The opinion of the court was delivered by: BECHTLE
In this employment discrimination class action the Court held that Local 542, International Union of Operating Engineers and the Joint Apprenticeship Training Committee intentionally discriminated against minorities in the operating engineers trade throughout the Eastern Pennsylvania and Delaware areas in violation of Title VII, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. Commonwealth of Pennsylvania v. Local Union 542, 469 F. Supp. 329 (E.D. Pa. 1978), affirmed per curiam, 648 F.2d 922 (3d Cir. 1982). The Court also held that plaintiffs failed to prove that the contractor associations or contractors viewed as a class were actually aware of the union discrimination affecting the employment of minority persons throughout the operating engineers industry in Local 542's jurisdiction. Commonwealth of Pennsylvania v. Local Union 542, 469 F. Supp. 329, 401 (E.D. Pa. 1978). The Court held, however, that the contractor associations and contractors were injunctively liable under 42 U.S.C. § 1981 because of their contractual relationship to the union hiring hall. Commonwealth of Pennsylvania v. Local Union 542, 469 F. Supp. 329 (E.D. Pa. 1978), affirmed per curiam, 648 F.2d 923 (3d Cir. 1982). The Court's finding of vicarious liability on the part of the contractor associations and contractors was reversed by the United States Supreme Court. General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 102 S. Ct. 3141, 73 L. Ed. 2d 835 (1982). Presently before the Court is the motion of individual and class plaintiffs for leave to amend the complaint. For the reasons which follow, plaintiffs' motion will be denied.
Plaintiffs contended that Local 542's exclusive hiring hall system discriminated against blacks and other minorities in Eastern Pennsylvania and Delaware with respect to union membership and job referrals in the operating engineer trade. Complaint, paras. 16-33. This union hiring hall system was agreed to by the contractors and contractor associations in 1961 following a lengthy strike, and has been included in collective bargaining agreements to this day. Plaintiffs also contended that defendant contractor associations and contractor-employers participated in, sustained, and perpetuated the policy and practice of racial discrimination, Complaint, paras. 41-42, and had knowledge of Local 542's and the JATC's discriminatory practices, acceded to them, and conspired with Local 542 and the JATC to deprive minority members equal employment opportunities in the operating engineers craft, Complaint paras. 43-46. At the core of the complaint was a Title VII employment discrimination claim brought against Local 542 alleging the intentional exclusion of blacks and other minorities from union membership and discrimination against minority union members with respect to job referrals and employment opportunities. Title VII allegations were also leveled at the JATC which administered the four year apprenticeship training program in cooperation with the contractor-employers and Local 542. Plaintiffs contended that the class of contractor associations and class of contractor-employers had knowledge of the union's discriminatory practices, acceded to them, and conspired with defendants Local 542 and the JATC to deprive minorities of equal employment opportunities in the operating engineer trade. These latter claims served as the bases for the 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), and Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et seq. claims. Finally, plaintiffs asserted violations of the Labor Management Relations Act, 29 U.S.C. § 185, and the Thirteenth and Fourteenth Amendments to the United States Constitution.
On March 13, 1972, the Court granted plaintiffs' motion for leave to maintain the action as a class action as to class defendants under Fed.R.Civ.P. 23(b)(2) and certified the following defendant subclasses:
(b) all contractor-employers who are subject to collective bargaining agreements with Local 542, International Union of Operating Engineers, and who, pursuant to such agreements, employ or will employ operating engineers referred to them by defendant Local 542.
Three years of discovery followed. On May 8, 1973, plaintiffs filed their proposed final pretrial order. In that order plaintiffs set forth the following facts which they intended to prove against the contractor associations and contractor-employers at trial:
The defendant contractor associations and contractor-employers have had knowledge of the fact that defendant Local 542 and defendant JAC control the entry of substantially all operating engineers into the labor market embraced by Local 542's territorial jurisdiction. They have also had knowledge of Local 542's and JAC's discriminatory practices, have acceded to them, and conspired with defendants Local 542 and JAC to deprive minority group members of equal employment opportunity in the operating engineers craft. Nonetheless, defendant contractor associations and contractor-employers, with the intent of discriminating against plaintiffs and the class they represent, have continued to contract with defendant Local 542 and to participate in the apprenticeship program administered by defendant JAC.
(Docket Entry #163) (emphasis added). In January and February 1974, a "Legal Notice," prepared by the Hon. A. Leon Higginbotham, Jr. and dated December 27, 1973, was forwarded by direction of the Court to potential defendant class members, certified mail, return receipt requested. Judge Higginbotham's "Legal Notice" stated:
As a result of an order of this Court of March 13, 1973, which designates the subject action as a class action, any judgment therein, whether for or against those against whom the subject action is directed, will apply to the following classes:
(a) all contractor associations which are, or may be, parties to a collective bargaining agreement with Local Union 542, International ...