UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
December 7, 1982
RONALD TAYLOR, et al.
UNITED STATES DEPARTMENT OF LABOR, et al.
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.
The Order requires that the contract between a builder and the government, and all contracts between the contractor and subcontractors, contain this non-discrimination clause. The Labor Department's Office of Federal Contract Compliance (OFCC) was given responsibility for supervising the efforts of various federal agencies to obtain compliance with this portion of the order. Specifically, Section 201 of E.O. 11246 provides that the "Secretary of Labor shall be responsible for the administration of [the government contracts and federal assistance affirmative action requirements] of this Order and shall adopt such rules and regulations and issue such orders as he deems necessary and appropriate to achieve the purposes thereof."
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.
The June 27, 1969 Order provided that the Area Coordinator of the Office of Federal Contract Compliance, in conjunction with the federal contracting and administering agencies in the Philadelphia area, would determine definite standards for specific goals in a contractor's affirmative action programs. After such standards were determined, each bidder would be required to commit itself to specific goals for minority manpower utilization. The order set forth factors to be considered in determining definite standards, including: (1) the current extent of minority group participation in the trade; (2) the availability of minority group persons for employment in such trade; (3) the need for training programs in the area and/or the need to assure demand for those in or from existing training programs; (4) the impact of the program upon the existing labor force.
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 range set forth . . . above.
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The purpose of the contractor's specific goals as to minority manpower utilization is to meet his affirmative action obligation under the equal opportunity clause of the contract. This commitment is not intended and shall not be used to discriminate against any qualified applicant or employee. Whenever it comes to the bidder's attention that the goals are being used in a discriminatory manner, he must report it to the Area Coordinator of the Office of Federal Contract Compliance of the U.S. Department of Labor in order that appropriate sanction proceedings may be instituted.
* * *
The bidder agrees to keep such records and file such reports relating to the provisions of this Order as shall be required by the contracting or administering agency.
The Orders of June 7, 1969 and September 23, 1969 as modified by subsequent executive pronouncements supported by the presidential authority and directive of Executive Order 11246, became known as the "Philadelphia Plan." These orders cumulatively enunciated a policy of non-discrimination in federally financed construction in the area, set minority employment goals for contractors doing federal business in the Philadelphia area, and provided a procedure for encouraging and observing progress toward the attainment of the minority hiring goals set forth in the Plan. The legality of the Philadelphia Plan was upheld in Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159 (3d Cir. 1971) (affirming 311 F. Supp. 1002 (1970)); cert. denied, 404 U.S. 854, 30 L. Ed. 2d 95, 92 S. Ct. 98 (1971).
Both the June 7, 1969 order and the Order of September 23, 1969 provide that in the event a contractor has failed to meet the applicable minority manpower utilization goals, he will be given an opportunity to demonstrate that he has made every good faith effort to meet such goals.
On February 13, 1971, the Philadelphia Plan was amended to include all construction activities by contractors and subcontractors working on federally assisted construction sites. On April 7, 1978, the Department of Labor issued regulations which abolished the Philadelphia Plan as a separate regulation but established uniform equal employment opportunity requirements for all federal construction contractors (see 43 Fed. Reg. 14,888 (1978); 41 C.F.R. Part 60-4). These regulations, which became effective May 8, 1978, govern all contractors and subcontractors who have a federal or federally-assisted contract in excess of $10,000. On March 20, 1979, the Labor Department published goals for minority utilization in the operating engineers trade within the jurisdiction of Operating Engineers Local 542. The Department issued these goals on the basis of the findings of fact in Commonwealth of Pennsylvania v. Local Union 542 of the Operating Engineers, 469 F. Supp. 329 (E.D. Pa. 1978), aff'd, 648 F.2d 923 (1981), rev'd and remanded, 458 U.S. 375, 102 S. Ct. 3141, 73 L. Ed. 2d 835 (1982). The minority employment goal for metropolitan Philadelphia was 17.3%. On September 7, 1979, the Department of Labor issued a nation-wide proposed formula for determining the minority utilization goals to be established for each metropolitan area regarding crafts and trades for each contractor working on federal or federally-assisted construction contracts or subcontracts in excess of $10,000 (see 44 Fed. Reg. 52,348). The proposed formula was implemented on November 3, 1980.
On October 8, 1978, Executive Order 12086 (43 Fed. Reg. 46501) transferred all compliance and enforcement responsibility under E.O. 11246 to the Secretary of Labor. The Secretary has delegated these duties to the Office of Federal Contract Compliance Programs (OFCCP) of the Labor Department. As heretofore noted, E.O. 11246 originally provided that the agency for whom the federal project was being constructed or for whom the contractor did the bulk of his business would act as the compliance and review agency responsible for supervising compliance with E.O. 11246.
This litigation commenced in 1975 when plaintiffs filed their complaint, which alleged that the defendants (the U.S. Department of Labor, the Secretary of Labor, the OFCCP, the OFCCP Director, the Labor Department's Bureau of Apprenticeship and Training (BAT) and the BAT Associate Administrator) had failed to enforce the obligations of contractors and subcontractors working on federal or federally-assisted construction projects in the Philadelphia area. Specifically, plaintiffs alleged that defendants had not required the contractors to comply with E.O. 11246 and the Philadelphia Plan, which required that the contractors make good faith efforts to employ minority workers in the skilled trades utilized in federal construction projects. Plaintiffs also charged that the defendants BAT and the BAT Associate Administrator had failed to enforce the National Apprenticeship Act of 1937, 29 U.S.C. § 50 et seq. by failing to properly implement the non-discrimination and affirmative action obligations of the Pennsylvania Apprenticeship and Training Council and sponsors conducting apprenticeship programs registered with BAT pursuant to federal regulations requiring that those engaged in BAT-supervised programs comply with certain non-discrimination provisions (see 30 C.F.R. § 30.1, et seq.).
During pretrial proceedings, several motions were filed by the parties. Because the parties repeatedly assured the Court that settlement was imminent, the Court delayed ruling on the motions until July 31, 1980 when it became apparent that settlement could not be achieved. In its Order of July 31, 1980, the Court certified this case as a class action (see slip op. at 1-2, supra). As heretofore noted, trial was held before the Court sitting as a trier of fact. Based on the evidence presented at trial, the Court finds the following facts.
II. Findings of Fact
A. Discrimination in Philadelphia-area Building Trades Today
The named individual plaintiffs in this action, Ronald Taylor, David King, Nathaniel Brown, are black men who sought to work in the skilled building trades but were unable to consistently find such work due to the discriminatory practices of their respective union hiring halls. For all three, efforts to obtain satisfactory trades work have proven so futile that they have either left the Philadelphia area or their chosen trade.
Taylor, an ironworker, has returned to school to study accounting. At trial, he testified that he wished to work as an ironworker but that he could not find sufficient work in the Philadelphia area under the current arrangement between the contractors and the unions. David King, also an ironworker, moved to Winston-Salem, North Carolina. There, he has been able to obtain work in his trade with non-union affiliated contractors but, as a non-union ironworker in the South, has not received the same level of pay and benefits that he would have received working an equivalent amount of time through Local 405 of the Ironworkers in Philadelphia. Nathaniel Brown moved to Phoenix, Arizona. There, he has been able to work as a plumber for non-union contractors, though he was unable to progress through the apprenticeship program and find sufficient plumbers' work in Philadelphia when he sought employment through the hiring hall procedure of Plumbers Local 690.
The Assistant Secretary's findings of fact which accompanied the Labor Department's Order of September 23, 1969 noted that discrimination against black workers was a common occurrence in the skilled craft union hiring halls of Philadelphia and that these hiring halls held the key to employment in these fields since nearly all such construction contractors in Philadelphia obtained their workers through the union's hiring halls. Concluded the Labor Department:
Equal employment opportunity in [the skilled craft] trades in the Philadelphia area is still far from a reality. The unions in these trades still have only about 1.6 percent minority group membership and they continue to engage in practices, including the granting of referral priorities to union members and to persons who have work experience under union contracts, which result in few Negroes being referred for employment.
Order of June 27, 1969, p. 4.
Subsequent events have shown that the inability of many minority workers to obtain jobs results not only from slavish adherence to traditional preference practices but also from overt discrimination on the part of the union. See, e.g., Commonwealth of Pennsylvania v. Local 542 Int'l Union of Operating Engineers, 469 F. Supp. 329 (E.D. Pa. 1978), aff'd 648 F.2d 923 (1981), rev'd and remanded, 458 U.S. 375, 102 S. Ct. 3141, 73 L. Ed. 2d 835 (1982); United States v. Elevator Contractors Local 5, 398 F. Supp. 1237 (E.D. Pa. 1975), aff'd 538 F.2d 1012 (3d Cir. 1976). The experiences of Messrs. Taylor, King, and Brown illustrate the difficulties faced by black construction workers seeking work through the union hiring halls in Philadelphia.
Taylor participated in the apprenticeship programs of Ironworkers Local 405 in Philadelphia, and became a journeyman ironworker. He lived in Philadelphia and thus sought work in the area. However, when he participated in the local's hiring hall, he could only infrequently get work, usually at the most undesirable jobs and job sites. He was eventually driven to seek work outside the area and found work in Northern New Jersey. Prior to that, he had directly applied for work with contractors at job sites in the Philadelphia area but was turned down because he had not been referred to the job by the ironworkers local, and because this was the only means whereby a contractor would hire an ironworker.
David King's experiences paralleled those of Taylor. King joined Local 405 as an apprentice member in 1969. In 1971, he became a journeyman ironworker. At that time, frustrated by what he perceived as discrimination, he and Taylor and others filed suit against Local 405 pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. In that suit (E.D. Pa. Civil Action No. 76-810), King claimed that Local 405's hiring hall discriminated against black union members by referring for employment white members whose names were lower on the referral priority list than the names of the black members. King also claimed that white union members received the most desirable Philadelphia area work. King testified that on two occasions, he sought work, knew that work was available, had been specifically requested by the contractor seeking ironworkers, but that in both cases white union members below King on the referral priority list were sent to fill the job opening. Prior to commencing suit, King had filed a complaint with the Equal Employment Opportunity Commission (EEOC). King testified that he was unable to obtain any work through the hiring hall after he brought his discrimination complaint. He believed that he had been retaliated against by the union and subsequently moved to North Carolina where he has been working as an ironworker.
From 1969 to 1972, plaintiff Brown participated in the apprenticeship training program of Plumbers Local 690. During this period, he was able to find employment. Brown was one of only a few black members of the plumbers union at that time. While working on federal construction projects as an apprenticeship member of Local 690, Brown was occasionally transferred on short notice from one federal project to another for short periods of time. This is a process commonly known as "bicycling." Its purpose is to create the appearance of more black workers on the construction sites than the actual number working there whenever the construction contractor was facing an "on-site compliance review" by the federal government and needed to create the impression that he had achieved or was close to achieving the minority employment goals of the Philadelphia Plan.
In September, 1972, Brown was suspended from the Local 690 apprenticeship program without prior notice or opportunity to be heard because of the union's policy against beards or other facial hair. Brown alleged that the policy discriminated against blacks since many more blacks than whites are not able to shave closely without making their skin prone to staph infections. After his suspension, Brown was unsuccessful in securing employment. In March, 1975, he filed a Title VII action against Local 690 (Brown v. Local 690, Plumbers and Pipefitters Union, (E.D. Pa. Civil Action No. 75-861)). The suit was subsequently settled. Despite the settlement, Brown perceived that his status as a "troublemaker" would preclude him from progressing through the Local 690 apprenticeship program and obtaining regular work in the area; he subsequently moved to Arizona.
Apparently, the situations described above are not infrequent. Five of the seven trade unions named in the original Philadelphia Plan of September, 1969, which have been subject to the minority utilization goals of the Plan, have been defendants in race discrimination litigation brought pursuant to Title VII. In addition to the cases heretofore cited involving Taylor and King, and Brown, other cases are: Ray v. Ironworkers Local 401, (E.D. Pa. Civil Action No. 75-3657), Commonwealth of Pennsylvania v. Local 542 Operating Engineers, 469 F. Supp. 329 (E.D. Pa. 1978), aff'd 648 F.2d 923 (1981), rev'd and remanded, 458 U.S. 375, 102 S. Ct. 3141, 73 L. Ed. 2d 835 (1982), United States v. Elevator Contractors Local 5, 398 F. Supp. 1237 (E.D. Pa. 1975), aff'd 538 F.2d 1012 (3d Cir. 1976), and Young v. Local 19, Sheetmetal Workers, (E.D. Pa. Civil Action No. 70-2103). As heretofore noted, in Local 542 and Local 5 the Court made findings of discrimination on the part of the union and/or the contractors. The Local 401 and Local 19 cases have resulted in court-approved settlement and a consent order, respectively.
The evidence in this case shows that there is an ample supply of minority workers who either could work or could be trained to work in the building trades and who would seek and accept such work but for the barriers of discrimination. The Labor Department's September 23, 1969 Order found as fact based on the Department's hearings of August 26, 27 and 28, 1969 that:
The nonwhite unemployment rate in the Philadelphia area is approximately twice that for the labor force as a whole and the total number of non-white persons unemployed is approximately 21,000. There is also a substantial number of persons in the nonwhite labor force who are under-employed. Testimony adduced at the hearing indicates that there are between 1,200 and 1,400 minority craftsmen presently available for employment in the construction trades who have been trained and/or had previous work experience in the trades.
In addition it was revealed at the hearing that there is a pool of 7,500 minority persons in the Laborers Union who are working side by side with journeymen in the performance of their crafts in the construction industry. Many of these persons are working as helpers to the journeymen in the designated trades. Also, testimony at the hearings established that between 5,000 and 8,000 prospective minority craftsmen would be prepared to accept training in the construction crafts within a year's time if they would be assured that jobs were available to them upon completion of such training.
Based upon the number of minority group persons employed in the designated trades for all industries (construction and non-construction) and those minority group persons who are unemployed but qualified for employment in the designated trades, a survey by the Manpower Administration [of the Labor Department] indicated that minority group persons are now in the area labor market as follows:
Trades Number Available
and Steamfitters 797
Sheetmetal workers 250
Electrical workers 745
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