567 F.2d 1197 (2nd Cir. 1977), 79, Image Carrier Corp. v. Beame

Docket Nº:79, 80 and 82, Dockets 77-7205, 77-7206 and 77-7224.
Citation:567 F.2d 1197
Party Name:IMAGE CARRIER CORPORATION, Appellee, v. Abraham D. BEAME, Mayor of New York City, et al., Appellants. The HOUSE OF LITHOGRAPHY, INC., et al., Appellees, v. Abraham D. BEAME, Mayor of New York City, et al., Appellants.
Case Date:December 30, 1977
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 1197

567 F.2d 1197 (2nd Cir. 1977)



Abraham D. BEAME, Mayor of New York City, et al., Appellants.

The HOUSE OF LITHOGRAPHY, INC., et al., Appellees,


Abraham D. BEAME, Mayor of New York City, et al., Appellants.

Nos. 79, 80 and 82, Dockets 77-7205, 77-7206 and 77-7224.

United States Court of Appeals, Second Circuit

December 30, 1977

Page 1198

[Copyrighted Material Omitted]

Argued Sept. 20, 1977.

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Carolyn E. Demarest, Asst. Corp. Counsel, New York City, W. Bernard Richland, Corp. Counsel, New York City, for appellant New York.

Francis T. Coleman, Washington, D. C. (Donald L. Rosenthal, Washington, D. C., Townley & Updike, New York City, of counsel), for appellee.

Norman Rothfeld, New York City, (Menagh, Trainor & Rothfeld), for intervenor-appellant.

Before SMITH, ANDERSON and OAKES, Circuit Judges.

OAKES, Circuit Judge:

This appeal raises the specter of Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), which, with the possible exception of Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1857) (the Dred Scott case), remains the most discredited of Supreme Court decisions. We reject the attempt to resurrect this apparition of the past.

At issue below, 1 as well as on this appeal, is a policy of the City of New York (City) whereby only printers employing union labor and exhibiting the union label are permitted to bid for the City's "flat-form printing" business. 2 Utilizing traditional equal protection analysis, thereby avoiding the substantive due process issue raised by appellees, the United States District Court for the Southern District of New York, Lloyd F. MacMahon, Judge, found the City's practice "irrational" and hence unconstitutional. 3 We reverse the district judge's equal protection holding and find no violation of appellees' due process rights. However, we agree with the district judge that this case is not appropriate for abstention, that appellees have standing to raise their constitutional claims and that Section 7 of the National Labor Relations Act (NLRA) 4 does not preempt the City's practice of favoring union printers.



Appellees, plaintiffs in the district court, are non-union printers. Appellants, defendants below, are City officials who enforce the practice of restrictive bidding on flat-form printing contracts. The Allied Printing Trades Council of Greater New York, an umbrella organization of printing unions, has participated in these proceedings as intervenor.

The controversy arises over a Resolution (Resolution) adopted April 12, 1934, by the New York Board of City Record 5 requiring bidders for flat-form work to operate a

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union plant and to pay the "prevailing rate of wages." 6 In addition, the forms printed for the City must bear the union label. These requirements are followed by the Department of Purchase, 7 the Board of Education 8 and the Health and Hospitals Corporation. 9 We need not question the district court's factual findings that printing quality is not a function of union status 10 and that the 350 nonunion shops in New York, as compared to the 250 union shops, come closer to paying the required prevailing wage rate, 11 because we believe that a rational basis for the City's policy exists.

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  1. Abstention

    1. "Pullman " Abstention.

      Judge MacMahon was correct in not exercising his discretionary authority under Railroad Commission v. Pullman Co., 312 U.S. 496, 500-01, 61 S.Ct. 643, 85 L.Ed. 971 (1941), to abstain when state law is uncertain and a state court construction might obviate the need for federal constitutional adjudication. This case, as in McRedmond v. Wilson, 533 F.2d 757, 759 (2d Cir. 1976), "does not present the narrowly limited circumstances permitting invocation of the doctrine . . . ." A decision on the constitutional claims does not depend on an interpretation of unclear or complex state law. Seeid. at 760, 762. There is no ostensible basis for interpreting the Resolution, or the bidding requirements implementing it, to permit nonunion shops to do flat-form printing for the City. Even if nonunion shops pay the prevailing wage rate, see note 6 supra, they are nevertheless precluded from bidding because the Resolution is drafted in the conjunctive: the printer must be "a union plant and pay the prevailing rate of wages." (Emphasis added.) The union-status requirement is clear and without ambiguity. Cf. Lake Carriers' Association v. MacMullan, 406 U.S. 498, 511, 92 S.Ct. 1749, 1758, 32 L.Ed.2d 257 (1972) (abstention appropriate where statute is unclear "in particulars that go to the foundation of . . . grievance").

    2. "Younger " abstention.

      Allied's request for federal court abstention based on Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and subsequent cases amplifying Younger, e. g., Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), is totally misplaced. There is no ongoing, see, e. g., Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977), or even contemplated, see Doran v. Salem Inn, Inc., 422 U.S. 922, 929, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), state proceeding with which the federal action interferes. While appellees claim that the Resolution is invalid under state law, 12 this is a wholly inadequate basis for invoking federal court abstention.

  2. Justiciability

    1. Standing.

      As prospective bidders for City business, appellees clearly have economic interests at stake sufficient to give them standing. 13 Their injury in fact is loss of business which, even though indirect, is "fairly traceable to the defendant's acts or omissions." Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977). Since the trial court found that some nonunion shops were perfectly capable of doing the City's work, 430 F.Supp. at 584, 585, appellees' injury is a type "likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976).

    2. Ripeness.

      We read Allied's standing argument as implicitly questioning the ripeness of appellees' claims. Essentially, Allied suggests that appellees should have bid for City work and been turned down in order to present a justiciable claim. However, it would have been futile to do so since it is

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      obvious that they could not have been awarded a contract.

      In United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973), the Court sub silentio found a ripe controversy in circumstances virtually identical to those present in United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). The reason for the different outcomes on the ripeness issue in Letter Carriers and in Mitchell must have been the passage of time and the ensuing accumulation of experience, interpretation and administration of the Hatch Act. See P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler's The Federal Courts and the Federal System 32 (2d ed. Supp.1977). The record indicates that a number of policy memoranda and contract forms have been developed to implement the union label rule, see notes 7-9 supra, which was first promulgated in 1934. After 43 years of following its pro-union policy the City's position is amply developed. Requiring a nonunion shop to undergo the expense of preparing a bid with the certainty that it will be rejected imposes unnecessary financial hardship, see Abbott Laboratories v. Gardner, 387 U.S. 136, 153, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), without framing the issues more sharply.

  3. Preemption.

    We do not believe that Section 7 of the NLRA, note 4 supra, preempts and thereby invalidates the City's Resolution under the Supremacy Clause of the Constitution. Section 7 gives employees the right not to join a union under certain circumstances. Neither the City's Resolution nor its policy memoranda and bidding instructions implementing the Resolution requires any employee to join a union. Rather, the City's policy merely prefers union shops to nonunion shops in awarding flat-form printing contracts. Moreover, nothing in the sparsely developed record indicates that the City's flat-form printing needs, as distinguished from either the City's overall printing needs or the total printing work available in and around New York City, are substantial enough to have even an indirect coercive effect on nonunion employees to abandon their Section 7 right not to join a union. Indeed, the only relevant statistic in the entire record belies such an effect: the obvious logical inference to be drawn from the presence of 350 nonunion shops and 250 union shops in the printing business in New York City is that printing employees have not in substantial number relinquished their Section 7 rights. 14 Because appellees have nowhere indicated how the City's practice in any way alters the collective bargaining...

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