Weiner v. Cuyahoga Community College Dist., 68-599

• Decision Date: 02 July 1969
• Docket Number: No. 68-599,68-599
• Citation: 48 O.O.2d 48,249 N.E.2d 907,19 Ohio St.2d 35
• Parties: , 2 Fair Empl.Prac.Cas. (BNA) 30, 2 Empl. Prac. Dec. P 10,046, 48 O.O.2d 48 WEINER, Appellant, v. CUYAHOGA COMMUNITY COLLEGE DISTRICT et al., Appellees.
• Court: Ohio Supreme Court

Page 35

19 Ohio St.2d 35

249 N.E.2d 907, 2 Fair Empl.Prac.Cas. (BNA) 30,

2 Empl. Prac. Dec. P 10,046, 48 O.O.2d 48

WEINER, Appellant, v. CUYAHOGA COMMUNITY COLLEGE DISTRICT et al., Appellees.

No. 68-599.

Supreme Court of Ohio.

July 2, 1969.

Syllabus by the Court

1. A bidder for a construction contract to be awarded by a public body of this state may be required to assure nondiscrimination in employment in the entire performance of such contract, by appropriate promises contained in contract provisions or related instruments.

2. The failure of a bidder to give such assurances when specified is a lawful ground for rejection of the low bid of such bidder.

This is a taxpayer's action brought in the Court of Common Pleas of Cuyahoga County to enjoin the Cuyahoga Community College District from awarding or expending funds in furtherance of a contract for heating, ventilating and air-conditioning work on the Cleveland campus of the college, to a contractor other than the lowest and best bidder. The development and construction on the campus necessitating such contract is a joint project of state and federal entities. The invitation for bids on the contract contained specifications which required the contractor to submit an Affirmative Action Plan intended to 'have the result of assuring that there is minority group representation in all trades on the job and in all phases of the work.' (Emphasis original.) The specifications further provided detailed principles of affirmative action, steps to be taken for a program, a guideline for the contractor's program and established a pre-award meeting one week after bid opening for discussion of such program. It was also specified: 'A written affirmative action plan by each such apparent low bidder must be approved by the federal government prior to the contract execution. Such affirmative action plan is to be submitted by such apparent low bidder not later than 15 days after the above mentioned pre-award meeting * * *.'

There were two bidders for the contract involved in this suit. Reliance Mechanical Contractors, Inc., submitted the low bid and an Affirmative Action Plan of some 100 pages. Reliance conditioned its proposed minority representation in jobs, however, with the words 'Subject to availability and referral to Reliance Mechanical Contractors, Inc. of qualified journeymen and apprentices from Pipefitters Local No. 120,' referring to the union with which it had an exclusive hiring hall contract. At the pre-award meeting, the college objected to the foregoing condition in Reliance's plan, and other forms of wording were tried and rejected. The final submission of Reliance stated: '* * * this company will continue to make every reasonable effort to see to it that Negro apprentices are employed and placed on this project. However, this company cannot and, therefore, does not guarantee that it will have Negro apprentices on this project.'

Thereafter, Reliance's bid was formally rejected by the college for failure to include submission of an Affirmative Action Program acceptable to the federal government. The contract was awarded to the second low bidder, whose assurance of equal employment opportunity and minority group representation on the job was expressed in its statement: 'You are hereby advised that we will have Negro representation in all crafts employed on this project.'

Plaintiff contends that the college and federal officials who rejected Reliance's Affirmative Action Plan were seeking an unlawful guarantee that the contractor would have Negroes on the job, that Reliance's bid was lowest and best, that its Affirmative Action Plan was consistent with state and federal law and the specifications of the invitation to bid, and that the rejection of Reliance's bid in favor of a higher bidder was, accordingly, an abuse of discretion and unlawful.

The trial court found that Reliance was never requested or expected to hire Negroes or any other persons on a quota basis, but that the invitation to bid and appellees' position during discussions thereafter did lawfully require an unequivocal assurance of positive equal employment opportunity efforts. It found from both oral testimony and documentary exhibits that Reliance at no time gave such assurance and rendered judgment for defendants. Upon appeal on questions of law and fact, the Court of Appeals took additional documentary evidence, adopted the findings of the trial court and rendered the same judgment.

The cause is before this court pursuant to the allowance of a motion to require the Court of Appeals to certify the record.

Thompson, Hine & Flory, William H. Wallace, S. Stuart Eilers and Joseph S. Ruggie, Jr., Cleveland, for appellant.

Squire, Sanders & Dempsey, George I. Meisel and Wilbur J. Markstrom, Cleveland, for appellees.

HERBERT, Judge.

The issue at the heart of this dispute is whether the policies of the United States and the State of Ohio against discriminatory employment practices may be positively enforced by a public body through the medium of public improvement contracts. The public policy is clearly formulated in the legislation proscribing racial discrimination in employment. See Civil Rights Act of 1964, Section 2000e-2, Title 42, U.S. Code; Section 4112.02, Revised Code. Public construction contracts requiring employment in their performance must contain provisions by which the contractor promises that he will not engage in any discriminatory hiring practice (Section 153.59, Revised Code; Presidential Executive Order No. 11246, Section 202(1), 30 Fed.Reg.12319), but more important, both state and federal executive orders implementing civil rights legislation enjoin upon public contractors affirmative duties with respect to seeking, hiring, training, promoting and paying employees, and in regard to their dealings with subcontractors, unions and employment agencies, all to the end that nondiscrimination in the performance of the contract will be assured. See Presidential Executive Order No. 11246, supra, Parts II and III; Ohio Gubernatorial Executive Order, June 5, 1967 (unnumbered and unreported).

Plaintiff does not question the requirement that public contractors promise not to discriminate in employment. Exacting such a promise from a contractor does little more than provide a contract remedy for practices already condemned by law. Rather, he contends that the community college district, as a public body of the state, and the federal agency, through the college (see Section 3354.09(H), Revised Code), attempted to exact contractual...