# Petition — Image Carrier Corp. v. Koch > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1013%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 440 U.S. 979 ## Text = 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 "Se BEERS AES hE GES BA TIES nen 6620606606066 6.066 066608668 82866628 C6262 024244 © “BRARPOoawTERRARPERGERSRE AEB HReaeRVEARRER eR ARES R YT RPeR ae Fs “RAR PROoR@PewPeweeeew eee e Pere R eR Pe Pee FT “eevee eneneeeeneneneewneeneeeeeneeneeneeneeneee e@eeeeceneeaeva0eckedce oe e@2e0 6 e808 68286 ee 88 6 @ eee seoaeneeeoeeaeseuaedtceaedtcaedées € (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! 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Public record. Not legal advice.