Gaynor v. Rockefeller

Citation256 N.Y.S.2d 584,15 N.Y.2d 120,204 N.E.2d 627
Parties, 204 N.E.2d 627, 58 L.R.R.M. (BNA) 2260, 1 Fair Empl.Prac.Cas. (BNA) 71, 51 Lab.Cas. P 51,245 Lloyd GAYNOR et al., Appellants, v. Nelson A. ROCKEFELLER, as Governor of the State of New York, et al., Respondents.
Decision Date14 January 1965
CourtNew York Court of Appeals

Robert L. Carter, Jerome Rubenstein, Maria L. Marcus, Lewis M. Steel, Sanford M. Katz and W. Eugene Sharpe, New York City, for appellants.

Louis J. Lefkowitz, Atty. Gen. (Samuel A. Hirshowitz and George D. Zuckerman, New York City, of counsel), for Nelson A. Rockefeller and others, respondents.

Leo A. Larkin, Corporation Counsel (Joel L. Cohen and Seymour B. Quel, New York City, of counsel), for Robert F. Wagner and others, respondents.

Cohn & Glickstein, New York City (Samuel Harris Cohen, New York City, of counsel), Walter M. Colleran, Harold Stern, John J. Mooney, New York City, Richard L. O'Hara, Mineola, and John A. McAvinue, Jr., New York City, for respondent unions.

FULD, Judge.

Suing on behalf of themselves and 'all other Negro citizens of New York * * * similarly situated', the four plaintiffs, citizens of the United States and residents of this State, have brought this class action for injunctive and declaratory relief against nine labor unions in the construction industry and various officials of the State and of the City of New York. They challenge the expenditure of public funds by the State and City on certain large public works projects in New York City on which, the complaint alleges, qualified Negroes are unlawfully denied employment and opportunity for employment because the contractors on such projects obtain virtually all their labor from the defendant unions and the latter exclude Negroes from their membership and apprenticeship programs solely on the basis of race and color.

In addition to a judicial declaration that the expenditure of public funds for such projects is in contravention of the equal protection clauses of the Federal and State Constitutions (U.S. Const., 14th Amdt.; N.Y.Const., art. I, § 11), as well as of this State's statutes banning discrimination by reason of race or color (Civil Rights Law, Consol.Laws, c. 6, § 43; Executive Law, Consol.Laws, c. 18, § 296; Labor Law, Consol.Laws, c. 31, § 220-e; Administrative Code of City of New York, § 343-8.0; Penal Law, Consol.Laws, c. 40, §§ 700, 701, 514), the plaintiffs seek to compel the defendant public officials to enforce such statutes and to enjoin them from paying out any moneys on the projects unless and until the discriminatory practices are halted. An injunction is also sought against the continuance of certain alleged discriminatory practices by the defendant unions in their apprenticeship programs. 1

Joined with the class action is a cause of action asserted by one of the plaintiffs, as a taxpayer, pursuant to section 51 of the General Municipal Law, Consol.Laws, c. 24, against the defendant municipal officers to enjoin them from 'causing public injury' by 'sanctioning and facilitating the exclusion of qualified Negroes from the possibility of public employment solely because of their race'.

The only individual grievances asserted by the four plaintiffs are that they were denied admission to membership or apprenticeship programs by two of the unions named as defendants. There is no allegation that any of the plaintiffs were denied admission to any of the other defendant unions or that they ever sought, or were ever refused, employment on the construction projects specified in the complaint or on any other public construction projects in the City or State. Nor is it alleged that the plaintiffs would have been employed on any of the projects but for the charged discrimination. There is likewise no allegation that any complaint of the alleged discrimination or any demand for corrective action was ever made to any of the defendant public officials.

The plaintiffs moved for a preliminary injunction, and the various defendants made cross motions for dismissal of the complaint. The court at Special Term, in the expressed hope that the parties would work out a solution, denied all motions without prejudice. The hope not having materialized, the defendants appealed to the Appellate Division from so much of Special Term's order as denied their cross motions, and that court, in an opinion by Justice Stevens, unanimously reversed and dismissed the complaint 'without prejudice to such further action as plaintiffs may be advised to pursue'. The plaintiffs have appealed to this court from the order of dismissal.

The Appellate Division held that no cause of action was stated against the defendant public officials since the discriminatory practices of the unions were not chargeable to such officials and, in addition, there was no showing that the latter had refused to take any requested remedial action. The court also held that the complaint could not stand against the defendant unions because of the failure to join as defendants the several contractors whose rights would be directly affected by the relief sought.

Accepting the allegations of the complaint as true, as of course we must for the purposes of this appeal, we are confronted with a grave and continuing breach by the defendant unions of the laws and declared policy of this State against the reprehensible practice of discrimination on racial grounds in the area of employment and employment opportunity. Section 43 of the Civil Rights Law specifically forbids any labor organization to deny membership to any person, directly or indirectly, by reason of his race, creed, color or national origin. Violators of the section are subject to a civil action for damages by the aggrieved person, as well as to criminal prosecution for a misdemeanor (Civil Rights Law, § 41). Other criminal penalties are also provided by the Penal Law (§§ 700, 701, 514).

The acts here charged to the defendant unions have also been denominated as 'unlawful discriminatory practices' by the Executive Law (§ 296), and a special agency, the State Commission for Human Rights (formerly the State Commission Against Discrimination), has been created and empowered to take appropriate action to eliminate and prevent any such practices by cease and desist orders enforcible by the courts (§§ 297, 298). In addition, the Labor Law (§ 220-e) and the New York City Administrative Code (§ 343-8.0) mandate the inclusion in public works contracts of prohibitions against discrimination in employment on the basis of race, creed, color or national origin. The Labor Law (§ 220-e, subds. (c), (d)) authorizes the imposition of prescribed penalties in the event of such discrimination and termination of the contract upon a second or any subsequent violation, and the Administrative Code (§ 343-8.0, subd. c) similarly treats such discrimination as 'a violation of a material provision of the contract.'

However, the remedies here invoked by the plaintiffs for the grievances asserted in the complaint are not open to them and this class action cannot be maintained. In our view, the plaintiffs have other adequate remedies available.

We note, at the outset, that the four plaintiffs do not have standing to bring a representative action on behalf of all other members of the indeterminate class of Negro citizens who may have been the victims of the alleged discriminatory practices. While this class action is purportedly brought pursuant to CPLR 1005(a), that section is merely a verbatim restatement of former section 195 of the Civil Practice Act; and, as this court explicitly announced in construing the latter section, a class action may not be maintained where the wrongs asserted are individual to the different persons involved and each of the persons aggrieved 'may determine for himself the remedy which he will seek' and may be subject to 'a defense not available against others'. (Society Milion Athena v. National Bank of Greece, 281 N.Y. 282, 292, 22 N.E.2d 374, 377; see Brenner v. Title Guar. & Trust Co., 276 N.Y. 230, 236-237, 11 N.E.2d 890, 893, 114 A.L.R. 1010) 'Separate wrongs to separate persons, though committed by similar means and even pursuant to a single plan,' we declared in the Society Milion Athena case (281 N.Y., at p. 292, 22 N.E.2d at p. 377), 'do not alone create a common or general interest in those who are wronged.'

In the present case, it is quite evident, the allegations of discriminatory practices against the members of the class purportedly represented by the plaintiffs would give rise to charges of separate wrongs against the several members of such class; each such person would be free to determine for himself the remedy for redress of his grievance which might take the form of a complaint to the State Commission for Human Rights or an action for damages under the Civil Rights Law, in contradistinction to the remedies here invoked; each individual claim might be subject to defenses not available against others; and, in general, determination of the merits of each claim would turn on the particular facts and circumstances involved.

The plaintiffs thus have standing here to complain only of grievances to which they have individually been subjected. (See Brenner v. Title Guar. & Trust Co., 276 N.Y. 230, 238, 11 N.E.2d 890, 894, supra; McCabe v. Atchison T. & S. F. Ry. Co., 235 U.S. 151, 162, 35 S.Ct. 69, 59 L.Ed. 169.) However, although the complaint may thus be sufficient to show that two of the defendant unions have unlawfully denied them admission to membership or apprenticeship, there is, as noted, no showing that any of the plaintiffs sought or were discriminatorily denied admission to any of the other defendant unions or were refused employment on any public construction project or, for that matter, would have been so employed if admitted to one of the unions.

The crux of the complaint as against the defendant public officials is that they have, in effect, condoned unlawful...

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