Petition — Image Carrier Corp. v. Koch

= Supreme Court, U.S .~

FILED

15 1978

ll

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1977

no. €%-1625

IMAGE CARRIER CORPORATION,

HOUSE OF LITHOGRAPHY, INC.,

ASSOCIATED LITHO AND LETTERING

SERVICE, INC.,

Petitioners,

Vv.

EDWARD I. KOCH,

MAYOR OF NEW YORK CITY, e¢ ai.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

Francis T. Coleman

Donald L. Rosenthal

LOOMIS, OWEN, FELLMAN

& COLEMAN

Attorneys for Petitioners

i 2020 K Street, N.W.

Of Counsel: Washington, D.C. 20006

Townley & Updike (202) 296-5680

220 East Forty-Second Street

New York, New York 10017

(212) 682-4567

THE CASILLAS PRESS. INC -1717 K Street N W —Wastington, O. C -223-1220

Opinions below

Jurisdiction

Questions presented

Constitutional provisions involved

Statutes involved

Mayoral Executive Order involved

Statement of the Case

Reasons for Granting the Writ

1.

tw

(i)

INDEX

The Decision Below Conflicts With This Court's

Decisions Delimiting The Basis Upon Which A

Local Municipality May Exercise Its Police

er al ri et ae ee

The Decision Below Raises Important Questions

Of Federal Law Which Have Not Been, But

Should Be Settled. Concerning The Application

Of This Court's Labor Law Pre-emption

Doctrine To Municipal Enactments Which

Exclude Non-union Business Establishments

From Performing Municipally-financed

Contracts Solely Because Of Their Status As

FORGO INES, 0 cc vccedececesccesss

The Decision By The Second Circuit Is In

Conflict With Applicable Decisions Of This

Court And Subverts Established Principles

Underlying The Federal Labor Law Pre-emption

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(ii)

CITATIONS

Cases: Page

Amalgamated Ass'n of St., Elec. Ry. & Motor

Coach Employees v. Lockridge, 403 U.S. 274(1971) .......... 1S

Amalgamated Ass'n. of St., Elec. Ry. & Motor Coach Employees

v. Wisconsin Employment Rel. Bd., 340 U.S. 383(1951) ....... 1S

Auto Workers v. O'Brien, 339 U.S. 454 (1950)... 2. oe ee 14

Connell Const. Co. v. Plumbers & Steamfitters

Rates FE, Ge Gs Gee ob cc cc cvcccccccccscesweoses 1S

Dandrige v. Williams, 397 U.S. 471 (1970) ©... 6 ee eee eee 11

Eisenstadt v. Baird, 40S U.S. 438 (1972) . 2... 6. eee 10

GME v. Plarddin. TES. U.S. SIBUIGAD 2. wee cece cccccccceccees 14

Machinists and Aerospace Workers v. WERC, 427 U.S. 132(1976) . 15

Nash v. Florida Indus. Comm. 389 U.S. 235(1967) .. 2... 00.045. 15

New Orleans v. Dukes, 427 U.S. 297 (1976)... 2... eee 11

New York Telephone Co., et al. v. New York State Department

of Labor, et al., F.2d , 96 LRRM2921, cert. granted

SO Pa buch ahs adectbdpseenesetecece 14

SOO, TN, GS rey FR GNOVED 6 van ceived ccccvegstsshecnner 10

Royster Guano Co. v. Commonwealth of Virginia.

Nga EES FOS SAE acon 10

San Diego Building Trades Council et al. v. Garmon, et al.

re Pe ee Ter re 14.15

(iii)

Page

UNITED STATES CONSTITUTION CITED

PS ON RP er ere re er 3

Fourteenth Amendment........... cake Saee aay eS er ee kOKes 3

STATUTES CITED

National Labor Relations Act ..... 0... 20 eee eee eee eens 3

29 U.S.C. (Taft-Hartley Law): Sec. 157... 6... eee eee eee §. 13

MUNICIPAL EXECUTIVE ORDERS

Executive Order of Mayor LaGuardia

April 12,1934 20... . cee cece eee eee eee eeeee 4, 32a-33a

MISCELLANEOUS

Cox, Labor Law Pre-emption Revisited, 85 Har.

A BOD o.y < hnae bee Se Serres neeteredsocesees 14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

IMAGE CARRIER CORPORATION,

HOUSE OF LITHOGRAPHY. INC..

ASSOCIATED LITHO AND LETTERING

SERVICE, INC.,

Petitioners,

Vv.

EDWARD I. KOCH,

MAYOR OF NEW YORK CITY, et ai.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND C:RCUIT

Petitioners pray that a writ of certiorari issue to review

the judgment and opinion of the United States Court of Ap.

peals for the Second Circuit in this case.

THE OPINIONS BELOW

The opinion of the Court of Appeals for the Second Cir-

cuit is officially reported at 567 F.2d 1197 and appears in

the Appendix hereto (2a-17a). it reversed the decision of the

5

United States District Court for the Southern District of

New York (MacMahon, J.), reported at 430 F. Supp. 579

which held that the Respondents”' restrictive bidding and

contracting practices, requiring that certain of Respon-

dents’ printing work be required to display the union label,

were arbitrary and irrational, not reasonably related to any

legitimate governmental purpose and therefore violative of

the equal protection clause of the Fourteenth Amendment

of the Constitution of the United States.’

JURISDICTION

The judgment of the Court of Appeals for the Second

Circuit was entered on December 30, 1977. A timely

Petition for Rehearing with a suggestion for a hearing en

banc was denied by the Second Circuit on February 16,

1978, and this Petition for Certiorari was filed within ninety

days of that date.’ This Court’s jurisdiction is invoked

under 62 Stat. 928, 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether a municipality may arbitrarily preclude non-

union printers from bidding on and being awarded city

printing contracts financed by taxpayer monies solely

because of their status as non-union printers?

2. Whether Congress, in establishing a national labor

policy protecting an employee’s right to accept or reject

' This action was originally brought against Abraham D. Beame in

his capacity as Mayor of the City of New York, City administrative

agencies and various individual members of these agencies. See pages

34a-36a herein for a complete list of original Respondents and those in-

dividuals currently holding positions held by the original individual

Respondents.

* See pages 18a-30a for the opinion on the District Court.

’ See page la herein for Order of Second Circuit denying Petitioners’

Petition for Rehearing.

3

union representation, intended that a municipality be per-

mitted to promulgate a policy, the effect of which is to force

employees to affiliate with a labor organization in order for

their employer to be awarded certain municipally funded

contracts?

CONSTITUTIONAL PROVISIONS INVOLVED

Article VI, Clause, 2, of the United States Constitution

provides:

This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof;

and all Treaties made, or which shall be made,

under the Authority of the United States, shall be

the supreme Law of the Land; and the Judges in

every State shall be bound thereby, any Thing in

the Constitution or laws of any State to the Con-

trary notwithstanding.

Section 1 of the Fourteenth Amendment provides:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or en-

force any law which shall abridge the privileges or

immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

STATUTES INVOLVED

The pertinent federal labor policy is embodied in the

National Labor Relations Act, as amended (hereinafter

“NLRA”,) 29 U.S.C. §§141 et seq. and is described at pages

12-15, infra.

4

MAYORAL EXECUTIVE ORDER INVOLVED

In relevant part, Mayor LaGuardia’s 1934 Executive Or-

der provides:*

Resolved, that in order to lend the greatest

measure of aid and assistance during the present

economic depression to those citizens of our City

engaged in the various branches of the printing

industry, the following provisions be made a part

of each and every contract and open market order

issued by the Board of City Record;

To this end, the Order goes on to state:

1. That all printed forms hereafter purchased for

the use of the City of New York by the Board

of City Record shall bear the label of the Allied

Printing Trades Council of the City of New York.

This rule shall not apply to letterheads and en-

velopes.

2. That all bidders be required to certify they

operate a union plant and pay the prevailing

rate of wages in all divisions of their establish-

ment...

STATEMENT OF THE CASE ‘

A. The Proceedings Below

This action was commenced on July 24, 1974, in the

United States District Court for the Southern District of

New York. Invoking the jurisdiction of the court pursuant

to 42 U.S.C. §1983 and its jurisdictional counterpart, 28

U.S.C. §1343(3), the Petitioners sought declaratory and in-

junctive relief pursuant to 28 U.S.C. 2201 against Respon-

* The full text of the Executive Order appears at pages 32a-33a

herein.

5

dents’ practice of restricting bidding upon, and awarding

printing contracts to, only those printing establishments

whose employees were represented by labor organizations

and entitled to exhibit the union label.

As grounds for such relief, the Petitioners alleged that

the restrictive practices deprived them of opportunities to

bid upon and be awarded City financed contracts in

violation of rights guaranteed them by the due process and

equal protection clauses of the Fourteenth Amendment of

the United States Constitution. Further, the Petitioners

alleged that the Respondents’ restrictive bidding and con-

tract awarding practices infringed upon the rights guaran-

teed employees under 29 U.S.C. §157, i.e. the right to reject

labor union representation.

A non-jury trial was held on December 6, 1976 before

Judge MacMahon. In his decision filed April 8, 1977, Judge

MacMahon found that the Respondents’ policy and prac-

tice of bidding upon and awarding printing contracts only

to those printers whose employees are represented by labor

unions and who exhibit a union label, violated the equal

protection clause of the Fourteenth Amendment. On April

20, 1977, Judge MacMahon filed an order and judgment in

which he stayed enforcement of his order pending Respon-

dents’ appeal to the United States Court of Appeals for the

Second Circuit.

Timely notices of appeal to the Second Circuit were filed

by the Respondents and on December 30, 1977, a panel of

the Second Circuit (in a split decision per Judge Oakes),

reversed the lower court decision of Judge MacMahon on

the merits. Circuit Judge Anderson filed a concurring and

dissenting opinion in which he contended that the decision

of the District Court should be upheld.

Petitioners’ timely motion for rehearing with a sug-

gestion for a rehearing en banc was denied February 16,

1978.

6

B. The Facts

On April 12, 1934, the City of New York, pursuant to

Executive Order of Mayor LaGuardia, adopted a policy

restricting the awarding of all city printing contracts, ex-

cept for the printing of letterhead and envelopes, to those

private printing establishments whose employees were

represented by a labor organization and etitled to display

the union label.

Pursuant to this Mayoral Order, printing contracts

awarded by the City subsequent to the effective date of the

Order (April 20, 1934), have been restricted exclusively to

printing establishments which are authorized to display the

union label on their printed material. Implementing this

44-year-old procurement policy, the Respondent city agen-

cies have included in their bid solicitations the specific

requirement that work must be performed in a unionized

facility and that such work, with the exception of let-

terheads, and envelopes, must bear the union label.

The ramifications of Respondent's restrictive bidding

and contracting policy was clearly described in the court

below. In a city where the increasing majority of printing

establishments are non-union (350 non-union establish-

ments, 250 union establishments), the policy contained in

the 1934 Mayoral Order has had the effect of, ipso facto,

foreclosing all non-union printing establishments from bid-

ding upon and being awarded most city printing contracts.

This exclusionary policy disqualifies all non-union printing

companies from performing city work, notwithstanding the

fact that the majority of those non-union companies, in-

cluding the three named Petitioners herein, are fully

qualified to perform the types of printing for which the city

normally contracts. In fact, each of the Petitioners have

performed work similar to that required by New York City

for both private and public sector clients.*

The District Court below held that Respondents’ restric-

tive bidding and contracting practices were arbitrary and

irrational and not reasonably related to any legitimate

governmenta! purpose. In so holding, the court rejected

Respondents’ assertions that the restrictive bidding policy

served to effectuate New York law requiring the payment of

prevailing wage rates to workers under public contract; to

further the City’s interests in obtaining work of good

quality; and to facilitate the policy of enforcing printers

claims for overtime wages. Accordingly, the court con-

cluded that the Respondents’ policy of restricting the bid-

ding upon and awarding of printing contracts to those

printing establishments whose employees are repre-

sented by labor organizations and who may exhibit the

union label, violated the equal protection clause of the

Fourteenth Amendment.

In its decision per Judge Oakes, the Majority of the Panel

of the Second Circuit reversed the District Court’s decision,

holding that the Respondents’ restrictive bidding and con-

tracting practices rationally promoted the City’s interest in

* As a general rule, the type of printing work awarded by the Respon-

dent agencies is uncomplicated. The testimony of Mr. Ed. Blank,

Director of Printing Management of Printing Industries of

Metropolitan New York (a trade association composed of both union

and non-union printers), disclosed that most of the printing work award-

ed is generally one sheet work or booklets that can be done on the sim-

plest and smallest type of printing equipment. According to Mr. Blank,

the fact that one employer is unionized and another is not, had no

bearing on the type or quality of work likely to be performed. Mr.

Blank further observed that in order to assure high levels of quality and

employee productivity, both union and non-union printers must have

good management, up-to-date technology and well-trained employees,

and that the question of union or non-union status played no part in the

achievement of these goals.

fostering and promoting collective bargaining. Having

discovered what it deemed a legitimate state interest behind

the City’s policies, the Panel concluded that, although the

Mayoral Order may now be outdated, any re-evaluation of

the Order should be achieved through legislative rather

than judicial action.

Circuit Judge Anderson filed a strongly-worded con-

curring and dissenting opinion in which he concluded that

the Panel Majority erred in reversing the judgment of the

lower court on the merits. As viewed by Judge Anderson,

the Majority’s acceptance of the “foster collective

bargaining” justification (an argument first raised by the

Respondents during oral argument) was totally inap-

propriate since at no time, either before or during the

District Court proceeding, did the Respondents advance

such a justification. Further, Judge Anderson argued that

the record below contained no evidence which would sup-

port a conclusion that the challenged restrictive bidding

and contracting practices do, in fact, foster collective

bargaining. As such, Judge Anderson concluded that, in

the absence of proof supporting this conclusion, the

Majority’s adoption of Respondents’ eleventh hour

justification for their restrictive bidding and contracting

policies was totally unwarranted.

b

‘

THE REASONS FOR GRANTING A WRIT

The significance of this case not only to non-union

printing companies and their employees, but to all non-

union private sector employers and their employees cannot

be too strongly stated.

The sole question herein presented is the legality of a

municipal contracting policy which openly and admittedly

discriminates against non-union printing establishments.

a” policy deprives non-union printing employers and

their employees of the opportunity to bid upon and perform

9

private printing contracts financed by New York City tax-

payers solely because of their non-union status—thus

penalizing those employees who have mutually agreed to

conduct their employment relationship in a non-union en-

vironment. This exclusion of open shop printing companies

from eligibility to bid upon and be awarded public con-

tracts, financed through public funds and issued by a tax-

supported governmental body. raises basic and fun-

damental questions which require the attention of this

court.

The Second Circuit’s decision, upholding the con-

stitutionality of the 1934 Mayoral Order and the con-

tracting practices initiated pursuant thereto, calls into

question the continuing viability of the numerous decisions

of this Court which hold that governmental police power

measures which are arbitrary and irrational and not

reasonably related to any legitimate governmental purpose

are to be struck down as repugnant to the Fourteenth

Am2ndment of the United States Constitution. Moreover,

the decision below is in direct conflict with this Court’s

decisions defining the scope and force of the labor law

preemption doctrine and, as such, raises similar questions

to those raised in the Second Circuit's decision in New York

Telephone Company, et al. v. New York State Department

of Labor, et al., F.2d ___, 96 LRRM 2921, which was

recently granted review by this Court, U.S. Sup. Ct. No. 77-

961.

1. The Decision Below Conflicts With This Court's

Decisions Delimiting The Basis Upon Which a Local

Municipality May Exercise Its Police Power.

In its decision below, the District Court found that Re-

spondents’ policy of rejecting bids on public printing con-

tracts solely on the basis of the non-union status of the bid-

der was patently arbitrary and irrational and, consequently,

in violation of Petitioners’ rights as guaranteed by the Four-

10 «

teenth Amendment. In holding Respondents’ restrictive

contracting policies unconstitutional, Judge MacMahon

placed his reasoning squarely in line with the body of law

which holds that where a jocal government exercises its

police power in such a way as to construct classifications of

persons, such classifications must “e reasonable, not ar-

b..rary, and have a fair and substantial relation to a

legitimate government objective. Royster Guano Company

v. Virginia, 253 U.S. 412; Reed v. Reed, 404 U.S. 71; Eisen-

stadt v. Baird, 405 U.S. 438.

-

In his decision below, Judge MacMahon correctly ap.

plied the rational basis test. Judge MacMahon had before

him ample evidence upon which to justifiably conclude that

Respondents’ union label policy was violative of the equal

protection clause. The record is replete with testimony

which establishes the irrationality of Respondents’ restric-

tive bidding policy. The record also clearly supports the fin-

ding that the Petitioners have the capabilities to perform,

and do, in fact. perform the type of printing jobs which the

City presently restricts to only unionized printers.

At the trial, the Respondents were given every op-

portunity to show how the challenged restrictive bidding

and contracting practices in any way furthered a legitimate

State interest. Such a showing was not and could not be

made. Since Respondents failed in their efforts to show how

the res‘rictive bidding and contracting practices furthered

som* identifiable state purpose, the District Court was

corr?ct in finding such practices to be violative of the Four-

teenth Amendment.

In reversing the District Court's decision on the merits,

the Second Circuit rejected findings which were totally sup-

ported by the record and substituted a finding that the pur-

pose of the Mayoral Order was “to foster collective

bargaining.”’ Such an imputation of purpose by the Second

Circuit finds no support in the record.

1]

2

In his concurring and dissenting opinion, Judge An-

derson correctly identified the fallacy of the Majority’s ef-

forts to substitute purposes other than the explicit purpose

set forth in the Order itself. In this regard, Judge Anderson

stated:

The preamble of the Executive Order of April

12, 1934, simply states: ‘RESOLVED, that in or-

der to lend the greatest measure of aid and

assistance during the present economic

depression to those citizens of our City engaged in

the various branches of the printing industry, the

following provision be made a part of each and

every contract and open market order issued by

the Board of City Record.’ . . . No more expansive

legislative history accompanies the resolution; no

further explanations of its purposes were offered

when subsequent administrations made executive

decisions to continue the restrictive practice; and

no mention of a desire to promote collective

bargaining was ever made in connection with this

‘union shop only’ policy. (14a-15a)

When local economic regulations are challenged as

violating the Equal Protection Clause, this Court has de-

ferred to legislative determinations concerning the

desirability of particular statutory distinctions, provided

that the challenged classification is rationally related to a

legitimate state interest. New Orleans v. Dukes, 427 U.S.

297 (1976); Dandrige v. Williams, 397 U.S. 471 (1970). In

this case, however, Respondents failed to show that the

City’s ban on the use of non-union labor in performing cer-

tain public printing contracts had any bearing upon the

state's interest in collective bargaining, the payment of the

prevailing wage rate or the City’s interest in ob-

taining high quality workmanship. Indeed, even if there

were Executive history to support the “foster collective

| Pe

bargaining” rationale, such Executive intent, if interpreted

to absolutely bar a non-union employer's participation in

the competitive bidding process, would certainly run afoul

of the Fourteenth Amendment.

Conflicting as this case does with numerous other

decisions of this Court concerning a municipality's use of its

police power, this case presents compelling issues which

should be addressed by this court.

2. The Decision Below Raises Important Questions Of

Federal Law Which Have Not Been, But Should Be

Settled, Concerning ftte Application Of This Court’s

Labor Law Pre-emption Doctrine To Municipal Enac-

tments Which Exclude Non-Union Business

Establishments From Performing Municipaily-

Financed Contracts Soley Because Of Their Status As

Non-Union Employers.

This case presents the opportunity for this court to ad-

dress the specific issue of whether a municipality or a

municipal agency may, through the exercise of its police

power, infringe upon the federally protected right of an em-

ployer and his employees to establish or refrain from

establishing a collective bargaining relationship. In the in-

stant case, the City of New York has intruded on the exer-

cise of this right by depriving those employers and em-

ployees who maintain a non-union labor relationship from

the opportunity to bid upon and receive printing contracts

sporsored by New York City. The right of a municipality to

penalize employers and employees who have exercised this

federally protected right to maintain a non-union relation-

ship has not been previously presented to this Court.

The facts in this case clearly establish that the direct result

of Respondents’ restrictive contracting policies is to require

an employer and his employees to adopt a collective

bargaining relationship if they wish to perform Respon-

dents’ printing. Failure to adopt such a relationship bars

:

13

both the employer and his employees from the opportunity

to furnish such work tc the City. Furthermore, Respon-

dents’ restrictive contracting practices provide a sub-

stantial impediment to unionized employees in the exercise

of their federally protected right to decertify a labor

organization as their bargaining representative. Obviously,

employee awareness that a decertification of their union

would mean loss of City printing work and lost earnings op-

portunity provides a significant deterrent to the com-

mencement of any decertification effort — a right fully

protected by the National Labor Relations Act.

3. The Decision by the Second Circuit Is In Conflict with

Applicable Decisions of This Court And Subverts the

Established Principles Underlying The Federal Labor

Law Pre-emption Doctrine.

In its opinion, the Court below dismissed the Petitioners’

allegation that Respondent's restrictive contracting prac-

tices arising out of the 1934 Mayoral Order are pre-empted

by Section 7 of the National Labor Relations Act. In this

regard, the Court below states:

We do not believe that Section 7 of the NLRA pre-

empts and thereby invalidates the City’s

resolution under the supremacy clause of the Con-

stitution. Section 7 gives employees the right not

to join a union under certain circumstances.

Neither the City’s resolution nor its policy

memoranda in bidding instructions implementing

the resolution requires any employee to join a

union. Rather, the City’s policy merely prefers

union shops to non-union shops in awarding flat

form printing contract . . . (10a)

The only precedent cited by the court for reaching this con-

clusion is the Second Circuit’s own decision in New York

Telephone Co. et al. v. New York State Department of

14

Labor, et al., supra. Ironically, this case, which involves

issues similar to those raised herein, was recently granted

certiorari by this Court, U.S. Sup. Ct. No. 77-961.

It is respectfully submitted that the 1934 Mayoral Order

(and Respondents’ implementation thereof) interferes with

the Federal regulatory scheme established by Congress. It is

conceded by the Respondents that the award of most City

printing contracts is restricted to only those companies who

are authorized to affix the union label. Therefore,

Petitioners and their employees are forced to submit to

unionization, to the deprivation of their employees federally

protected Section 7 rights, if they desire to obtain the

economic benefits of being able to perform City printing

contracts. Under the Second Circuit’s ruling, the only

way that non-union printers may perform City printing

work is by becoming a unionized employer. However,

Federal law prohibits an employer from unilaterally taking

such action unless a majority of its employees elect to be

represented by a labor organization.

The pre-emption doctrine, as enunciated by this Court, is

designed to avoid competing regulations of labor relations

matters by state and local governmental bodies which un-

dermine the policies embodied in federal labor laws. In-

deed, in order to promote a ‘‘comprehensive national labor

law’ , this court has consistently declared invalid any state

regulatory scheme found to impair rights created by the

National Labor Relations Act. See Hill v. Florida, 325 U.S.

538 (1945); Auto Workers v. O'Brien, 339 U.S. 454; cf. San

Diego Bldg. Trades Council v. Garmon, 359 U.S. 236

(1959). See also, Cox, Labor Law Pre-emptions Revisited,

85 Har. L. Rev. 1337 (1972).

With the adoption of the National Labor Relations Act,

Congress regulated and occupied the substantive area of

labor relations ‘‘to the fu!! extent of its constitutionai power

under the Commerce clause’’. Amalgamated Ass'n. of St.

15

Elec. Ry. & Motor Coach Employees v. Wisconsin Em-

ployment Rel. Bd., 340 U.S. 383, 391 (1951). As such, the

Federal labor policy set forth in the National Labor Relations

Act pre-empts and voids any governmental actions which

have a tendency to frustrate the operation of the Federal

scheme; Nash v. Florida Indus. Commn., 389 U.S. 235

(1967) or which create a substantial risk of conflict w'’)

policies central to the Federal Labor Law. Connell Constr.

Co., Inc. v. Plumbers & Steamfitters Local 100, 421 U.S.

616 (1975). In the instant case, New York City’s action

clearly frustrates the exercise of federally guaranteed em-

ployee rights and directly conflicts with federal labor law

policy protecting the right of employers and employees to

establish and maintain a non-union employment relation-

ship.

Exceptions to the pre-emption doctrine have been coun-

tenanced in only the most limited of circumstances.° Since

none of these circumstances have any application to the in-

stant case, the Respondents’ restrictive practices should be

found to be pre-empted.

* Where the activity regulated by the State was merely a peripheral

concern of the Federal labor law (San Diego Bldg. Trades Council v.

Garmon, supra; Lodge 76, [AM v. Wisconsin Employment Relations

Commission, 427 U.S. 132 (1976); where such ,ocal governmental ac-

tivity touch interests so deeply rooted in local feeling and respon-

sibility that . . . (a court) cannot infer that Congress had deprived the

states of the power to act (id.); where Congress has affirmatively in-

dicated that the States have the power to act (Amalgamated Ass'n. of

St. Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274

(1971)).

16

CONCLUSION

The petition for a writ of certiorari to the United States

Court of Appeals for the Second Circuit should be granted.

Respectfully submitted,

By: FRANCIS T. COLEMAN

DONALD L. ROSENTHAL

Loomis, Owen, Fellman

& Coleman

2020 K Street, N.W.

Of Counsel: Washington, D.C. 20006

Townley & Updike

220 East Forty-Second Street

New York, New York 10017

Dated: May 15, 1978

Washington, D.C.

APPENDIX A

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of Appeals,

and for the Second Circuit, held at the United States Court

House in the City of New York, on the fifteenth day of

February, one thousand nine hundred and seventy -eight.

PTET TPT TT TCU OTTTITULUTTTLT TE TTTe x

Image Carrier Corporation,

Plaintiff-Appellee,

v.

Abraham D. Beame, Mayor of New York City, et al.,

Defendants-Appellants.

pesecesecens ned bees Obes ee cus eeceees 77-7205

House of Lithography, Inc., et al.,

Plaintiffs-Appellees,

v.

Abraham D. Beame, Mayor of New York City, et al.,

Defendants-Appellants

A petition for rehearing containing a suggestion that the

action be reheard in banc having been filed herein by coun-

sel for the appellees, and no active judge or judge who was a

member of the panel having requested that a vote be taken

on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

/s/ Irving R. Kaufman

Chief Judge

IRVING R. KAUFMAN

[Filed Feb. 16, 1978]

2a

APPENDIX B

UNTEED STATES COURT OF APPEALS

For THe Seconp Circuit

ian

4

S

Nos. 7, 80, 82—September Term, 1977.

(Argued September 20, 1877 ~~ Deeided December 30, 1977.)

Docket Nos. 77-7205, -7206, -7224

=~

=

[Mace Carrier Corporation,

Appellee.

v.

Asriuam 1D. Beame, Mayor of New York City, et al.,

Appellants.

Tir llouse or Litiocrapny, Ixc., et al.,

Appellees,

Vv.

Asevuam 1D. Beame, Mayor of New York City, et al.,

Appellants.

4

®

y

Before:

Situ, Anderson and Oakes,

Circuit Judges.

=a

i

Appeal from a judgment of the United States District

Court for the Southern Distriet of New York, Lioyd F.

MaeMahon, Judge, holding unconstitutional New York City

union and union-label bidding requirements for flat-form

printers, as a denial of equal protection to nonunion

3a

printers, The district court’s conclusions on abstention,

standing, ripeness and federal] preemption are upheld.

The judgment on the merits is reversed.

ee

Carotyx E. Demarest, Assistant Corporation

Counsel, City of New York (Bernard Rich-

land, Corporation Counsel, City of New

York), for Appellant New York.

Francis T. Cotemax, Washington, D.C. (Donald

L. Rosenthal, Washington, D.C., Townley

& Updike, New York, N.Y., of counsel), for

Appellee.

NorMaN Rotnretp, New York, N.Y., for Inter-

venor-Appellant.

—o

Oakes, Circuit Judge:

This appeal raises the specter of Lochner v. New York,

198 U.S. 45 (1905), which, with the possible exception of

Scott v. Sandford, 606 U.S. (19 How.) 293 (1857) (the Dred

Scott case), remains the most discredited of Supreme Court

decisions. We reject the attempt to resurrect this appari-

tion of the past.

At issue below,’ as well as on this appeal, is a policy of

the City of New York (City) whereby only printers em-

ploving union labor and exhibiting the union label are per-

mitted to bid for the City’s “flat-form printing” business.*

] The federal claims were presented pursuant to 42 U.S.C. § 1983 and

its jurisdictional counterpart, 28 U.S.C. § 1343(3). Declaratory relief

was sought under 28 U.S.C. § 2201, as was injunctive relief.

od “Flatbed printiy.” anotlLer term for flut-form printing. utilizes “a

printing press in whieh a flat bed holding the printing form moves

against a revolving cylinder which carries the paper.” The Random

House Dictionary of the English Language (1966).

ta

Utilizing traditional equal protection analysis, thereby

avoiding the substantive due process issue raised by ap-

pellees, the United States District Court for the Southern

District of New York, Lloyd F. MacMahon, Judge, found

the City’s practice “irrational” and hence unconstitutional.’

We reverse the district judge’s equal protection holding

ai.d find no violation of appellees’ due process rights. How-

ever, we agree with the district judge that this case is not

appropriate for abstention, that appellees have standing to

raise their constitutional claims and that Section 7 of the

National Labor Relations Act (NLRA)‘ does not preempt

the City’s practice of favoring union printers.

I

Facts

Appellees, plaintiffs in the district court, are non-union

printers. Appellants, defendants below, are City officials

who enforce the practice of restrictive bidding on flat-

form printing contracts. The Allied Printing Trades Coun-

cil of Greater New York, an umbrella organization of

printing unions, has participated in these proceedings as

intervenor.

The controversy arises over a Resolution (Resolution)

adopted April 12, 1934, by the New York Board of City

3 The opinion below is reported at 430 F. Supp. 579 (S.D.N.Y. 1977).

4 Section 7 of the National Labor Relations Act, 29 U.S.C. $157, pro

vides:

Emplorees shall have the right to self-organization, to form, join.

or assist labor organizations, to bargain collectively through repre

sentatives of their own choosing, and to engage in other concerted

activities for the purpose of collective bargaining or other mutual

aid or protection, and shall also have the right to refrain from any

or all of such activities except to the extent that such right may

be affected br an agreement requiring membership in a tabor or-

ganization as a condition of employment as authorized in section

15&(a)(3) of this title.

Sa

Record’ requiring bidders for flat-form work to operate

a union plant and to pay the “prevailing rate of wages.” *

In addition, the forms printed for the City must bear the

union label. These requirements are followed by the De-

partment of Purchase,’ the Board of Education*® and the

5 The Resolution, signed by Mayor LaGuardia and the then City Comp

troller and Corporation Counsel, provides in pertinent part:

1. That all printed forms hereafter purchased for the use of the

City of New York by the Board of City Record shall bear the label

of the Allied Printing Trades Council of the City of New York.

This rule shal] not apply to letterheads and envelopes,

2. That all bidders be required to certify they operate a unio:

plant and pay the prevailing rate of wages in all divisions of their

establishment.

6 This rate is determined in accordance with state law. N.Y. Labor Law

§ 220(5)(a) (MeKinney Supp. 1976) states:

The “prevailing rate of wage.” for the intents and purposes of

this article. shall he the rate of wage paid in the Jocalty as heres

after defined to the majority of workmen. laborers or mechanics 1)

the same trade or orcupation at the time the work is pertormed.

In the event that it be determined that there is not a majority in

the same trade or orcupation paid at the same rate, then the rate

paid to the greater number in such trade or occupation shal] he the

prevailing rate, provided sucli greater number constitutes at Jeast

forty per centum of the laborers, workmen or mechanics engaze/l

in such trade or orcupation: in the event there is less than forty

per centum of the laborers, workmen or mechanics engayed in the

same trade or occupation in the same locality paid the same rate.

then the average paid to such laborers, workmen or mechanics in

the same trade or occupation shall he the prevailing rate. Lal orers

workmen oF mechanics for whom a prevailing rate of were is to

be determined shall not be considered in determining such prevail

ing wage.

7 The Department's Supplement to Standard Instructions to Bidders

states:

Unless otherwise specified in the schedule. all work must le dene o

a union printing plant located within the City of New York. The

union label must appear on all printing except letterheads, note

heads and any other printing excepted in the schedule.

8 The Board's Bid Invitation for Jobs of $5.000 or Less includes the

language:

Unless otherwise specified. all printing required by this contract

except envelopes, must be done in a printing plant located withi:

6a

Health and Hospitals Corporation.‘ We need not question

the district court's factual findings that printing quality

is not a function of union status'® and that the 350 non-

union shops in New York, as compared to the 250 union

shops, come closer to paying the required prevailing wage

rate,’’ because we believe that a rational basis for the

Cii,y’s policy exists.

the City of New York. The union label must appear on all of the

forms, required under this contract, except letterheads, noteheads

and envelopes.

9 A December 3. 1971. memorandum of the Health and Hospitals Cor.

poration provides:

[T)he Health and Hospitals Corporetion will follow the procedure

established by the New York City Department of Purchase in whie!

letterpress or offset printing and all accessory operations as required

will be done in a union printing plant located within the Citr of

New York. The union label must appear on all printing except

letterheads and noteheads.

This poliey applies to the hospitals as well as Central Office pro

curement.

10 430 F. Supp. at 584.

11 The district judge found:

Even assuming that the purpose was to ensure that the prevail

ing wage rote is paid the evidence here refutes defendants’ can

tention that the chellenved classification rationally furthers that

purpose. We will assume, arenendo, that Section 229 of the New

York State Labor Law sets the prevailing wage rate. as defendant«

contend. That statute defines “the prevailing rate of wages” as that

rate paid to the majority of workmen, laborers or mechanics in the

same trade. It does not mention labor unions.

The only testimony hefore us concerning the employment statn<

of the “majority of workmen, laborers or mechanics” in the printing

trade is that there are 350 non-union. as compared to 259 nnion,

shops in a trade association known as Printing Industries of Metro

poltan New York. This evidence indieates that the prevailing wage

rate. »s defined br the statute on which defendants rely. follows

the non-union rate more closely than the union rate and, therefore.

undermines defendants’ contention that the union label requirement

safeguards perment of the prevailing wage rate.

Moreover, plaintiffs’ expert testified that there is no correlation

between the union or non-union status of a printing company and

the wage rates it pars to its emplovees: some non-union rates are

7a

Il

Discussion

A. Abstention

1. “Pullman” Abstention.

Judge MacMahon was correct in not exercising his dis-

cretionary authority under Railroad Commission vy. Pull-

man Co., 312 U.S. 496, 500-01 (1941), to abstain when

state law is uncertain and a state court construction might

obviate the need for federal constitutional adjudication.

This case, as in McRedmond y. Wilson, 533 F.2d 757, 759

(2d Cir. 1976), “does not present the narrowly limited

circumstances permitting invocation of the doctrine... .”

A decision on the constitutional claims does not depend

on an interpretation of unclear or complex state law. See

id. at 760, 762. There is no ostensible basis for inter-

preting the Resolution, or the bidding requirements im-

plementing it, to permit nonunion shops to do flat-form

printing for the City. Even if nonunion shops pay the

prevailing wage rate, see note 6 supra, they are neverthe-

less precluded from bidding heecanse the Resolution is

drafted in the conjunctive: the printer must be “a union

plant and pay the prevailing rate of wages.” (Mmphasis

added.) The union-status requirement is clear and with-

out ambiguity. Cf. Lake Carriers’ Association v. MacMul-

as high or higher than some union rates. He further testified that

union rates vary considerably.

Union rates, therefore, do not necessarily meet the prevailing wage

rate. More fundamentally, there is ne evidence here of any natural.

logica) or necessary correlation hetween the union wage rete on!

the prevailing wage rate. Nor is there any evidence showing any

reason why non-union rates might not ap)roximate the revs ling

wage rate as closely as union rates. The presumption of valid:ty

must vield to the evidence which showed that there was no logical

or even statistical correlation between the prevailing wage rate and

the union or non-union status of the printing company.

Id. at 584-85 (footnotes omitted).

Sa

lan, 406 U.S. 498, 511 (1972) (abstention appropriate where

Statute is unclear “in particulars that go to the founda-

tion of . . . grievance”).

2. “Younger” abstention.

Allied’s request for federal court abstention based on

Younger v. Harris, 401 U.S. 37 (1971), and subsequent

eases amplifying Younger, e.9., Juidice v. Vail, 430 U.S.

327 (1977); Huffman v. Pursuc, Lid., 420 U.S. 592 (1975),

is totally misplaced. There is no ongoing, see, ¢.¢.. Trainor

v. Hernandez, 431 U.S. 434 (1977), or even contemplated,

see Doran v. Salem Inn, Inc., 422 US. 922, 929 (1975),

state proceeding with which the federal action interferes.

While appellees claim that the Resolution is invalid under

state law, this is a wholly inadequate basis for invok-

ing federal court abstention.

B. Justiciability

1. Standing.

As prospective bidders for City business, appellees

clearly have economic interests at stake sufficient to give

them standing.** Their injury in fact is loss of business

which, even though indirect, is “fairly traceable to the de-

fendant’s acts or omissions.” Village of Arlington Heights

v. Metropolitan Housing Development Corp., 429 U.S. 252,

261 (1977). Since the trial court found that some non-

unic shops were perfectly capable of doing the City’s

12 Neither our decision nor that of the district court addresses thes

claims.

13 Appellees have standing even under the most restrictive of recen*

Supreme Court standing eases. s,. ¢.d., Simon v. Eastern Kentucly Wel.

fare Riahts Ora. 426 U.S. 26 (1976): Warth x. Seldin, 422 U.S. 49°

(1975), and of recent standing cases in this court, ser. ¢.0.. City of Hert

ford ¥. Town of Glastonbury. 561 F.24 1032 (24 Cir. 1977) (en bane’

petition for cert. filed. 48 U.SL.W. 3293 (TLS. Nov. 15. 1977) (No

77-639).

9a

work, 430 F. Supp. at 584, 585, appellees’ injury is a type

“likely to be redressed by a favorable decision.” Simon

v. Eastern Kentucky Welfare Rights Organization, 426

U.S. 26, 38 (1976).

2. Ripeness.

We read Allied’s standing argument as implicitly ques-

tioning the ripeness of appellees’ claims. Essentially, Al-

lied suggests that appellees should have bid for City work

and been turned down in order to present a justiciable

claim. However, it would have heen futile to do so since

it is obvious that they could not have heen awarded a

contract.

In United States Civil Serrice Commission v. National

Association of Letter Carriers, 413 U.S. 548 (1973), the

Court sud silentio found a ripe controversy in cireum-

stances virtually identical to those present in United Pub-

lic Workers v. Mitchell, 330 U.S. 75 (1947). The reason

for the different outcomes on the ripeness issue in Letter

Carriers and in Mitchell must have been the passage of

time and the ensuing accumulation of experience, inter-

pretation and administration of the Hatch Act. See P.

Bator, P. Mishkin, D. Shapiro & H. Wechsler. Hart and

Wechsler’s The Federal Courts and the Federal System

32 (2d ed. Supp. 1977). The record indicates that a nun-

ber of policy memoranda and contract forms have heen

developed to implement the union label rule, sce notes

7-9 supra, which was first promulgated in 1934. After

43 years of following its pro-union policy the City’s posi-

tion is amply developed. Requiring a nonunion shop to

undergo the expense of preparing a bid with the certainty

that it will be rejected imposes unnecessary financial! hard-

ship, see Abbott Laboratories v. Gardner, 387 US. 156,

153 (1967), without framing the issues more sharply.

10a

C. Preemption.

We do not believe that Section 7 of the NLRA, note 4

supra, preempts and thereby invalidates the City’s Reso-

lution under the Supremacy Clause of the Constitution.

Section 7 gives employees the right not to join a union

under certain circumstances. Neither the City’s Resolu-

tion nor its policy memoranda and bidding instructions

implementing the Resolution requires any employee to join

a union, Rather, the City’s policy merely prefers union

shops to nonunion shops in warding flat-form printing

contracts. Moreover, nothing in the sparsely developed

record indicates that the City’s flat-form printing needs,

as distinguished from either the City’s overall printing

needs or the total printing work available in and around

New York City, are substantial enough to have even an

indirect coercive effect on nonunion employees to aban-

don their Section 7 right not to join a union. Indeed, the

only relevant statistic in the entire record belies such an

effect: the obvious logical inference to he drawn from

the presence of 350 nonunion shops and 250 union shops

in the printing business in New York City is that print-

ing employees have not in substantial number relinquished

their Section 7 rights.’* Because appellees have nowhere

indicated how the City’s practice in any way alters the

collective bargaining relationship within nonunion shops.

there is no need to determine whether Congress intended

that federal labor law preempt those local practices which

do alter collective bargaining relationships. Cf. New York

Telephone Co. v. New York State Department of Labor,

No. 77-7337, slip op. at 6385 (2d Cir. Nov. 9, 1977) (even

where state unemployment compensation benefits paid to

striking employees may affect union’s ability to maintain

14 The record does not indicate whether the total number of nonunion

employees is greater than the total number of union emplovees.

lla

a strike, Congress intended to allow states to legislate

in this area).

D. The Merits

Just as the Due Process clause of the Fourteenth Amend-

ment did not “enact Mr. Herbert Spencer’s Social Statics,” **

the Equal Protection Clause of the same amendment’* did

not enact Professor Milton Friedman’s economics of the

marketplace.*” Since the days of the Depression the de-

clared policy of the nation has been to foster collective

bargaining, NLRA §1, 29 U.S.C. §151. Similarly, the

avowed policy of the State of New York, embodied in its

State Labor Relations Act, is to promote collective bargain-

ing:

It is in the public interest that equality of bargaining

power be established and maintained. It is likewise

recognized that the denial by some employers of the

right of employees freely to organize and the resultant

refusal to accept the procedure of collective bargain-

ing, substantially and adversely affect the interest of

employees, other employers, and the public in gen-

eral....

Experience has proved that protection by law of the

right of employees to organize and bargain collectively,

removes certain recognized sources of industrial strife

15 Lochner v. New York. 198 U.S. 45, 75 (1905) (Tlolmes, J., dissenting).

16 Justice Holmes’s famous statement in Lochner referred to the Four

teenth Amendment as a whole although the decision rested on the Due

Process clause. The Equal Protection clause, until Mr. Justice Jackson's

prescient concurrence in Railway Express Agency, Inc. v. New York, 336

U.S. 106, 111 (1949), had heen relegated to the status of the “last resort

of constitutional arguments.” Buck v. Bell, 274 U.S, 200, 208 (1927)

(Holmes, J.).

17 E.a., M. Friedman. There's No Such Thing as a Free Lunch (1975).

12a

and unrest, encourages practices fundamental to the

friendly adjustment of industrial disputes arising out

of differences as to wages, hours or other working

conditions, and tends to restore equality of bargaining

power between and among employers and employees,

thereby advancing the interests of emplovers as well

as employees."

In the depths of the Depression in 1934, when the Resolu-

tion was promulgated (although before the State Labor

Reiations Act was itself adopted), it was entirely rational

for the City fathers to believe that it was “in the public

interest that equality of bargaining power be established

and maintained” and that their pro-union Resolution would

restore “equality of bargaining power” to printing em-

ploye2s, remove “certain recognized sources of individual

strife and unrest,” raise “the purchasing power of wage

earners,” reduce unemployment, and lessen the effects

of “recurrent business depressions.” N.Y. Labor Law “ 700

(McKinney 1977). At least, that is what we read into the

preamble to the Resolution insofar as it refers to lending

“the greatest measure of and assistance during the present

economic depression” io those citizens engaged in the print-

ing industry.’® To be sure, times have changed. Perhaps,

as a matter of policy, favoring unionized emplovers should

18 N.Y. Labor Law § 700 (MeKinney 1977).

19 Intervenor’s answer, € 13, refers in addition to “special values” from

union labels and “assurances of craftsmanship,” to the Resolution’s pro-

moting “assurance of satisfactory working conditions collectively bar

gained on behalf of the employees, assurance of freedom from labor

disputes for the durations of said collective bargaining agreements.

effectuation of the public policy of the State of New York and other

benefits to the defendants... .” We helieve the court can and should

take judicial notice of the policies underlying the federal and state Jahor

relations acts, that the Intervenor advanced these policies as justification

for the Resolution hy its answer below, and that a city might rationally

think those policies promoted by the specifications here in issue.

I3a

be reexamined by the responsible authorities, now that both

the quality of printing and the wages paid may be roughly

equivalent. See 430 F. Supp. at 584-85. But reevaluating

the wisdom of the Resolution is a legislative decision. And

in economic matters, whether under the guise of substantive

due process, Ferquson v. Skrupe, 372 U.S. 726, 729-32

(1963) ; Williamson v. Lee Optical, Inc., 348 U.S. 483, 487-88

(1955); see Comment, 50 N.Y.U.L. Rev. 1149, 1152 & n.16

(1975), or of equal protection, City of New Orleans vy.

Dukes, 427 U.S. 297, 303 (1976): Dandridae vo Williams.

397 U.S. 471, 486-87 (1970) ; Williamson v. Lee Optical. Tue..

supra, 348 U.S. at 488-89, the courts have not, since the

days of the Depression, interfered with legislative judg-

ments rationally related to a legitimate governmental ob-

jective.

Judgment reversed.

—o

Awnverson, Circuit Judge, concurring in part. dissenting i

part:

I concur in those portions of the majority opinion which

uphold the district court's conclusions concerning absten-

tion, standing, ripeness and federal preemption. but I dis-

sent from the holding on the merits and the reversal of

the judgment of the district court.

At the trial below, appellants asserted that the City’.

restrictive bidding policy served several purposes: (1) to

effectuate New York law requiring the payment of the

prevailing wage rate to workers under public contract.

Labor Law §220(3); (2) to further the City’s interest in

obtaining work of good quality; and (3) to facilitate the

policing of printers’ claims for overtime wages. After

carefully considering the evidence presented in support of

these claims, the district court correctly rejected them.

14a

At no time before or during the trial did appellants

argue that the City's policy was designed to further the

federal and state interest in fostering collective bargain-

ing. See National Labor Relations Act §1, 29 U.S.C. $151;

New York Labor Law 6700. The appellants raised this

contention for the first time on appeal, and it is wholly

unsupported by any evidence in the record or any offer of

proof. See Sugarman v. Dougall, 413 U.S. 634, 645 (1973).

It was presented at oral argument as the principal justifi-

cation for the policy. The majority accepts this rationale,

and, relying on the language of Labor Law 6700, concludes

that the City’s pro-union Resolution reflects a considered

legislative judgment that such a policy will help to restore

equality of bargaining power to printing employees and

to lessen the effects of recurrent business depressions. In

the absence of supporting proof for these conclusions, the

majority's adoption of appellants’ eleventh hour justifica-

tion for the restrictive policy is unwarranted. Although

legislative economic classifications are presumed to be con-

stitutional, it is not evident that the pro-union Resolution

in question here is rationally related to the state's legiti-

mate interest in fostering collective bargaining. There has

heen no showing that the City’s bidding regulation wa-

intended to or does, in fact, promote this purpose. The

preamble to the Executive Order of April 12, 1934, simply

states: “Resolved that in order to lend the greatest meas-

ure of aid and assistance during the present economic de-

prescton to those citizens of our city engaged in the various

branche~ of the printing industry, the following provisions

he made a part of each and every contract and open market

order issued by the Board of City Record.” (Emphasi-

added.) As stated in an affidavit submitted by appellants,

the poliey was enacted to alleviate the high rate of un-

emplorment that confronted union emplovees in the print-

ing industry in New York City in 1934. No more expansive

1Sa

legislative history accompanied the Resolution; no further

explanations of its purposes were offered when subsequent

administrations made executive decisions to continue this

restrictive practice ; and no mention of a desire to promote

collective bargaining was ever made in connection with

this “union shop only” policy.

Appellants concede that the Resolution is no longer jus-

tified by a need to keep printing businesses in New York

City or to provide jobs for union workers. See Abie State

Bank v. Bryan, 282 U.S. 765 (1931). Instead, they argue

tnat it has other beneficial effects for the City. Thev at-

tempted to demonstrate its importance at the trial, but

failed even to discuss its relationship to the goal of collec-

tive bargaining or the purposes of New York Labor Law

§700.

The majority cannot rely upon this state statute, how-

ever, because it was not added to the New York Labor Re-

lations Act until 1940—six years after the promulgation of

the pro-union Resolution—and, therefore, an effort to fur-

ther its purposes cannot be imputed to the signers of the

Executive Order. Moreover, it is significant that while

§700 is designed to promote collective bargaining, it makes

no effort to preclude non-union shops from bidding on pub-

lic works contracts. General Municipal Law 6103 makes it

clear that, except as otherwise expressly provided by a

local law adopted prior to September 1, 1953, contracts

for public work, including printing contracts, are to be

awarded to the lowest responsible bidder. The “lowest re-

sponsible bidder” has been held to include non-union as

well as union shops, see Apex Indust. Const. Corp. v. Vil-

lage of Lake George. 31 A.D.2d 670, 295 N.Y.S.2d 548

(1968); Long Island Signal Corp. v. County of Nassau, 51

Mise.2d 320, 273 N.Y.S.2d 188 (1966): and, therefore, agen-

cies of New York State could not lawfully refuse to award

l6a

a contract to a successful bidder solely because it employed

non-union workers.

When local economic regulations are challenged as vio-

lating the Equal Protection Clause, the court will defer to

legislative determinations as to the desirability of partic-

ular statutory discriminations, provided that the classifica-

tion challenged is rationally related to a legitimate state

interest. New Orleans v. Dukes, 427 U.S. 297 (1976);

Dandridge v. Williams, 397 U.S. 471 (1970). In this ease,

appellants have failed, however, to show that the City's

ban on the use of non-union labor in performing certain

public printing contracts has any bearing upon the state's

interest in collective bargaining or the payment of the pre-

vailing wage rate or to the City’s interest in the ability of

the printing shops reliably to perform high quality work.’

Cf. Sugarman v. Dougall, supra.

The City is a corporate body and, as such, it may enter

into contracts and hold and dispose of property. When it

does so, however, it acts as trustee for the people of the

City, and it is in this trust capacity that, in the City’s name,

it enters into contracts and expends the people’s money

through a city government of the people’s own creation.

The city, therefore, has an obligation to conserve public

funds. To this end, regulations were enacted to govern

bidding on public contracts to ensure that such contracts

are awarded to the lowest responsible bidder. These regula-

tions are designed to benefit the public, not the bidders.

See General Bldq. Contractors v. Bd. of Trustees, 42 A.D.2d

660, 345 N.Y.S.2d 195 (1973); Allen v. Eberling, 24 A.D.2d

1 Appellants would have this court take judicial notice that union print

ing shops would be more reliable in meeting contract deadlines than

non-union shops because labor disruptions would be minimized. They

have introduced no evidence to support this claim and the court should

not take it upon itself to attribute irresponsibility in labor matters te

the owners of non-union shops where there has been no proof of such

conduct.

17a

594, 262 N.Y.S.2d 121 (1965); Marino v. Town of Ramapo,

68 Mise.2d 44, 326 N.Y.S.2d 162 (1971). They should not

be used to promote the interests of labor organizations by

forcing printing shops to unionize in order to qualify for

city contracts. Both union and non-union shops have a right

to apply for public printing contracts ou equal terms. The

conditions which must be met to receive the award of such

a contract must be reasonable and related to qualifications

for the job to be performed. In this case, appellants’ re-

strictive, “union shop only” policy fails to meet this test.’

Accordingly, 1 would affirm the judgment of the district

court.

3 If, instead of having before it the present case. this court were to he

presented with an attack by organized lalor on the obverse of the city’~

present policy, t.¢.. a policy restricting bidding on city printing contracts

to non-union shops only, there is little doult that the court vould bold

that such a resolution was inconsistent with state law designed to protect

the right of emplovees to freedom of association and organization. an?

that it was, therefore, invalid. New York Labor Law §712; see also,

Municipal Home Rule Law 610; Wholesale Laundry Bd. of Trade, Inc.

v. City of New York. 17 A.D.2d 327, 234 N.Y.S.2d 862, aff'd. 12 N.Y.

2d 998, 239 N.Y.S.2d 128 (1962); City of Corning v. Cornina Police

Dept., ©1 Mise.2d 294, 366 N.Y.S.2d 241, aff'd without opinion, 375

N.Y.S.2d 1022 (1975). State statutes which touch or concern labor rela-

tions, however, should be neutral, Lodge 76, International Ass. of Machin

ists Vv. Wisconsin Emp. Rel. Commission, 427 U.S. 132, 149-150 (1976):

New York Tel. Co. v. New York State Dept. of Labor. F.2d

(2d Cir. Nov. 9, 1977), slip op. at 6385; and although the New York

State Labor Relations Act encourages collective bargaining. it does not

mandate it; nor does it require that all labor performed for the state

or its subdivisions must be consummated by organized labor and by no

one else. By exerting economic pressure on unorganized emp lovees to

unionize, the city’s pro-union Resolution interferes, just as significantly

as would a “non-union only” policy, with asseciational freedoms pro

tected by state law; and, therefore, should not be declared lawful. The

impartial and even-handed administration of justice as well as the inter

ests of the public call for a balanced and fair approach which make-

neither the union employees nor the non-union emplovees an ineligille

class of bidders.

APPEARANCES:

18a

APPENDIX C

DISTRICT COURT DECISION

Opinion of MacMahon, J.

CounrHan, Casey & Loomis

By: James E. Anperson and

Francis T. Coteman, Esqs.

—and—

Town ey, Upprxe, Carter & Ropcers

By: Jrrome Coremay, Esq.

Attorneys for Plaintiffs

W. Bernarv Ricwianp, Esq.

Corporation Counsel

By: H. Kenneta Worre, Esq.

Asst. Corporation Counsel

Attorney for Defendants

Menacu, Trainor & RorHretp

By: Norman Rorure.p, Esq.

Attorneys for Intervenor Defendant

Allied Printing Trades Council of Greater

New York

19a

Opinion of MacMahon, J.

MacManon, District Judge.

Plaintiffs, non-union printers, allege that defendants’

practice of restricting bidding upon, and of awarding print-

ing contracts to, only those printing establishments whose

employees are represented by labor organizations and who

can therefore exhibit the union label deprives them of an

opportunity to bid on these contracts, in violation of their

rights under the due process and equal protection clauses

of the Fourteenth Amendment, and is contrary to New

York state law, the New York City Charter, and public

policy. They seek a declaratory judgment and an injunc-

tion prohibiting that practice.

A non-jury trial was held before us on December 6, 1976

to determine these issues, and the following constitutes our

findings of fact and conclusions of law.

Plaintiffs challenge the union label requirement on both

federal constitutional and state law grounds, and since

decision upon state grounds might avoid needless consti-

tutional adjudication, we must consider, in light of the

doctrine announced in Railroad Comm’n of Tezas v. Pull-

man Co., whether abstention is appropriate.

Abstention is an equitable doctrine and has its origins

in principles of federalism and comity.’ It serves to avoid

needless friction with, and demonstrates proper respect

for, state law and state courts. It is not a rule of neces-

sity,’ and the decision to abstain is vested in the sound

discretion of the district court. The doctrine is applicable

only in special circumstances* and only when the issue of

state law is uncertain,® as it is here. We do not think,

however, that abstension is warranted here because neither

party has even raised, much less requested abstention, and

the case, after considerable delay, has already been tried.’

Furthermore, there is no vital state or city interest, nor

elaborate regulatory program involved, and consequently

20a

Opinion of MacMahon, J.

the interference with the city’s administration of its own

affairs resulting from a determination that the union label

requirement is invalid would be minimal.’ Finally, the

constitutional question, whether the union label policy

violates the Fourteenth Amendment, is of very narrow

compass.”

Under these circumstances, we think that the injustice of

subjecting plaintiffs to added expense and delay outweighs

the advantages which may accrue from adherence to the

traditionai policy of avoiding constitutional adjudication

by abstention.”

The question of whether the union label requirement

violates state law or the New York City Charter is suffi-

ciently unsettled,’ especially as compared to federal con-

stitutional precedent in this area, to make a decision as

to its validity on that basis inappropriate. We, therefore,

proceed to consider the validity of the union label require-

ment under the due process and equal protection clauses.

There is no dispute that the Department of Purchase,”

which awards all the printing contracts for New York City,

the Board of Education’ and the New York City Health

and Hospital Corporation,'* have adopted a policy requir-

ing that all public printing work must be done in a union

plant located in New York City and bear the union label,

save for letterheads, noteheads or unless otherwise ex-

cepted. Defendants claim that this policy is justified be-

cause it rationally furthers legitimate municipal interests,

even though it deprives plaintiffs of an equal opportunity

to bid upon and to be awarded printing contracts.

We must determine, at the outset, whether the due proc-

ess and equal protection guarantees of the Fourteenth

Amendment are applicable to the award of public printing

contracts in light of Atkin v. Kansas” and its progeny.

The Supreme Court, in Atkin, upheld a Kansas statute

which regulated the pay and limited the hours of employees

2la

Opinion of MacMahon, J.

of the state, its subdivisions and public contractors. The

Court stated that, since the work was of a public character,

‘it is for the State to prescribe the conditions under which

it will permit work of that kind to be done. Its action

touching such a matter is final so long as it does not, by its

regulations, infringe the personal rights of others. . . .’"

Relying in part on Atkin, the court held, in American

Yearbook Co. v. Askew,* that a Florida statute requiring

all publie printing to be done in the state was not violative

of the equal protection clause because the award of such

contracts was a proprietary, or a business, rather than

a governmental function, and that, when a municipality

or state acted in such capacity, it was exempt from the

limitations of the equal protection clause.”

Since plaintiffs do not challenge the requirement here

that public printing be done in a plant located in New

York City, the specific holding in American Yearbook is

inapplicable. Furthermore, that holding could be sus-

tained on the principle that the equal protection clause is

confined to persons within the jurisdiction of the state

which enacted the challenged statute.’ In any event, the

Supreme Court has ruled that the due process” and equal

protection guarantees are applicable to public employ-

ment. While the coverage afforded by these two guaran-

tees often overlaps, the appropriate analysis under each

is different.**

The Supreme Court has rejected the right-privilege dis-

tinction employed in due process analysis by Atkin, as

well as a number of earlier cases.** Therefore, it no

longer suffices to say that, although a government may

not deprive someone of a right arbitrarily, it may do so in

the case of a privilege.** However, the plaintiff must still

demonstrate the deprivation of some liberty or property

interest protected by the Fourteenth Amendment in order

to invoke the due process guarantee.”

22a

Opinion of MacMahon, J.

Plaintiffs here have not addressed themselves to the issue

of whether their opportunity to bid on public contracts is

one of liberty or property within the meaning of the due

process clause, but we need not decide this issue since

we have determined that the union label requirement vio-

lates the equal protection clause.

The equal protection clause is a more explicit safeguard

than the due process clause,’ and its coverage is not con-

fined to deprivations of liberty or property. Although the

Supreme Court held that the equal protection clause was

not violated in Atkin, it clearly indicated that the clause is

applicable to public employment regulations* and, as

recently as Massachusetts Board of Retirement v. Murgia,”

has subjected such regulations to equal protection scrutiny

even though they were promulgated by the state in its

proprietary capacity as an employer.

We see no justification in the case law, the language of

the Amendment, or in reason for restricting the reach of

the equal protection clause. Indeed, such a course would

be fraught with danger to the very principles underpinning

the Amendment. We, therefore, turn to the question of

whether the union/non-union classification here violates

the equal protection clause.

Traditional equal protection analysis is a two-tiered sys-

tem. Strict scrutiny of a classification is required only if

the classification impermissibly interferes with the exercise

of a fundamental right or operates to the peculiar disad-

vange of a suspect class.*° If not, then the classification is

examined under the relatively relaxed rational basis stand-

ard, which requires only that the classification rationally

furthers a legitimate purpose identified by the state,” and,

under that standard, the classification is presumed valid.”

Since we find that the union label requirement does not

satisfy the rational basis standard,” it is unnecessary to

determine whether a strict scrutiny test should be applied.

23a

Opinion of MacMahon, J.

Defendants contend that the union label requirement

rationally furthers the city’s interest in obtaining good

quality work. The relevant equal protection inquiry, there-

fore, is directed to the quality of union, as opposed to

non-union, printing.

Plaintiffs’ expert testified that the quality of work does

not depend on the union or non-union status of the print-

ing establishment and that, in general, the work required

by the city did not require a high level of skill. Moreover,

three non-union printers testified that they could perform

the work required by the city with the requisite degree of

skill and competence. The roster of their representative

clients confirmed the good quality of their work.

We find, therefore, in light of all the evidence, that there

is no rational relationship between the union label require-

ment and the interest of the city in obtaining good quality

work.

Defendants also contend that the union label requirement

enables them to police effectively the city’s policy that em-

ployees receive prevailing rates of wages. We think that

justification is attenuated to the point of irrelevancy, but,

in any event, it fails on other grounds.

The union label requirement was established by executive

order in 1934 ‘‘to lend the greatest measure of aid and

assistance during the present economic depression”’ to

printing employees.“ That order also contained provisions

establishing the policy that prevailing wages should be paid

to printing employees and providing that if any question

were raised as to the wage rates of the lowest bidder, the

N.R.A. Compliance Board would be requested to submit a

report on the bidder’s compliance ‘‘with the code require-

ments.’’ We doubt that the union label requirement could

rationally have been intended to ensure that the prevailing

Wage rate is paid to printers’ employees because that

requirement was unnecessary in light of these other

provisions.**

24a

Opinion of MacMahon, J.

Even assuming that the purpose was to ensure that the

prevailing wage rate is paid, the evidence here refutes

defendants’ contention that the challenged classification

rationally furthers that purpose. We will assume, argu-

endo, that Section 220 of the New York State Labor Law

sets the prevailing wage rate, as defendants contend.

That statute defines ‘‘the prevailing rate of wages’’ as that

rate paid to the majority of workmen, laborers or mechan-

ics in the same trade. It does not mentioz !abor unions.

The only testimony before us concerning the employment

status of the ‘‘majority of workmen, laborers or mechen-

ics’’ in the printing trade is that there are 350 non-union,

as compared to 250 union, shops in a trade association

known as Printing Industries of Metropolitan New York.

This evidence indicates that the prevailing wage rate, as

defined by the statute on which defendants rely, follows the

non-union rate more closely than the union rate and, there-

fore, undermines defendants’ contention that the union

label requirement safeguards payment of the prevailing

wage rate.

Moreover, plaintiffs’ expert testified that there is no

correlation between the union or non-union status of a

printing company and the wage rates it pays to its em-

ployees; some non-union rates are as high or higher than

some union rates. He further testified that union rates

vary considerably.

Union rates, therefore, do not necessarily meet the pre-

vailing wage rate. More fundamentally, there is no evi-

dence here of any natural,” logical or necessary correla-

tion between the union wage rate and the prevailing wage

rate. Nor is there any evidence showing any reason why

non-union rates might not approximate the prevailing wage

rate as closely as union rates. The presumption of validity

must yield to the evidence which showed that there was no

logical or even statistical correlation between the prevail-

25a

Opinion of MacMahon, J.

ing wage rate and the union or non-union status of the

printing company. We, therefore, conclude that the chal-

lenged classification does not rationally further the city’s

interest in safeguarding the payment of prevailing wages.

The other arguments advanced by defendants in support

of the union label requirement are equally unpersuasive.

Their contention that the requirement facilitates policing

of printers’ claims for overtime wages because union rates

are more easily ascertainable is refuted by the undisputed

testimony of plaintiffs’ expert that all overtime rates must

be specified in every contract.

Defendants further argue that the city is benefited by

the union label requirement because it results in better

quality work due to the fact that the union operates schools

which keep abreast of the latest technology. The relevant

inguiry, however, is not whether the union conducts train-

ing programs but the comparative effectiveness of union

versus non-union programs. Here, again, the only evidence

before us is the undisputed testimony of plaintiffs’ expert

witness that the on-the-job training programs of non-union

shops are at least as, and perhaps more, effective than

training programs typically conducted outside the shop by

the unions. Moreover, we have previously found that there

is no correlation between the quality of work and the union

or non-union status of the printing shop. Finally, the

evidence refutes defendants’ contention that the union label

policy obviates the need for inspections of printing shops,

and we reject it.

Accordingly, we find that defendants’ policy and practice

of restricting bidding upon, and of awarding printing con-

tracts to, only those printing establishments whose em-

ployees are represented by labor organizations and who

can, therefore, exhibit the union label violates the equal

protection clause of the United States Constitution.”

26a

Opinion of MacMahon, J.

The foregoing constitutes our findings of fact and con-

clusions of law, in accordance with Rule 52(a), Fed.R.Civ.P.

Settle an order within ten (10) days not inconsistent

with this opinion.

Dated: New York, N. Y.

April 7, 1977

Lioyp F. MacManon

Luoyp F. MacManon

United States District Judge

27a

Opinion of MacMahon, J.

FOOTNOTES

* 312 U.S. 496, 500-01 (1941).

* See Hostetter v. Idlewild Bon Voyage Ls wor Corp., 377 US.

324, 328 (1964); Railroad Comm'n of Texas vy. Pullman Co., supra,

312 U.S. at 500-01.

om: See C. Wright, Law of Federal Courts § 19, p. 63 (2d ed.

>.

*See Harman v. Forssenius, 380 U.S. 528, 534 (1965).

*See Zwickler v. Koota, 389 U.S. 241, 248 (1967).

*See Harman v. Forssenius, supra, 380 U.S. at 534.

* Hostetter v. Idlewild Bon Voyage Liquor Corp., supra, 377

U.S. at 329; see Harris County Comm'rs Court v. Moore, 420 U.S.

77, 84 (1975); California v. LaRue, 409 U.S. 109, 124 n.2 (1972);

ef. Provident Trademens Bank & Trust Co. v. Patterson, 390 U.S.

102. 126 (1968).

* Hostetter v. Idlewild Bon Voyage Liquor Corp., supra, 377

U.S. at 329; see Harman v. Forssenius, supra, 380 U.S. at 534.

*Compare Idlewild Bon-Voyage Liquor Corp. v. Epstein, 212

F. Supp. 376, 382 (S.D.N.Y. 1962) (three-judge court), aff'd sub

nom. Hostetter v. Idlewild Bon Voyage Liquor Corp., supra, 377

U.S. 324, with Railroad Comm'n of Texas vy. Pullman Co., supra,

312 U.S. 496, and Public Utilities Comm’n v. United Fuel Gas

Co., 317 U.S. 456, 463 (1943),

* Idlewild Bon-Voyage Liquor Corp. vy. Epstein, supra, 212

F. Supp. at 380; see Allegheny County v. Frank Mashuda Co.,

360 U.S. 185, 196-97 (1959); Chicago vy. Atchison, T. & S. F. Ry.,

357 U.S. 77, 84 (1958).

*? Union label requirements have been the subject of previous

litigation in New York courts. An early case, Davenport v.

Walker, enjoined the awarding of a contract on the basis of such

a requirement, holding that the union label requirement was un-

constitutional and clearly against public policy. Davenport v.

Walkpr, 57 A.D. 221, 68 N.Y.S. 161, 164 (1901). See also

People ex rel. John Single Paper Co. v. Edacomb, 112 A.D. 604,

98 NYS. 965, 966 (1906).

However, two subsequent cases approved the requirement at

issue in this case. Burland Printing Co. vy. LaGuardia, 9 N.Y.S.2d

616, 618 (Sup. Ct. 1938); Amalithone Realty Co. v. City of New

York, 162 Mise. 715, 255 N.Y.S. 423, 425, aff'd, 297 N.Y.S. 262

28a

Opinion of MacMahon, J.

(1937). Recent New York decisions have cast doubt upon the

present validity of the union label requirement and the continued

vitality of the Amalithone and Burland cases. See Apex Indus.

Const. Corp. v. Village of Lake George, 31 A.D.2d 670, 295 N.Y.S.

9d 548, 549 (1968); Long Island Signal Corp. v. County of

Nassau, 51 Mise.2d 320, 273 N.Y.S.2d 188, 194 (1966).

2 See Master Printers Ass’n v. Board of Trustees of Junior

College Dist. 508, 356 F. Supp. 1355, 1357 (N.D. Ill. 1973); see

also Anthony P. Miller, Inc. vy. Wilmington Housing Authority,

165 F. Supp. 275, 279-80 (D. Del. 1958); Abstention in Constitu-

tional Cases, 122 U. Pa. L. Rev. 1071, 1100 (1974).

‘8 See plaintiffs’ Exhibit 1, Supplement to Standard Instrue-

tions to Bidders for Use in Printing Only, Form 23-L-46. Policy

established in 1934.

** See plaintiffs’ Exhibit 3, Standard Form of Contract Pre-

posal, Form C.E. 8 (Part 1). Policy established in 1939.

See plaintiffs’ Exhibit 5, Memo dated December 3, 1971,

from Mr. Brady, Assistant Sr. Vice-President, Finance, and Mr.

Katz, Director, Procurement. Policy established 1971.

© 191 U.S. 207 (1903).

* Id, at 224.

18339 F. Supp. 719 (M.D. Fla. 1972) (three-judge court),

aff'd without opinion, 409 U.S. 904 (1972).

Td. at 721-23.

2° Township of River Vale v. Town of Orangetown, 403 F.2d

684, 687 (2d Cir. 1968).

71 See Perry v. Sindermann, 408 U.S. 593, 599-603 (1972);

Board of Regents v. Roth, 408 U.S. 564, 571-78 (1972); See also

Thompson v. Gallagher, 489 F.2d 443, 446-47 (Sth Cir. 1973).

2 See Massachusetts Board of Retirement v. Murgia, 44 U.S.

L.W. 5077 (U.S. June 26, 1976); ef. Wieman v. Updegraff, 344

U.S. 183, 192 (1952). See also Kotch v. Board of River Port Pilot

Comm’rs, 330 U.S. 552, 556 (1947); Thompson v. Gallagher, supra,

489 F.2d at 446-47; Burt v. City of New York, 156 F.2d 791, 792

(2d Cir. 1946); Mando v. Beame, 398 F. Supp. 569, 572 (S.D.N.Y.

1975).

#8 See Bolling v. Sharpe, 347 U.S. 497, 499 (1954); 87 Harv.

L. Rev. 1842, 1844-45 (1974).

29a

Opinion of MacMahon, J.

** See Graham vy. Richardson, 403 U.S. 365, 374 (1971); Gold-

berg v. Kelly, 397 U.S. 254, 262 (1970).

*%* See Thompson v. Gallagher, supra, 489 F.2d at 446.

*¢See Board of Regents v. Roth, supra, 408 U.S. at 571-72.

*" See Bolling v. Sharpe, supra, 374 US. at 499.

** See Atkin v. Kensas, supra, 191 U.S. at 224.

*44 U.S.L.W. 5077 (U.S. May 26, 1976); see Thompson v.

Gallagher, supra, 489 F.2d at 446-47; Mando v. Beame, supra, 398

F. Supp. at 572.

* See Id. at 5079; San Antonio Independent School District

v. Rodriguez, 411 U.S. 1, 16 (1973).

* See Massachusetts Board of Retirement v. Murgia, supra,

44 U.S.L..'V. at 5079; San Antonio Independent School District

v. Rodriguez, supra, 411 U.S. at 40-41; Dandridge v. Williams,

397 U.S. 471, 485 (1970).

%2 See Massachusetts Board of Retirement vy Murgia, supra,

44 US.L.W. at 5079; San Antonio Independent School District

v. Rodriguez, supra, 411 U.S. at 40-41.

** See Massachusetts Board of Retirement v. Murgia, supra,

44 U.S.L.W. at 5078.

* See plaintiffs’ Exhibit 2, Extract from Minutes of Meeting

of Board of City Record, held Apri! 12, 1934.

%° See United States Dep’t of Agriculture v. Moreno, 413 US.

528, 536-37 (1973); Eisenstadt v. Baird, 405 U.S. 438, 452 (1972).

See also Fair Labor Standards Act. 29 U.S.C. § 206; N.Y. Labor

Law §§ 220, 652; Administrative Code of City of New York

§ 343-9.0 (a) (1) (f).

* But see 3 Op. State Compt. 293 (1947); 1943 Op. Atty.

Gen. 110, 111. There is nothing in the order establishing the pre-

vailing wage rate policy to determine how that rate is to be

determined other than the oblique and tangential reference to

“eode requirements,” presumably a “code of fair competition”

promulgated pursuant to the National Industrial Recovery Act,

which was declared unconstitutional in 1935. See A.L.A. Schechter

Poultry Corp. v. United States, 295 U.S. 495 (1935).

** See Massachusetts Board of Retirement v. Murgia, supra,

44 U.S.L.W. 5077, where the Supreme Court concluded that

mandatory retirement at age 50 for uniformed policemen rationally

30a

Opinion of MacMahon, J.

furthered the state’s purpose of protecting the public by assuring

the physical p ess of its uniformed police because fitness

for uniformed work generally and naturally diminishes with age.

8 See Hughes v. Alerandria Scrap Corp., 96 S.Ct. 2488 (1976),

where the Supreme Court upheld a Maryland statute whose pur-

pose was to rid Maryland of auto hulks, requiring more extensive

documentation from out-of-state than in-state unlicensed hulk sup-

pliers. The Court found the Legislature could reasonably assume

that a hulk destroyed by an out-of-state processor was more likely

to have been abandoned outside the state and that the documenta-

tion requirement, by making it easier for an in-state than an out-

of-state processor to receive bounties, tended to ensure that the

state’s limited resources were targeted to hulks abandoned inside

Maryland.

%* See Master Printers Ass’n v. Board of Trustees of Junior

College Dist. 508, supra, 356 F. Supp. at 1357; accord, State ex

rel. United Dist. Heating, Inc. v. State Office Bldg. Comm'n, 124

Ohio St. 413, 179 N.E. 138, 139 (1931), 125 Ohio St. 310, 181 N.E.

129 (1932); Marshall & Bruce Co. v. Nashville, 109 Tenn. 495,

71 S.W. 816-19 (1903). See also Annot., 110 A.L.R. 1406.

3la

Order of MacMahon, J.

ORDER

This ease having come on hearing upon Plaintiffs’ Com-

plaint for Declaratory Judgment and Injunctive Relief. and

the Court having rendered its opinion on April 7, 1977,

declaring that the practice of restricting bidding upon,

and the awarding of printing contracts to, only those

printing establishments whose employees are represented

by labor organizations and who can, therefore, exhibit the

union label, was violative of the equal protection clause

of the Fourteenth Amendment of the United States Con-

stitution, therefore, it is

OrpDERED, ADJUDGED and Decreep that:

(1) The Defendants’ policy and practice of restricting

bidding upon, and of awarding printing contracts to, only

those printing establishments whose emplovees are rep-

resented by labor organizations and who can, therefore,

exhibit the union label, is violative of the Equal Protec-

tion Clause of the United States Constitution;

(2) The Defendants are hereby enjoined from imple-

menting and enforcing che aforesaid policy and practice

of restricting bidding upon and awarding printing con-

tracts to only those printing establishments whose employ-

ees are represented by labor organizations and who can,

therefore, exhibit the union label.

(3) The order herein is stayed pending the disposition

of the appeal of this Order to the Second Circuit Court

of Appeals, on condition taken that the appeal be taken

and prosecuted within the minimum time provided by the

rules of that court without any extensions or adjournments.

Dated: April 20, 1977

Luoyp F. MacManon

U.S.D.J.

32a

APPENDIX D

COPY

Extract from minutes of meeting of Board of

City Record, held April 12, 1934. 11:15 A.M.

BOARD OF CITY RECORD

OFFICE OF THE SUPERVISOR

New York. April 12, 1934.

STEFHEN G. KELLEY,

Supervisor.

Resoivep, that in order to lend the greatest measure of

aid and assistance during the present economic depression

to those citizens of our City engaged in the various

branches of the printing industry, the following provisions

be made a part of each and every contract and open mar-

ket order issued by the Board of City Record;

1. That all printed forms hereafter purchased for the

use of the City of New York by the Board of City Record

shall bear the label of the Allied Printing Trades Council

of the City of New York. This rule shall not apply to letter-

heads and envelopes.

2. That all bidders be required to certify they operate

a union plant and pay the prevailing rate of wages in all

divisions of their establishment.

3. That wherever there may arise any doubt about the

wages paid and labor conditions in the shop of the lowest

bidder, on any contract or open market order issued by

the Board of City Record, the N.R.A. Compliance Board

be requested to submit a report on the bidder’s compliance

with the code requirements.

33a

4. That on all requests for bids a statement be included

that the City reserves the right to conduct an inspection

of the work to be performed at the shop of the contractor

during the process of manufacturing.

5. That the provisions of this resolution shall become

effective on and after the 20th day of April 1934, and

that the Supervisor of the City Record be, and he hereby

is instructed to see that each and every one of these provi-

sions are complied with.

ApoprTep, al] members voting in the aftirmative.

F. LaGuardia

Mayor

W. A. Cunningham

Comptroller

Paul Windels

Corporation Counse!

Supervisor of the City Record.

35a

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