and medical examination costs might make it necessary to require an apprenticeship applicant to defray some of the expenses. Accordingly, the accepted plan adopted a provision whereby such cost would never exceed the amount of $10.
The problem pertaining to the 430 individuals on the present apprenticeship list was resolved by providing that they and all other applicants shall be accorded equal treatment in determining their eligibility to be appointed to the apprenticeship training program and be judged by the same set of objective standards. Further, it is provided that no preferential treatment shall be given to either those who apply for admission de novo or those who have applied heretofore.
Another question which remained before the court is whether the individual respondents acted as individuals or solely in their representative capacities. This is important in view of the possible sanctions. Were it not for the complete co-operation given by all of the individuals to the establishment of a nondiscriminatory joint apprenticeship training program, the court might well have found that the record was susceptible of sustaining the finding holding the individuals responsible in their individual capacities as well as in their representative capacities. The court, however, is not unaware of the private economic and social forces that operate to compel individuals to follow the course of least resistance, frequently on the theory that it is only committee responsibility and not individual responsibility which they assume. In a situation such as the present one, none of the employer members of the committee receives compensation for his services, nor do they as individuals benefit from the committee responsibility which they carry out. The court recognizes that industry/union committees are desirable, if not vital, to the harmonious working out of industry wide labor problems. The court is convinced that the individual respondents are in favor of the underlying theory of equality of opportunity in job training. The court finds that the representatives of industry and labor act both in their individual as well as in their representative capacities. However, under the circumstances of the entire case, the court will not affirm those findings of the commission against the individuals themselves as to their prior conduct and past acts.
There were other difficulties and problems presented by the original and intermediate plans which need not be gone into in any further detail. The final plan (fourth completed draft) presented by the Joint Apprenticeship Committee and approved by the commission is set forth in full in Appendix "A" to this decision.
In addition to the matters heretofore alluded to, the final plan generally provides for the selection of apprentices without regard to race, creed, color, national origin, or physical or psychological handicaps provided the latter two do not interfere with the applicant's ability to perform. Apprentices must be selected on the basis of qualifications alone, and all applicants will be afforded equal opportunity under the adopted standards. A rejected applicant is to be notified and the reasons given therefor with the right to appeal. A rejected applicant may reapply. The age prerequisites are 18 to 23 with some modifications. Medical and physical examinations are required. Aptitude tests are to be given by the New York City Testing Center or equivalent testing center. Two hundred per cent of the number of apprentices ultimately to be appointed who have achieved the highest rating in an independently conducted aptitude test will be interviewed. The interviewing board is to consist equally of representatives of labor and industry. The maximum point score one can achieve on the test will be 750, and on the interview 150. Appointments will be made solely and exclusively on the point score. The term of apprenticeship will be four years (approximately 7,000 hours) of reasonably continuous employment, divided into eight periods. On-the-job instruction will be given in specified areas, and trainees will be required to attend formal classes one day every second week with pay. Tuition fees for such instruction are provided for, as well as periodic examinations. The plan annexed hereto also embodies other aspects. Not specifically included in the plan, but agreed to by the parties is a requirement for publicizing the program in the schools and through other channels and media making it clear that it is open to all who are interested and can meet the objective standards. The publicity requirements will be incorporated in the order to be settled hereon. The next apprenticeship class will be in January or February, 1965, and be under the plan adopted herein.
The plan herein adopted was the result of the unusual co-operative spirit on the part of the commission, industry, union officials, their respective counsel and the Attorney-General. The court expresses its appreciation to the aforenamed parties. The court accepts the plan because it is enlightened, progressive and in accordance with the principles of nondiscrimination. equality of opportunity and on the basis of qualification alone under objective standards.
It is hopefully expected from the effective implementation of this program a truly nondiscriminating union will emerge. A rare opportunity is afforded to this industry to serve as a model for others, and, by rigid adherence to the adopted standards, itself become a standard of morality and brotherhood, equal opportunity and democracy.
The objective standards herein adopted for the apprenticeship program in the sheet metal industry of New York City may well be a model for State-wide utilization by the New York State Industrial Commissioner, who is mandated to promulgate rules and regulations implementing chapter 948 of the Laws of 1964.
The Industrial Commissioner is granted power to promulgate such rules by section 811 Lab. of the Labor Law.
Amendments to the Executive Law and the Labor Law of New York in relation to equality of opportunity in apprenticeship training will become effective on the 1st of September, 1964. (L. 1964, ch. 948.) Section 296 Exec. of the Executive Law is amended by adding an express provision that it shall be an unlawful discriminatory practice for any joint labor management committee controlling apprentice training programs: "(a) To select persons for an apprentice training program registered with the State of New York on any basis other than their qualifications, as determined by objective criteria which permit review."
Subdivision 5 of section 815 Lab. of the Labor Law has been concurrently amended so as to provide that suggested standards for apprenticeship agreements include: "5. Provision that apprentices shall be selected on the basis of qualifications alone, as determined by objective criteria which permit review and without any direct or indirect limitation, specification or discrimination as to race, creed, color or national origin."
These two legislative amendments along with the enactment of title 7 (Equal Employment Opportunity) of the Civil Rights Act of 1964 ( 78 Stat. 241 et seq., Public Law 88-352) which makes it an unlawful employment practice to discriminate on the basis of race in any apprenticeship program, evince the fact that apprentice systems have not heretofore been dedicated to the principle of equality. Both the State and Federal legislation is directed to the same end of abolishing discrimination in the apprentice programs.
In summary, the commission's findings and affirmative provisions of its order are adopted except as to finding No. 66 as modified and as to the cease and desist order by striking the second decretal paragraph as heretofore indicated in this opinion.
At the request of the parties, the court is retaining jurisdiction. An interim order including findings consistent with this opinion will be settled hereon.
(Supplemental decision, November 6, 1964)
Since the decision of this court, the State Industrial Commissioner has issued "Apprentice Training Regulations" (12 N.Y. C R R Part 600), effective September 1, 1964, which in many areas embrace the principles set forth in the original decision and Appendix "A" annexed thereto.
The parties have accordingly amended Appendix "A" pertaining to the standards established by the Joint Apprenticeship Committee so as to provide that the Apprentice Training Regulations of the State Labor Department and any amendments thereto are to apply insofar as they are not inconsistent with the decision of the court and the order signed and entered simultaneously herewith.
In addition, Appendix "A" has been supplemented so as to reflect additional requirements as enunciated in the original decision, clarify and group the provisions pertaining to notification of acceptance, rejection, appeal and review procedures, and incorporate other appropriate changes.
The selection of the first apprenticeship class under the newly adopted standards shall take place within a reasonable period of time.
The standards established by the Joint Apprenticeship Committee, dated October 14, 1964, shall replace and supersede, as Appendix "A" to the decision-in-chief herein, the standards dated August 12, 1964 and are annexed hereto and made part of this decision.
APPENDIX "A"
CORRECTED
FIFTH DRAFT
-of-
STANDARDS FOR THE ADMISSION OF APPRENTICES
ESTABLISHED BY
THE JOINT APPRENTICESHIP COMMITTEE TRUST
FOR THE
SHEET METAL INDUSTRY OF NEW YORK CITY, N Y
PURSUANT TO
THE "AGREEMENT"
AND
DECLARATION OF TRUST
AND
THE RULES AND REGULATIONS
ADOPTED THEREUNDER BY THE TRUSTEES
PART I
PURPOSES, INTENT AND PROCEDURE
A. NONDISCRIMINATORY PROGRAM — Selection of apprentices will be made subject to the objective standards herein provided. Apprentices will be selected on the basis of qualifications alone, and all applicants will be afforded equal opportunity under these standards without regard to race, creed, color, national origin or physical or psychological handicaps, provided however, that if the physical or psychological handicaps affect the applicant's ability to perform the manual labors required by the trade, the applicant will not be accepted.
FORMS — Applications shall be submitted on a form designated by the Committee which shall incorporate the standards herein set forth.
B. APPLICATIONS — All applicants who heretofore have applied, and all applicants who may hereafter apply for apprenticeship training shall be accorded equality of treatment in determining their eligibility to be appointed to the apprentice training program and shall be judged by the same set of objective standards. No preference in treatment shall be given between those who apply for admission de novo and those who have applied heretofore.
C. REAPPLICATION OF REJECTEES — Applicants who have been rejected may re-apply at any time, so long as they satisfy the age, educational and physical requirements.
PART II
QUALIFICATIONS.
A. NOTIFICATION OF REQUIREMENTS — A written statement of the qualifications for admission will be given to each applicant prior to the time when each applicant is first required to demonstrate his qualifications.
B. AGE PREREQUISITE — Applicants for Apprenticeship Training shall:
(a) be not less than 18 years of age, nor more than 23; but applicants who are 17 1/2 years of age, but less than 18 at date of designation of successful apprenticeship applicants to the program may be considered for apprenticeship from and after the date they reach their 18th birthday. Service in the Armed Forces may extend the age limit to 25 years of age, but in no event shall the age limit be extended for more than the period of time spent in the Armed Forces.
(b) HIGH SCHOOL PREREQUISITE — Applicants who file applications for admission to the Apprenticeship Training Program during the years 1965-1966 shall have completed satisfactorily not less than two years of high school study; and applicants who file applications for admission to the Apprenticeship Training Program during the years 1967-1968 shall have completed satisfactorily not less than three years of high school study; and
Applicants who file applications for admission to the Apprenticeship Training Program during 1969 and thereafter, shall have graduated from high school or have an equivalency certificate showing completion of high school studies.
(c) PHYSICAL EMOTIONAL PREREQUISITE — Be physically fit and emotionally stable for work in the trade. Each applicant who meets the age, educational and physical requirements shall be given an aptitude test and based upon the aptitude scores, personal interviews will be granted to the number determined in accordance with the formula hereinafter set forth.
C. ESTABLISHMENT OF QUALIFICATIONS: Qualifications shall be established by:
1. Certificate of age from Local Board of Education or certified photostat of birth certificate (attach to application).
2. Applicants for admission to apprenticeship training during the years 1965-1966, — a school record attesting to the applicant's satisfactory completion of at least two years of high school study.
3. Applicants for admission to apprenticeship training during the years 1967-1968 — a school record attesting to the applicant's satisfactory completion of at least three years of high school study.
4. Applicants for admission to apprenticeship training during 1969 or thereafter — a diploma or other proof of graduation from an accredited high school, or an equivalency certificate establishing equivalent education.
5. PROOF OF PHYSICAL FITNESS — A medical examination pursuant to the form herein set forth, shall be given at a time, place and by a physician designated by the Committee. Physical standards, based upon requirements of the trade, shall be established and revised, from time to time, by a Medical Advisory Panel appointed by the Committee.
D. APTITUDE TESTING. Applicants who satisfy the age, educational and physical requirements will be eligible for Aptitude tests to be given at a time and place designated by the Committee by the New York University Testing and Advisement Center, Washington Square East, New York City or by equivalent University Testing Center.
Test 1. Mental alertness.
2. Mechanical reasoning.
3. Space relations.
4. Mathematical Computations and Concepts.
5. Mathematical Analysis and problem solving.
Aptitude tests will be graded on a maximum score for all five tests to be 750 points.
E. INTERVIEWS — 200% of the number of apprentices to be appointed who achieved the highest aptitude test scores shall be given a personal interview at a time and place and before a person or persons designated by the Committee. The interview procedures as established by the Committee, shall uniformly be applied to each applicant eligible for interview.
F. SELECTION SOLELY BY SCORES ATTAINED — Apprentices shall be appointed in order of rank, without regard to race, creed, color or national origin, after they have displayed qualifications in sufficient measure to meet minimum standards established by the committee.
G. INTERVIEW BOARD — Examining personnel for interview will be 50% representation from each of labor and management. Each interviewer will grade applicant individually in accordance with specific maximum point allocations for various categories.
H. (1) MAXIMUM TOTAL SCORES — Total maximum score for any applicant shall be:Tests ............. 750 points Interviews ........ 150 points ____ 900 points
(2) FINAL SELECTION — The final selection of applicants shall be based on the determination of the total number of apprentices to be appointed.
I. NOTIFICATION TO APPLICANTS — Each applicant, at least 10 days prior to the commencement of the apprenticeship term for which he has applied, shall be:
1. Given written notification as to whether or not he has qualified for placement on the applicant list and, if he has so qualified, his ranking among the applicants. Further, such notification shall inform each qualified applicant whether or not he has been appointed and if not, the basis of nonappointment. The notification shall be sent by prepaid first class mail and the committee shall obtain from the postmaster, or his representative, a certificate of mailing showing the name and address of the addressee of the letter of notification.
2. Such notification shall set forth the terms of any appellate procedure afforded by the committee. Such appellate procedure shall provide for final determination and written notification thereof within 30 days of the appeal.
3. After the commencement of the term of an apprenticeship program, the committee may appoint available additional or replacement apprentices from the list in the order of their ranking thereon. Notice of such appointment shall be in writing. No applicant on the list may be passed over because of unavailability unless his unavailability extends seven days after delivery of notice.
4. Complete records of the selection process shall be maintained by the committee for two years, or the life of the applicant list, whichever is greater, and shall be made available to the Industrial Commissioner upon request. Such records shall include copies of any written examinations taken by or documents submitted by or in connection with each applicant and a brief summary of each interview, if any, including the judgment of the interviewer for each applicant.
J. APPLICATION FEES — Costs of examining procedures — Applicants shall be required uniformly to pay to the Committee, at the time of filing applications, a reasonable fee not to exceed $10.00 to cover the expenses of the examinations and examining procedures.
K. NOTIFICATION OF REJECTION — Applicants who are not accepted because of failure at any stage of qualification to meet the requirements and standards herein provided shall be notified as provided by Paragraph "H" above, but within ten (10) days after the decision is made by the Committee and the reasons for rejection shall be set forth in the notice and each applicant shall have the right of appeal hereafter set forth.
L. (1) REVIEW AND APPEAL RIGHTS OF REJECTEES. Any applicant who has been notified of his rejection shall have the right to request, in writing, sent by mail or presented to the Joint Apprenticeship Committee at 350 Broadway, New York, New York, within ten (10) days after receipt of notice of rejection, a review of his case by the Joint Apprenticeship Committee. If a hearing is requested, it shall be held at the next regularly scheduled meeting of the Joint Apprenticeship Committee, but not later than thirty (30) days, after receipt of such review request.
(2) If the Joint Apprenticeship Committee sustains the rejection it shall notify the applicant thereof and shall further advise him of his right to obtain a review of his case by a member of a panel referred to in this subparagraph. The applicant may, within ten (10) days after receipt of the written decision of the Joint Apprenticeship Committee request a review by a member of a panel to be appointed by the Presiding Justice of the Appellate Division of the Supreme Court, First Department.
(3) Any appeal shall be prosecuted, and the appeals officer shall be requested to render his decision, with all due speed, to the end that if the applicant's appeal is sustained and he is ordered installed in apprenticeship training, he may be installed in the class for which he applied.
PART III
APPRENTICESHIP TRAINING PROGRAM
1. Hiring Apprentices. — Employers desiring apprentices shall make written application for said apprentices to the Joint Apprenticeship Committee.
2. Obligation of Apprentice — The applicant must read and sign the following obligations and file same with the Joint Apprenticeship Committee along with his application:
"I, the undersigned, having made application to be enrolled as an apprentice with the Joint Apprenticeship Committee, and, having read the standards formulated by said committee providing for training of apprentices, and understanding same, and all the conditions therein contained, do hereby agree to serve such time, and perform such manual training, and study such subjects as the committee may deem necessary to enable me to become a duly qualified journeyman sheet metal worker."
3. Term of Apprenticeship — The term of apprenticeship shall be not less than four years (approximately 7,000 hours) of reasonably continuous employment. It shall be divided into eight (8) periods of 875 hours each. The agreement between the Joint Apprenticeship Committee and any apprentice may be cancelled at any time by the Joint Apprenticeship Committee for good cause.
4. Work Experience — During the term of apprenticeship, the sheet metal apprentice may be given such instruction and experience in all branches of his trade as is necessary to develop a practical and skilled journeyman mechanic. He may also be given training in safety and safe working practices for shop and field. He may be given training in the operation of all machinery and be given operating experience thereon. He may be given training, and experience in working with all materials and substitutes which may be used in the shop or on the job during the term of his apprenticeship.
5. Schedule of Work Processes for Sheet Metal Apprentice Training:
General Sheet Metal Work.
Ventilating and Air Conditioning.
Specialty Installation and Specialty Work.
Kitchen Equipment Work and Installation.
Kalamein Work and Installation.
Metal Door, Door Buck, Window Manufacturing and Installation.
School training as outlined under School Curriculum; first term through eighth term inclusive.
Approximately 7,000 hours — total. Eight terms or four years' training.
In the outline above, he may be given such training over the period of his apprenticeship as electric and gas welding, burning and brazing that is necessary for a sheet metal journeyman.
PART IV
RELATED SCHOOL INSTRUCTION
SCHOOL ATTENDANCE AND WAGES
(a) In addition to the training received on the job, an apprentice shall attend school one day each second week with pay. However, if the apprentice does not report for work the last working day before the first working day after his school day, he shall not receive payment for his day at school. Time spent in school shall be a part of the four-year apprenticeship. Wages for a full day's attendance at school shall be eight hours straight time pay at the appropriate rate for the apprentices' term rating.
REQUIREMENTS FOR STUDY
(b) The apprentice shall take such subjects for study as the Joint Apprenticeship Committee shall require.
FAILURE TO FULFILL OBLIGATION
(c) In case of failure on the part of any apprentice to fulfill his obligation concerning school attendance, minimum scholastic achievements, the Joint Apprenticeship Committee may suspend or revoke his participation in the training program and the Employer shall carry out the instructions of the Joint Apprenticeship Committee in this respect.
LIMITED ATTENDANCE
(d) The Joint Apprenticeship Committee will limit attendance at courses for sheet metal apprentices to those who are actually apprenticed in the sheet metal trade in accordance with these standards.
(e) The related classroom instruction shall be under the direction of the Joint Apprenticeship Committee which shall determine the subjects to be taught and any other problems pertaining to related education of the sheet metal apprentice.
TRAINING IN TRADE SPECIALTIES
(f) The Joint Apprenticeship Committee may establish in accordance with the requirements of industry, training and upgrading programs for future draftsmen, foremen, and other specialists as required by the trade.
It is the purpose, intent and responsibility of the Joint Apprenticeship Committee continuously to upgrade this program to increase the curriculum and the school time requirements as facilities and finances permit.
PART V
MISCELLANEOUS PROVISIONS APPLICABLE TO THE TRAINING PROGRAM AS APPLICABLE TO THE APPRENTICES
1. Apprentice Work Card.
WORK CARD — The apprentice shall carry an apprenticeship card signed by the Chairman and Secretary of the Joint Apprenticeship Committee. This card shall designate the contractor to whom the apprentice is assigned and the term of service.
The apprentice shall pay the tuition fees as established by the Joint Apprenticeship Committee to the person designated by the said Joint Apprenticeship Committee to collect tuition fees.
EXAMINATIONS
2. Periodic Examinations.
At the expiration of each six-month period each employer having in his employment one or more apprentices shall report to the Joint Apprenticeship Committee as to each apprentice's progress in his work, on forms to be submitted to the employer by the Joint Apprenticeship Committee; and the teachers shall report on the attendance and progress of each apprentice in his school work.
3. Apprentice Record Card.
A master record of the apprentices' work experience and related instruction shall be kept by the Joint Apprenticeship Committee, this information to be furnished by the employer and the school instructors. The record cards and all data pertaining to the Apprenticeship Training Program shall be accessible to the members of the committee at all times.
WORKING HOURS
4. (a) The hours of work for the apprentices should be the same as those of a journeyman for the shop or job on which the apprentice is working.
(b) The daytime school session for apprentices shall be eight hours attendance every second week throughout the year as designated by the Joint Apprenticeship Committee. The Joint Apprenticeship Committee reserves the right to have apprentices make up lost school time. Apprentices will not be paid for make up school time.
WAGES
5. (a) A graduated wage scale for apprentices shall be established and maintained on a percentage basis of the established wage rates for journeymen sheet metal workers, as follows:First year ......................... first half 40% second half 45% Second year ........................ first half 50% second half 55% Third year ......................... first half 60% second half 65% Fourth year ........................ first half 70% second half 80% PROBATION
6. (a) Every apprentice shall be deemed on probation during the full four-year term of his apprenticeship. If during the probationary period, the contractor finds the apprentice is not suitable or unable to learn the trade, he shall notify the Joint Apprenticeship Committee.
DIVERSITY OF TRAINING
(b) Where is it impossible for one contractor to provide the diversity of experience necessary to give an apprentice all-round instruction in the trade, the Joint Apprenticeship Committee may transfer him, temporarily or permanently, to another contractor, in which case the contractor to whom the apprentice is assigned will assume all the obligations of the original contractor. In no case, however, will an apprentice be transferred to a shop where there is a labor dispute.
NONVESTING
7. Nothing contained in this agreement and nothing deriving from the appointment of any applicant to the status of apprentice shall be deemed or construed to vest in the apprentice any rights or remedies against his employer or the Joint Apprenticeship Committee or Local 28, or any individual member of the Committee; his rights, and remedies being expressly limited to the right to receive wages for hours actually worked or spent at school.
PART VI
FORMS AND CURRICULUM
All forms and curricula adopted by the Joint Apprenticeship Committee are deemed incorporated herein by reference.
PART VII
MISCELLANEOUS
(a) The Rules and Regulations of the Industrial Commissioner of the State of New York heretofore adopted or which may hereafter be adopted by him, insofar as they are not inconsistent with the within Objective Standards governing the Admission of Apprentices and of the Order of the Court approving same, shall be deemed adopted into, and made part of, the within Objective Standards without specific inclusion.
(b) Any requirement for the advanced publication of notice of the intention of the Committee to accept applicants for new classes to be formed by the Committee, required to be given to any person or persons, or to any public body or bodies, by virtue of the provisions of any Federal or State law, or by virtue of the regulations of any governmental committee or officer having jurisdiction, shall be deemed incorporated into the within Objective Standards, and made a part hereof, without specific inclusion.
The foregoing Objective Standards were duly adopted by the Joint Apprenticeship Committee for the Sheet Metal Industry of New York, New York at a meeting of the aforesaid Joint Apprenticeship Committee held October 14th, 1964 to govern the admission of applicants to the Apprenticeship Training Program.
Dated: October 14th, 1964.
________________________________________________
________________________________________________
ATTESTATION
WE, the undersigned, the Trustees of the JOINT APPRENTICESHIP COMMITTEE TRUST for the Sheet Metal Industry of New York City, N Y DO HEREBY CERTIFY AND ATTEST that at a meeting of the JOINT APPRENTICESHIP COMMITTEE TRUST held at the premises of the Building Trades Employers' Association, 711 Third Avenue, New York City, October 14th, 1964, the foregoing Objective Standards to govern the admission of apprentices into apprenticeship training was duly adopted by unanimous vote of the Trustees.
This attestation is expected to be signed in counterparts by the respective Trustees and, when so signed, shall constitute a joint and several attestation of adoption of the Objective Standards by the Trustees.
Dated: October 14th, 1964.
EMPLOYER TRUSTEES UNION TRUSTEES ________________________ ________________________
________________________ ________________________
(Supplemental decision, November 24, 1964)
In implementation of the order of this court dated November 6, 1964, the parties have reported that they have agreed upon the institution of an apprenticeship class of 65 to commence not later than March 15, 1965. A stipulation to that effect has been submitted, approved by the court, and marked "So Ordered". The foregoing is reasonably fair and will generally effectuate the purposes of the order herein. It is also expected that henceforth new classes will be instituted on a periodic basis and will generally be selected to effectuate the public policy of this State as reflected in the order herein entered and that the union, employers, joint committee, and governmental agencies herein involved, will do their utmost to achieve and promote the objectives of the order. It is no longer the exclusive function of unions and employers to carry out apprenticeship programs. Governmental agencies charged with responsibility of enforcement of fair employment practices and equal economic opportunities for the general public, cannot be idle bystanders, but must actively participate to effectively regulate apprenticeship programs. Such governmental activities cannot be deemed undue, unreasonable, or unnecessary interference in labor-management matters.
This first apprenticeship class under the court order is the culmination of long conferences and arduous effort. The court expresses its appreciation to the parties and their counsel for the co-operative spirit demonstrated.