The opinion of the court was delivered by: BRODERICK
In this class action suit, the named plaintiffs, five black construction workers and an organizational plaintiff, Resurrection, Inc., seek declaratory and injunctive relief to compel the defendants, federal agencies and officials, to achieve the minority worker utilization goals of Executive Order 11246 (hereinafter "E.O. 11246") in connection with affirmative action in Philadelphia construction trades. In particular, plaintiffs seek to have this Court order the defendants to ensure construction contractor compliance with the procedures of the "Philadelphia Plan" designed to achieve equal employment opportunity for minority construction workers in connection with federally assisted construction in this area, and to fulfill the goals of the Plan.
This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1343 (civil rights), 28 U.S.C. § 1361 (mandamus) and 5 U.S.C. §§ 701, et seq. (the Administrative Procedure Act). On July 31, 1980, plaintiff class was certified pursuant to Fed.R.Civ.P. 23(b)(1) and (b)(2) on behalf of all black construction workers and black persons qualified for and seeking construction work in the Philadelphia area who may have, due to defendants' alleged failure to enforce E.O. 11246, and the requirements of the Philadelphia Plan, lost or may lose employment opportunity in federally assisted construction work in the Philadelphia metropolitan area. Trial was held before this Court sitting as a finder of fact. For the reasons hereinafter set forth, the Court must deny the relief sought by plaintiffs and enter judgment in favor of defendants.
I. The Background of This Litigation
Executive Order No. 11246, 30 Fed. Reg. 12319 (Sept. 24, 1965), 3 C.F.R., 1969 Comp. 133 was issued by former President Lyndon Johnson in 1965. The Executive Order requires all contractors seeking to do business with the federal government or participating in projects that receive federal assistance to include in their construction contracts specific provisions respecting fair employment practices. Section 202(1) of the Order provides
The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex or national origin.
However, until October of 1978, each federal agency administering contracts or federal aid for construction was responsible, in the first instance, for securing compliance. All low bidders on projects were reviewed for equal employment prior to the official award of the contract. In projects involving larger (more than 50 employees) contractors or larger (more than $50,000) expenditures, affirmative action plans were required of the contractor. The agency for whom the project was being built was responsible for making periodic checks to ascertain whether there was compliance with the affirmative action plan. These efforts were to be coordinated by OFCC. Where contractors failed to comply with the Order, the agency was authorized to suspend or cancel the contract, or to debar the contractor from future federal contracts. See generally Leiken, Preferential Treatment in the Skilled Building Trades: An Analysis of the Philadelphia Plan, 56 Cornell L. Rev. 84, 87-91 (1970); see also Comment, The Philadelphia Plan: A Study in the Dynamics of Executive Power, 39 U. Chicago L. Rev. 723, 725-26 (1972) (discussing history of executive orders dealing with discrimination which preceded E.O. 11246).
The Order empowers the Secretary of Labor to issue rules and regulations necessary and appropriate to achieve its purpose. On June 27, 1969 Assistant Secretary of Labor Arthur Fletcher issued an order implementing the Executive Order in the five-county Philadelphia area. The June 27, 1969 order, known popularly as the "Philadelphia Plan," required bidders, prior to the award of contracts, to submit "acceptable affirmative action" programs "which shall include specific goals of minority manpower utilization" for all contracts concerning federal or federally assisted projects whose total cost exceeded $500,000.
The June 27, 1969 Order also contained a finding that enforcement of the affirmative action requirement of E.O. 11246 had posed special problems in the construction trades. In these trades, contractors and subcontractors must hire a new group of employees for each job. In conducting such hiring, the contractors rely on craft unions as their prime source of labor. In many instances, craft unions comprise the sole source of labor for a given project. Historically, craft unions have provided such labor through the operation of hiring halls, which receive a contractor's request for labor and workers and fill this request with appropriately skilled workers who have reported to the hiring hall and made themselves available for work on that day. The June 27, 1969 Order noted that "because of the exclusionary practices of labor organizations, there traditionally has been only a small number of Negroes employed in [seven major craft] trades." The trades which the June 27, 1969 Order found to have historically excluded blacks were: ironworkers, plumbers and pipefitters, steamfitters, sheetmetal workers, electrical workers, elevator construction workers, and roofers and waterproofers. Later, the Secretary removed the roofers and waterproofers craft from the list of discriminatory craft unions.
In August, 1969, the Department of Labor held public hearings in Philadelphia pursuant to the Secretary's Order of June 29, 1969. On September 23, 1969, Assistant Labor Secretary Arthur Fletcher made findings regarding the factors heretofore noted and ordered that certain percentage ranges be established as the standards for minority manpower utilization for each of the designated trades in the Philadelphia area for the years 1970, 1971, 1972 and 1973. The Secretary's Order of September 23, 1969 further specified that on each invitation to bid for a federally funded construction project, each bidder would be required to further submit an affirmative action program. Specifically, the Order provided that
No bidder will be awarded a contract unless his affirmative action program contains goals falling within the ...