Southern Illinois Builders Association v. Ogilvie

• Decision Date: 01 December 1972
• Docket Number: No. 71-1771.,71-1771.
• Citation: 471 F.2d 680
• Parties: SOUTHERN ILLINOIS BUILDERS ASSOCIATION et al., Plaintiffs-Appellees, v. Richard B. OGILVIE, Governor, State of Illinois, et al., Defendants-Appellees, and Operative Plasterers and Cement Masons International Association, Local 90, AFL-CIO, et al., Defendants-Appellants, and United States of America, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

471 F.2d 680 (1972)

SOUTHERN ILLINOIS BUILDERS ASSOCIATION et al., Plaintiffs-Appellees, v. Richard B. OGILVIE, Governor, State of Illinois, et al., Defendants-Appellees, and Operative Plasterers and Cement Masons International Association, Local 90, AFL-CIO, et al., Defendants-Appellants, and United States of America, Intervenor-Appellee.

No. 71-1771.

United States Court of Appeals, Seventh Circuit.

Argued September 20, 1972.

Decided December 1, 1972.

Harold Gruenberg, St. Louis, Mo., for appellants.

Edward L. Welch, E. St. Louis, Ill., J. Leonard Schermer and Lawrence P. Kaplan, St. Louis, Mo., Edward Neville, E. St. Louis, Ill., Wm. J. Scott, Atty. Gen., and James M. Winning and William P. Ryan, Springfield, Ill., for appellees.

David L. Norman, Asst. Atty. Gen., and David L. Rose, Andrew J. Ruzicho, and Gerald F. George, Dept. of Justice, Washington, D. C., Donald B. Mackay, U. S. Atty., and Gregory M. Wilson, Springfield, Ill., for intervenor-appellee.

Before DUFFY, Senior Circuit Judge, and CUMMINGS and SPRECHER, Circuit Judges.

SPRECHER, Circuit Judge.

This appeal tests the constitutionality of a plan intended to implement equal employment opportunities in the highway construction industry in Madison and St. Clair Counties, Illinois.

I

After the United States Department of Transportation had ordered all federal funds for highway construction in Madison and St. Clair Counties withheld for lack of equal employment opportunities, the six principal craft unions involved in highway construction (teamsters, laborers, carpenters, cement masons, iron-workers and operating engineers) met with federal and state officials and representatives of highway contractors and subcontractors and of the black community, in an attempt to thaw the frozen funds. With very little help and considerable opposition from the unions, the governor of Illinois promulgated on June 3, 1970, "An Agreement to Facilitate Equal Employment Opportunity in Madison and St. Clair Counties" (Ogilvie Plan).

The plan provided a program for the recruitment, placement and training of minority group members in the highway construction industry. Minority group members who had worked as journeymen "under permit" for at least one year were to be considered as qualified journeymen by the contractors, who were to make every opportunity to employ them. Minority applicants who did not qualify as journeymen were eligible to participate in an orientation course, followed by a specified number of hours of training in a selected craft. After successfully completing training and testing, the trainees were given journeymen status. Those trainees not deemed equivalent in skill for journeyman status were to be hired by contractors for up to 200 days of on-the-job advanced training at wages of from 60 to 90 percent of the journeyman's rate for the particular craft involved. Upon completion of the advanced training, the trainees were to become full-fledged journeymen and to receive a journeyman's wage.

The plan was to be carried out by a local Equal Opportunity Administrative Committee consisting of two contractor representatives, two representatives of the Metro-East Labor Council, Inc., two members appointed by the governor and appropriate representation by every labor union becoming a party to the agreement. The plan provided "the Committee shall determine the ratio of Advanced Trainees to journeymen for each craft, provided that the minimum ratio be one Advance Trainee to four journeymen."¹

The Ogilvie Plan was signed and executed by the Southern Builders Association, whose members are contractors in Madison and St. Clair Counties, and by the Metro-East Labor Council, Inc., an organization of representatives of the black community in the two counties. Two teamster local unions signed an "Addendum" to the plan and agreed to its implementation. The laborers acquiesced in its implementation. Shortly following the execution of the Ogilvie Plan, highway construction in the two counties resumed.

The United States had filed four separate suits against the cement masons, ironworkers, operating engineers and carpenters to enforce the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and to prevent interference with Executive Order 11246.² Consent decrees were entered in the operating engineers' case on May 13, 1969,³ in the cement masons' case on May 6, 1970,⁴ and in the ironworkers' case on November 13, 1970,⁵ requiring the three appellant unions in the present case to cooperate in the implementation of training programs sponsored by the government or the contractors' association, both of which sponsored the Ogilvie Plan. United States v. United Brotherhood of Carpenters and Joiners, Local 169, 457 F.2d 210 (7th Cir. 1972), cert. denied, 409 U.S. 851, 93 S.Ct. 63, 34 L.Ed.2d 94 (1972).

Despite the provisions of the consent decrees providing for cooperation with plans such as the Ogilvie Plan and for the referral of trainees, the three appellant unions have contended they are not obligated to refer trainees and have refused contractor requests for trainees and otherwise failed to cooperate with the plan on the grounds that such referrals would violate the terms of their collective bargaining agreements with the contractors and in part their consent decrees with the United States and that the plan itself is unlawful and unconstitutional. Consequently on January 29, 1971, the Southern Illinois Builders Association and Southern Illinois Contractors Association brought an action for declaratory judgment seeking judicial interpretation of the Ogilvie Plan and certain aspects of its implementation in view of the consent decrees and the unions' collective bargaining agreements.

The district court, after a full trial, issued its declaratory judgment on May 7, 1971, holding that the Ogilvie Plan was not violative of any constitutional provision nor of the Civil Rights Act of 1964; that the plan was not inconsistent with the unions' consent decrees with the United States; that the decrees required the unions to cooperate in the implementation of the plan; that to the extent the plan may be inconsistent with collective bargaining agreements, the plan should prevail because of the requirements of the consent decrees and Executive Order 11246; that the State of Illinois and its officials had the right to enforce compliance with the plan; and that the contractors through their association and the Metro-East Labor Council, Inc. were obligated to comply with the plan. Southern Illinois Builders Association v. Ogilvie, 327 F.Supp. 1154 (S.D.Ill.1971).⁶

On June 2, 1971, after a further hearing, the district court denied the motions of the three appellant unions for a new trial and issued an amended order interpreting three specific provisions of the Ogilvie Plan as follows (327 F.Supp. at 1164):

"(2) The sequential hiring pattern of trainees or minority group individuals in the Kronst memorandum of January 12, 1971 is not prohibited nor required by the Ogilvie Plan.⁷

"(3) The intent of the Ogilvie Plan in establishing its minimum ratios is to require referral and employment of minority group individuals on a craft-wide basis in highway construction, in the aggregate, throughout the jurisdictional area covered by the Ogilvie Plan, and not to require referral employment of minority group individuals in a fixed ratio on any particular job site.

"(4) The terms and provisions of the Ogilvie Plan do not require the contractors to employ more individuals than are needed to perform any job according to the terms of the collective bargaining agreements between the unions and the contractors."

The three unions have appealed from the declaratory judgment as amended. We affirm.

II

The appellant unions have argued that the Ogilvie Plan, by establishing a ratio of trainees to journeymen for employment on highway construction, has established a quota system for hiring in contravention of Title VII of the Civil Rights Act of 1964 and the Fifth and Fourteenth Amendments to the Constitution.

We will not repeat the demographic background of the Ogilvie Plan, which led us to conclude in United States v. United Brotherhood of Carpenters and Joiners, Local 169, supra, 457 F.2d at 214-216, that a history of discrimination existed in the highway construction trades in Madison and St. Clair Counties.⁸

Section 22(a) of the Federal Aid Highway Act of 1968 (23 U.S.C. § 140) requires the State of Illinois to adopt the Ogilvie Plan or one substantially like it with apprenticeship, skill improvement or other upgrading programs without regard to race, color, creed or national origin, in order to participate in Federal-aid highway construction programs. Executive Order 11246, Sept. 24, 1965, as amended by Executive Order No. 11375, Oct. 13, 1967, 32 F.R. 14303, requires contractors desiring to participate in Federal-aid programs to take "affirmative action" in regard to equal opportunity employment, upgrading, recruitment and selection for training, including apprenticeship.

The obligation to take affirmative action imports more than the negative obligation not to discriminate. The Secretary of Labor is responsible for the administration of Executive Order 11246 and is authorized to "adopt such rules and regulations and issue such orders as he deems necessary and appropriate to achieve the purposes thereof" (Sec. 201). The Secretary's regulations require that contractors develop written affirmative action plans which shall "provide in detail for specific steps to guarantee equal employment opportunity keyed to the problems and needs of members of minority groups, including, when there are deficiencies, the development of specific goals and time tables for the prompt achievement of full and equal employment opportunity." 41 C.F.R. 60-1.40 (a) (1970).

The two pilot plans utilizing the goals-and-time-tables concept were the Cleveland and Philadelphia plans for...