Contractors Ass'n of Eastern Pa. v. Secretary of Labor

Decision Date22 April 1971
Docket NumberNo. 19027.,19027.
Citation442 F.2d 159
CourtU.S. Court of Appeals — Third Circuit
PartiesThe CONTRACTORS ASSOCIATION OF EASTERN PENNSYLVANIA v. The SECRETARY OF LABOR, George P. Shultz, the Assistant Secretary of Labor, Arthur A. Fletcher, the Director, Office of Federal Contract Compliance, John L. Wilks, the Secretary of Agriculture, Clifford M. Hardin, and the General State Authority of the Commonwealth of Pennsylvania. James D. Morrissey, Inc., the Conduit & Foundation Corp., Glasgow, Inc., Buckley & Company, the Nyleve Company, Erb Engineering & Constr. Co., Perkins, Kanak, Foster, Inc., and Lansdowne Constructors, Inc. (Intervening Plaintiffs in D. C.). The Contractors Association of Eastern Pennsylvania, James D. Morrissey, Inc., the Conduit & Foundation Corp., Glasgow, Inc., Buckley & Company, the Nyleve Company, Erb Engineering & Constr. Co., Perkins, Kanak, Foster, Inc., and Lansdowne Constructors, Inc., Appellants.

COPYRIGHT MATERIAL OMITTED

John J. McAleese, Jr., Synnestvedt & Lechner, Robert J. Bray, Jr., Philadelphia, Pa., for plaintiff and intervening plaintiffs-appellants.

David L. Rose, Civil Right Division, Planning and Special Appeals Section, Department of Justice, Washington, D. C., Peter Nash, Solicitor of Labor, Gerald L. Paley, Associate Solicitor of Labor, Jerris Leonard, Asst. Atty. Gen., David L. Norman, Deputy Asst. Atty. Gen., Louis C. Bechtle, U. S. Atty., Bernard H. Shapiro, Joseph B. Scott, Attys., U. S. Department of Justice, Washington, D. C., for federal appellee.

Theodore R. Mann and Barry E. Ungar, Philadelphia, Pa., amicus curiae, for appellees; Goodis, Greenfield, Narin & Mann, Philadelphia, Pa., of counsel.

Winthrop A. Johns, Lawrence T. Zimmerman, Washington, D. C., for Associated General Contractors of America; Reilly, Johns & Zimmerman, Washington, D. C., of counsel.

Nathaniel R. Jones, General Counsel, Paul J. Spiegelman, New York City, Russell Specter, Washington, D. C., William D. Wells, amici curiae, for NAACP; Robert J. Reinstein, Philadelphia, Pa., of counsel.

Sherman, Dunn & Cohen, Louis Sherman, Washington, D. C., Meranze Katz, Spear & Bielitsky, Bernard N. Katz, Philadelphia, Pa., amici curiae, for Building and Construction Trades Department, AFL-CIO and Building and Construction Trades Council of Philadelphia and Vicinity, AFL-CIO.

John D. Day, Asst. City Sol., Matthew W. Bullock, Jr., First Deputy City Sol., Levy Anderson, City Sol., Philadelphia, Pa., amici curiae, for City of Philadelphia.

Ralph B. Powell, Jr., Philadelphia, Pa., amicus curiae, for General Building Contractors Ass'n, Inc.

Guy Farmer, Patterson, Belknap, Farmer & Shibley, Washington, D. C., amici curiae, for National Electrical Contractors Ass'n.

Before HASTIE, Chief Judge, and McLAUGHLIN and GIBBONS, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

The original plaintiff, the Contractors Association of Eastern Pennsylvania (the Association) and the intervening plaintiffs,1 construction contractors doing business in the Philadelphia area (the Contractors), appeal from an order of the district court which denied their motion for summary judgment, granted the motion of the the federal defendants2 to dismiss the Association complaint for lack of standing, and granted the cross-motion of the federal defendants for summary judgment.3 When deciding these motions, the district court had before it the Association's verified complaint, a substantially identical complaint of the Contractors, the affidavits of Vincent G. Macaluso and Ward McCreedy on behalf of the federal defendants which identified certain relevant documents, a stipulation by the parties as to certain facts, and two affidavits of Howard G. Minckler on behalf of the plaintiffs.

The complaint challenges the validity of the Philadelphia Plan, promulgated by the federal defendants under the authority of Executive Order No. 11246.4 That Plan is embodied in two orders issued by officials of the United States Department of Labor, dated June 27, 1969 and September 23, 1969, respectively. Copies of these orders were annexed to the verified complaint as exhibits 1 and 2, respectively, and to the Macaluso affidavit as appendices B and C respectively. In summary, they require that bidders on any federal or federally assisted construction contracts for projects in a five-county area around Philadelphia,5 the estimated total cost of which exceeds $500,000, shall submit an acceptable affirmative action program which includes specific goals for the utilization of minority manpower in six skilled crafts: ironworkers, plumbers and pipefitters, steamfitters, sheetmetal workers, electrical workers, and elevator construction workers.

Executive Order No. 11246 requires all applicants for federal assistance to include in their construction contracts specific provisions respecting fair employment practices, including the provision:

"The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin."6

The Executive 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 Fletcher issued an order implementing the Executive Order in the five-county Philadelphia area. The order required bidders, prior to the award of contracts, to submit "acceptable affirmative action" programs "which shall include specific goals of minority manpower utilization." The order contained a finding that enforcement of the "affirmative action" requirement of Executive Order No. 11246 had posed special problems in the construction trades.7 Contractors and subcontractors must hire a new employee complement for each job, and they rely on craft unions as their prime or sole source for labor. The craft unions operate hiring halls. "Because of the exclusionary practices of labor organizations," the order finds "there traditionally has been only a small number of Negroes employed in these seven trades."8 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 program. 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."

Acting pursuant to the June 29, 1969 order, representatives of the Department of Labor held public hearings in Philadelphia on August 26, 27 and 28, 1969. On September 23, 1969, Assistant Secretary Fletcher made findings with respect to each of the listed factors and ordered that the following ranges be established as the standards for minority manpower utilization for each of the designated trades in the Philadelphia area for the following four years:

                Range of Minority Group Employment
                Identification
                of Trade Until for for for
                12/31/70 1971 1972 1973
                Ironworkers        5%-9%      11%-15%    16%-20%    22%-26%
                Plumbers &amp
                  Pipefitters      5%-8%      10%-14%    15%-19%    20%-24%
                Steamfitters       5%-8%      11%-15%    15%-19%    20%-24%
                Sheetmetal
                  workers          4%-8%       9%-13%    14%-18%    19%-23%
                Electrical
                  workers          4%-8%       9%-13%    14%-18%    19%-23%
                Elevator
                  construction
                  workers          4%-8%       9%-13%    14%-18%    19%-23%
                

The order of September 23, 1969 specified that on each invitation to bid each bidder would be required to submit an affirmative action program. The order further provided:

"4. No bidder will be awarded a contract unless his affirmative action program contains goals falling within the range set forth * * * above. * * *
* * * * * *
6. The purpose of the contractor\'s commitment to specific goals as to minority manpower utilization is to meet his affirmative action obligations 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.
* * * * * *
8. 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."

In November, 1969, the General State Authority of the Commonwealth of Pennsylvania issued invitations to bid for the construction of an earth dam on Marsh Creek in Chester County, Pennsylvania. Although this dam is a Commonwealth project, part of the construction cost, estimated at over $3,000,000 is to be funded by federal monies under a program administered by the Department of Agriculture.9 The Secretary of Agriculture, one of the federal defendants, as a condition for payment of federal financial assistance for the project, required the inclusion in each bid of a Philadelphia Plan Commitment in compliance with the order of September 23, 1969. On November 14, 1969, the General State Authority issued an addendum to the original invitation for bids requiring all bidders to include such a commitment in their bids. It is alleged and not denied that except for the...

To continue reading

Request your trial
149 cases
  • Bakke v. Regents of University of California
    • United States
    • California Supreme Court
    • September 16, 1976
    ... ... (Assn. of American Medical Colleges, Medical School Admission ... by the Congress, goes the argument, minorities still labor under severe handicaps. To achieve the American goal of ... affirmative action plans requiring federal contractors to utilize racial classifications to increase the number of ... (See Contractors Association of Eastern Pa. v. Secretary of Labor, supra, 442 F.2d 159, 176 and ... ...
  • Page v. Curtiss-Wright Corporation
    • United States
    • U.S. District Court — District of New Jersey
    • October 18, 1971
    ... ... members of the Union under the provisions of the Labor-Management Relations Act, 29 U.S.C. § 151 et seq ... of Executive Order 11246 (applicable to contractors with the U.S. Government); and (c) on the ground that ... of Eastern Penn. v. Shultz, et al., 442 F.2d 159, 172 (3 Cir. 1971) ... ...
  • State v. Nelson
    • United States
    • U.S. District Court — Middle District of Florida
    • December 22, 2021
  • U.S. v. Cohen
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • May 4, 1984
    ... ... United States, 49 F.2d 506 (D.C.Cir.1931) (former Secretary of the Interior--Teapot Dome scandal). Moreover, even if ... construction contracts); see generally Contractors Association v. Secretary of Labor, 442 F.2d 159, 168-71 (3d ... ...
  • Request a trial to view additional results
5 books & journal articles
  • EPA enforcement
    • United States
    • Introduction to environmental law: cases and materials on water pollution control - 2d Edition
    • July 23, 2017
    ...which it may “blacklist” facilities it alleges are violating the Act. See, e.g. , Contractors Ass’n of E. Pa. v. Secretary of Labor , 442 F.2d 159 (3d Cir. 1971). 656 Water Pollution Control, 2d Edition Facilities may contest such listing by undertaking administrative proceedings followed b......
  • The Property Clause, Article Iv, and Constitutional Structure
    • United States
    • Emory University School of Law Emory Law Journal No. 71-4, 2022
    • Invalid date
    ...with respect to staffing and pay that proceeded without express statutory authority); Contractors Ass'n of E. Pa. v. Sec'y of Lab., 442 F.2d 159 (3d Cir. 1971) (holding that the President has power to adjust terms of contracts if not in violation of law); see also Henry P. Monaghan, The Pro......
  • Table of authorities
    • United States
    • Introduction to environmental law: cases and materials on water pollution control - 2d Edition
    • July 23, 2017
    ...148 Contractors Ass’n of E. Pa. v. Secretary of Labor, 442 F.2d 159 (3d Cir. 1971) ............ 655 Cort v. Ash, 422 U.S. 66 (1975) ................................................................................ 435 Costle v. Paciic Legal Foundation, 445 U.S. 198, 10 ELR 20225 (1980) ...........
  • Afl-cio v. Allbaugh: the D.c. Circuit Limits the President's Authority to Influence Labor Relations
    • United States
    • Georgia State University College of Law Georgia State Law Reviews No. 19-4, June 2003
    • Invalid date
    ...supra Part I.C. [76]. Id. at 790 n.32, 791 n.33. [77]. Id. at 791. [78] Id. at 792 (quoting Contractors Ass'n of E. Pa. v. Sec'y of Labor, 442 F.2d 159, 170 (3d Cir. 1971)). In Contractors, the court concluded that "it is in the interest of the United States in all procurement to see that i......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT