Ethridge v. Rhodes

• Decision Date: 17 May 1967
• Docket Number: Civ. A. 67-53.
• Citation: 268 F. Supp. 83
• Parties: William ETHRIDGE et al., Plaintiffs, v. James A. RHODES, Governor et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

268 F. Supp. 83

William ETHRIDGE et al., Plaintiffs, v. James A. RHODES, Governor et al., Defendants.

Civ. A. 67-53.

United States District Court S. D. Ohio, E. D.

May 17, 1967.

William J. Davis, Columbus, Ohio, Lewis Steel, New York City, for plaintiffs.

Robert Owen, Asst. Atty. Gen., Washington, D. C., Robert M. Draper, U. S. Atty., Columbus, Ohio, for John Gardner, Secretary, U. S. Dept. of Health, Education and Welfare.

William Hoiles, Lawrence Braun, Asst. Attys. Gen., Columbus, Ohio, for James A. Rhodes, Governor of Ohio, Alfred Gienow, Director, Ohio Dept. of Public Works, and John D. Herbert, Treasurer of Ohio.

OPINION AND ORDER

KINNEARY, District Judge.

This is a class action for declaratory and injunctive relief brought by plaintiffs, William Ethridge and Jerome Welch, on their behalf, and on behalf of all others similarly situated, against defendants, James A. Rhodes, Governor of the State of Ohio, Alfred Gienow, Director of the Ohio Department of Public Works, and John D. Herbert, Treasurer of the State of Ohio. The jurisdiction of this action is asserted under the Fourteenth Amendment to the Constitution of the United States, Title 28, United States Code, Sections 1331, 1343(3) and 2201, and Title 42, United States Code, Sections 1981 and 1983.

The Amended Complaint alleges that defendants, as duly elected and appointed officials of the State of Ohio, are about to enter into contracts for the construction of the Medical Basic Sciences Building on the campus of The Ohio State University, at Columbus. Plaintiffs seek to enjoin the State of Ohio from entering into such contracts on the ground that such action will be a deprivation, under color of state law, of their privileges and immunities as citizens of the United States as secured to them by the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States and Title 42, United States Code, Sections 1981 and 1983. It is charged that this activity violates these provisions inasmuch as it represents a continuation of state participation in a pattern of discrimination against plaintiffs, and the class they represent, in access to job opportunities on construction projects financed by federal and state funds, solely on the basis of their race.

The determination of the request for permanent injunctive and declaratory relief has been considered on plaintiffs' Complaint and Amended Complaint, plaintiffs' memorandum in support of the Court's jurisdiction, defendants' memoranda in support of their motions to dismiss, plaintiffs' memoranda in opposition to these motions, and the testimony elicited, exhibits introduced and oral argument presented by counsel for the respective parties at the hearing on plaintiffs' motion for a preliminary injunction held in open court on March 20, 1967, and the final hearing on the merits of the case held in open court on May 1, 1967.

Plaintiff, William Ethridge, has been employed for the past fourteen and one-half years as an aircraft electrician by North American Aviation, Inc., Columbus, Ohio. He has received instruction in electronics in both civilian and military schools, and his present employment involves the installation of electrical equipment and the reading of blueprints dealing with all phases of electrical work. Ethridge has also done some part-time work in the areas of commercial and residential wiring.

This plaintiff has made repeated attempts to gain admission to Local 683, International Brotherhood of Electrical Workers. He has been unable to gain admission because the two union officials, whom he has been told he must contact, have been "out" each time he sought to contact them. He has been unable to acquire an application form for admission to this union because he has been told that the application form must be notarized by one of the union officials who were consistently unavailable. His attempts to secure employment directly with construction contractors have been met with the answer that they do all of their hiring through the union.

Plaintiff, Jerome Welch, a college graduate, is presently employed as a high lift and bulldozer operator by Craig and Sons, Columbus, Ohio. He received instruction in heavy equipment operation and obtained a diploma in that field from the Interstate School, Muncie, Indiana.

This plaintiff's attempts to gain admission to Local 18, International Union of Operating Engineers, has met with doubtful results. While he has been able to obtain a "work permit," contractors have told him that before he can be employed he must present a "book" to signify that he is a fully pledged member of the union. The union officials whom Welch has to see in order to gain full membership in the union have also been "out" on every occasion that he has attempted to contact them.

Bids from contractors were received by the State of Ohio for the construction of the Medical Basic Sciences Building, and after review, contracts were sent to at least four contractors for their signatures. While these contracts have been signed and returned by the contractors and have not been signed by state officials, a declaration of intention to sign them has been made by state officials.

At least one of the contractors who has signed such a contract refused to submit a "responsive bid," that is, one containing the following assurance in compliance with the antidiscrimination provisions of the defendant Governor's executive order dealing with construction contracts:

ASSURANCE

The undersigned hiring source, in response to the Executive Order issued by Governor James A. Rhodes on June 15, 1966, as amended December 30, 1966, hereby gives its assurance to __________ as follows:

(1) Admission to the full referral facilities of this hiring source, both as to apprentices and journeymen, is open on equal terms to all qualified persons without discrimination based on race, color, religion, national origin or ancestry.

(2) (a) From July 1, 1966, through December 31, 1966, the apprenticeship program of this hiring source will select all qualified applicants for apprenticeship training without regard to race, color, religion, national origin or ancestry.

(b) From January 1, 1967 through December 31, 1967, this hiring source will comply with each legally imposed requirement of clause (5) (b) of the Governor's Executive Order dated June 15, 1966, as amended December 30, 1966.

(c) After January 1, 1968, this hiring source will comply with every legally imposed requirement of clause (5) (c) of the said Governor's Executive Order.

Clause 5 of the Executive Order reads as follows:

(5) He and his subcontractors have received assurance in writing (in the form appended hereto as Appendix B) from each hiring source, including labor unions (which assurance, where appropriate, was authorized by vote of its membership) that

(a) Commencing July 1, 1966, and continuing through December 31, 1966, said hiring source's apprenticeship program will select all qualified applicants for apprenticeship training without regard to race, color, religion, national origin or ancestry.

(b) Commencing January 1, 1967, and continuing through December 31, 1967, said hiring source will have in its apprentice group and refer for employment without discrimination, both whites and non-whites (including negroes) or in the alternative, said hiring source shall be deemed to have waived any right to be a recruitment source with respect to every twentieth employee hired and shall likewise be deemed to have consented that every twentieth employee of the craft referred by said hiring source, counting both apprentices and journeymen, may be recruited from another source for any employment derived from such bidder's bid, pledges and commitments, and report of assurances received.

(c) After January 1, 1968, said hiring source will have in its apprentice and journeymen groups, and refer for employment without discrimination, both whites and non-whites (including negroes) or in the alternative, it shall be deemed to have waived its right to be a recruitment source for every fifteenth employee hired and shall likewise be deemed to have consented that every fifteenth employee of the craft referred by said hiring source, counting both apprentices and journeymen, may be recruited from another source for any employment derived from such bidder's bid, pledges and commitments, and report of assurances received.

Upon discovering that no responsive bids were submitted in the category of heating, ventilating and air conditioning, defendant Gienow requested and received from defendant Rhodes a waiver of application of the assurances requirement to this contract.

In order for plaintiffs to prevail in their contention that this Court has jurisdiction of this action under the Fourteenth Amendment, it is incumbent on plaintiffs to prove that there is "state action" resulting in a denial of equal protection of the laws—that is, action which results in racial discrimination. The Fourteenth Amendment was aimed at state, rather than individual, abridgment of individual rights. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Simkins v. Moses H. Cone Memorial Hosp., 323 F.2d 959 (4th Cir. 1963). Similarly, in order to prevail on the question of this Court's jurisdiction under Title 42, United States Code, Section 1983, plaintiffs must prove that defendants acted "under color of state law" to deprive a citizen of the United States of rights, privileges, or immunities secured by the Constitution and laws of the United States. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

Defendants are aware that a number of unions have not referred Negroes for employment on the construction of other buildings erected by the State of Ohio on the campus of The Ohio State University. Defendants know to a certainty that many of the unions which will be used as labor sources by the...