Appendix — Local Union No. 35 of the International Brotherhood of Electrical Workers v. City of Hartford

Upreme Court, U. S.

rece D

No. MICHAEL RODAK, JR, CLER

In Che

Supreme Court Of The United States

OCTOBER TERM, 1980

LOCAL UNION NO. 35 OF THE INTERNATIONAL

BROTHERHOOD OF ELECTRICAL WORKERS,

Petitioner,

ay

v.

CITY OF HARTFORD, CITY MANAGER OF THE CITY

OF HARTFORD, COMMISSION ON HUMAN RELATIONS

OF THE CITY OF HARTFORD, CONTRACT

ENFORCEMENT COMMITTEE OF THE CITY OF HART-

FORD, AND RONALD FLETCHER, INDIVIDUALLY AND

AS SENIOR FIELD REPRESENTATIVE OF THE

COMMISSION ON HUMAN RELATIONS OF THE

CITY OF HARTFORD,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

APPENDIX OF PETITIONER

WILLIAM S. ZEMAN

JOEL M. ELLIS

18 North Main Street

West Hartford, Connecticut 06107

(203) 521-4430

Attorneys for Petitioner

TABLE OF CONTENTS

Opinion And Judgment Of The Court Of

Appeals For The Second Circuit .............

Opinion Of The District Court of Connecti-

cut Entitled ‘Ruling On Pending Motions’’...

Post- Judgment Ruling Of The District

Court Of Connecticut Entitled ‘“‘Ruling On

, er ee

Memorandum Of Decision Of The Contract

Enforcement Committee, City Of Hartford ...

. Judgment Of The District Court

ß ̃ .. ..

Denial Of Petition For Rehearing And

Suggestion For Rehearing En Banne

Hartford Code, Article X. Affirmative

0 tect 1 ne ae ee

7 >See

City Of Hartford Interdepartmental

Memorandum From Arthur L. Johnson To

Councilman Monteiro........................

Interdepartmental Memorandum From

Ronald Fletcher To Arthur L. Johnson.......

Article VII, Referral Procedure Excerpted

From Principal Labor Agreement Between

Local Union No. 35, IBEW And National

Electrical Contractors Association, Ine

Ai

A28

A56

A61

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 327 - September Term 1979

(Argued: February 11, 1280 Decided: June 13, 1980)

Docket No. 79-7253

LOCAL UNION NO. 35 OF THE INTERNATIONAL

BROTHERHOOD OF ELECTRICAL WORKERS,

Plaintiff-Appellant

CITY OF HARTFORD, CITY MANAGER OF THE

CITY OF HARTFORD, COMMISSION ON HUMAN

RELATIONS OF THE CITY OF HARTFORD,

CONTRACT ENFORCEMENT COMMITTEE OF THE

CITY OF HARTFORD, AND RONALD FLETCHER,

INDIVIDUALLY AND AS SENIOR FIELD REPRE-

SENTATIVE OF THE COMMISSION ON HUMAN

RELATIONS OF THE CITY OF HARTFORD,

Defendants-Appellees.

Before:

OAKES, VAN GRAAFEILAND, Circuit Judges, and

NICKERSON, District Judge*

*United States District Judge for the Eastern District of New York,

sitting by designation.

Al

Appeal from a judgment of the United States Dis-

trict Court for District of Connecticut, M. Joseph Blu-

menfeld, Judge, for defendants, denying declaratory and

injunctive relief.

Affirmed.

WILLIAM S. ZEMAN, ESQ. (Joel M. Ellis,

Esq., of counsel) West Hartford,

Connecticut for Plaintiff-Appellant

RICHARD F. BELLMAN, ESQ. (Eisner,

Levy, Steel & Bellman, P.C. New York,

New York; Hubert J. Santos, Corpora-

tion Counsel, Richard M. Cosgrove,

Deputy Corporation Counsel, Hartford,

Connecticut, of counsel) for Defendants-

Appellees

NICKERSON, District Judge

Plaintiff Local Union No. 35 of the International

Brotherhood of Electrical Workers (the Union) appeals

from a judgment entered for defendants in the United

States District Court for the District of Connecticut, M.

Joseph Blumenfeld, Judge. The defendants are the City

of Hartford (‘‘the City’’) and certain City agencies and

officials responsible for enforcing its Affirmative Action

Ordinance (the Ordinance’) and Affirmative Action

Plan (“the Plan). The Union is a labor organization

representing all electrical workers who work for any

employer with whom the Union has a collective bargain-

ing agreement in Hartford County, five other Connecti-

cut counties and one town in Rhode Island.

The complaint sought declaratory and injunctive

relief against enforcement of the Ordinance and the Plan

and alleged that as implemented they discriminate

A2

against nonminority Union members on the basis of race

and thereby violate the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitu-

tion, Title VII of the Civil Rights Act of 1964 (42 U.S.C.

$2000e-2(c)), the Connecticut Constitution, and various

provisions of the Connecticut General Statutes.

I

The events leading to the enactment of the ordi-

nance and Plan commenced in 1970, soon after the City

experienced serious disturbances in lower income mi-

nority neighborhoods. A group of community and civil

rights leaders approached Deputy Mayor Nicholas Car-

bone, a member of the Court of Common Council (“the

Council“) since 1969, and chairman of its committee

responsible for the City’s then building program of over

$100 million. The leaders protested the discrimination

against minorities in the building trades and insisted

that minority persons be given the opportunity to work

on the expected projects. They asked Carbone to try to

get the unions and the contractors to remedy the perva-

sive pattern of discrimination.

However, the agreed plan provided no method of

enforcement, and no further action was taken to imple-

ment it. Indeed, only a few of the union subscrib-

ed to what their representatives had negotiated. In mid-

1974 community and civil rights leaders again approach-

ed Carbone to complain. He then informed the building

trades representatives that the City could not be a

party to the exclusion of minority workers from Cit

A3

*

jobs and that he would introduce legislation to imple-

ment the agreed plan. At his request representatives of

the unions and the contractors helped draft the Ordin-

ance.

On February 9, 1975, the Council, the City’s chief

legislative body, adopted the Ordinance, reciting as its

purpose the ensuring of equal employment opportunity

for minority group persons and women! in the City’s

major construction contracts. Shortly thereafter, the

Council, pursuant to the Ordinance, adopted the Plan.

II

The Ordinance defines minority group persons“ to

include persons of Black, Puerto Rican, Spanish-Ameri-

can, Oriental or American Indian ethnic or racial origin

and identity and women, and declares and finds, among

other things, that

da) Many contractors, labor unions, hiring

halls, crafts and trades in the construction in-

dustry in the Greater Hartford area have dis-

criminated, and continue to _ discriminate,

against minority group persons and women.

Ib) It is the intention of the City not to aid or

abet such discrimination by awarding contracts

to contractors who practice or have practiced

discrimination against minority group persons

and women, or who have subcontracted to, or

engaged the services of, individuals and organi-

zations that deny or have denied equal employ-

ment opportunity to minority group persons

and women.

e) The continuing effects of past and present

discrimination against minority group persons

and women by the construction industry may

be prevented, mitigated and/or eliminated by an

affirmative action plan.

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d) There is a sufficient number of qualified

group workers and women in the Greater Hart-

ford Area to make such an affirmative action

plan feasible and desirable.”

The Ordinance requires all City construction con-

tracts providing for payments of at least $10,000 to

incorporate an Affirmative Action Plan to be adopted by

the Council establishing reasonable minimum percentage

goals for minority group and female employment in the

construction industry. Principal responsibility for en-

couraging the employment of minorities and women is

placed on the prime contractors. As a condition of

acceptance of their bids they must obtain from their

subcontractors and unions or other employment referral

organizations affidavits agreeing to the Plan.

Unions, such as the Union here, which do substan-

tial work outside the Greater Hartford Area and decline

to adopt the Plan as a contractual provision can be

certified as eligible to do city work if, among other

things, they have accepted or will in the immediate

future be accepting adequate minority and female parti-

cipation in their operations and have submitted an affi-

davit stating that they agree with and will make a good-

faith effort to comply with the Plan. A contractor or

union previously certified but not in compliance with its

affidavit is subject, after a public hearing to, among

other things, possible decertification and preclusion from

doing City work pending compliance or a good faith

effort to comply.

The Ordinance also provides for the designation of

one or more job referral banks, which are required to

seek out and compile lists by trade of all qualified

minority and female workers in the area and make those

lists available on request to any contractor or union.

The Council thereafter designated Project Leap of the

Greater Hartford Urban League as a job referral bank.

The Plan provides that those agreeing to it will

make every good faith effort to achieve employment of

minority and female employees of at least fifteen per-

cent on City projects and make a good faith effort to

implement this goal on non-city jobs. The Ordinance

defines good faith effort to mean “every reasonable

attempt to comply with the Ordinance and the Plan

and every possible measure! to achieve the level of

participation of minority and female workers established

by the Plan.

III

Incorporated in each of the union's collective bar-

gaining agreements with the contractors is a so-called

Principle Labor Agreement” negotiated by the Union

with the local chapter of the National Electrical Contrac-

tors Association, Inc. That agreement makes the Union

the sole and exclusive source of referral of applicants

for employment“ as electrical workers with the contract-

or and provides that applicants will be referred without

discrimination against them by reason of membership

or non- membership in the Union.“

The Principle Labor Agreement also provides that

the Union will maintain a register of applicants for

employment in four groups and an Out of Work List“

containing all applicants within each group in the chron-

ological order of the dates they sign the list. Referrals

are required to be made first from Group I in the order

of the applicants’ places on the list, then in the same

manner successively from the other groups. Thus no

applicants in a higher numbered group can be referred

unless all those in lower numbered groups are working.

Group I includes those applicants who have had

four or more years experience, are residents of the area,

have passed a journeyman’s examination given by the

Union or one of its affiliates or have been certified by

any Inside Joint Apprenticeship and Training Commit-

tee, and have been employed for at least one year of the

A6

last four under a collective bargaining agreement

between the Union and the contractor. Group II

includes applicants with the same qualifications except

that they are not required to be residents of the area or

to have been employed under a collective bargaining

agreement between the Union and the contractor. Group

III includes those who have had two or more years

experience, are residents of the area, and have been

employed for at least six months in the last three years

under a collective bargaining agreement between the

Union and the contractor. Group IV includes applicants

who have worked at the trade for more than a year.

IV

On October 31, 1975, the Union, which had collec-

tive bargaining agreements with numerous contractors

having City contracts, was certified under the Ordi-

nance, having submitted the requisite affidavit stating

that it would not discriminate, would eliminate any

effects of past discrimination, and would make a good

faith effort to comply with the Plan. Despite the provi-

sions of the collective bargaining agreements the Union

had not maintained or made referrals from an Out of

Work List“ for thirty years. However, in January 1976,

after adoption of the Ordinance and Plan, the Union

began to make referrals from such a list to all jobs in-

cluding City contracts. The City first learned of this in

January 1977 when several contractors advised the City

that they were unable to meet the Plan’s fifteen percent

goal as to electrical workers. Investigation revealed that

the Union was referring only those who had signed the

list and in the order in which they had signed.

Although in theory non-union applicants were free to

sign the list, in fact it contained only Union members.

Furthermore, everyone on the list was in Group I. As of

February 2, 1977, of the total Union membership of 550,

321 were not working. Of the 41 minority members (31

Black, 5 Spanish-surnamed, and 5 American Indian)

A7

seventeen were not working. Of the 321 on the list of

the first minority worker was number 85.

The City Manager ruled that the Union by making

referrals only from the list in chronological order was

not in compliance with the affidavit it had submitted to

obtain certification. He referred the matter to the Con-

tract Enforcement Committee of the Council. The Union

thereupon commenced this action, which was stayed

pending action by the Committee.

After holding hearings the Contract Enforcement

Committee on July 7, 1977, concluded that the Union

was not making a good faith effort to comply with its

affidavit and that unless the Union within thirty days

complied or showed a good faith effort to comply with

the Plan, the Union would be decertified. Final action on

the committee’s ruling was held in abeyance pending a

determination by the District Court.

In the hearings before District Court the parties

agreed that there were no material issues of fact in dis-

pute and made cross motions for summary judgment.

Although the Ordinance defines the term minority group

persons to include women, both parties treated the case

as involving only alleged racial discrimination.

Judge Blumenfeld postponed a decision pending the

decision in Regents of the University of California v.

Bakke, 438 U.S. 265 (1978). After that decision was

rendered the parties submitted further briefs. The court

then granted defendants’ motion on December 11, 1978,

462 F.Supp. 1271, and thereafter denied the Union’s

post-judgment motions.

A8

V

The Equal Protection Clause of the Fourteenth

Amendment prohibits the City from denying to any

person within its jurisdiction the equal protection of the

laws.“ The central issue in this case is whether non-

minority Union members are denied the equal protection

of the laws if the City disqualifies the Union from par-

ticipating in City construction work while the Union

makes referrals only from the “Out of Work List“ in

chronological order.

It is well settled that laws which brand persons as

inferior because of their color or race and thereby act as

a stimulant to race prejudice are inconsistent with the

Equal Protection Clause. Indeed, this was suggested as

early as a century ago in Strauder v. West Virginia, 100

U.S. 303, 308 (1880). By outlawing segregation in 1954

the Supreme Court in Brown v. Board of Education, 347

U.S. 483 (1954), gave concrete expression to the consti-

tutional mandate to eliminate such race consciousness

and prejudice. However, few would claim that since that

date the effort to eliminate discrimination has been an

unqualified success. In fact the failure to change by

racially neutral means the still widespread discrimina-

tion in our country had led to a variety of so-called affir-

mative action programs designed to advantage minority

persons.

Though racially conscious, these programs may pri-

marily be intended not as deferred recompense for past

injustices but rather as the most, perhaps the only, ef-

fective way in the long run to end or to mitigate racial

divisions and to bring about the moral equality of the

races. Affirmative action programs to the degree they

disadvantage nonminority individuals do so not on the

theory that such persons are inferior but on the suppo-

sition that unless such programs are implemented there

is faint hope of reducing race consciousness and of

assuring that the time will come when the treatment of

individuals will be based on their talent and not on their

race. 49

Undeniably there are risks in affirmative action pro-

grams. In the short run they may exacerbate rather

than diminish race consciousness. They may cause

resentment. They may foster the belief that some need

special advantages because they cannot succeed on their

merits. This court has therefore proceeded cautiously,

approving affirmative action plans where their purpose

and need has been appropriately established, their goals

have been reasonable in terms of the affected minority,

and their tendency to reinforce race consciousness has

been minimized.

A governmentally imposed affirmative action plan

can only be sustained if its purpose and effect are to

remedy the consequences of present or past discrimina-

tion. Fullilove v. Kreps, 584 F.2d 600 (2d Cir. 1978),

cert. granted, 441 U.S. 960 (1979). Justice Powell indi-

cated in Regents of the University of California v.

Bakke, supra, 438 U.S. at 301-02 & n. 41, that judicial,

legislative or administrative findings of the discrimina-

tion must support such purpose. In the Fullilove case

this court sustained under the Equal Protection Clause

section 1030b) 2) of the Public Works Employment Act

of 1977, 42 U.S.C. §6705(f)(2), which mandates that at

least ten percent of the monies appropriated pursuant to

the statute shall be expended for minority business

enterprises. The court held that Congress had the pur-

pose of remedying the effects of past discrimination and

had sufficient evidence” of past discrimination in the

construction industry. Earlier Bridgeport Guardians,

Inc. v. Bridgeport Civil Service Commission, 482 F.2d

1333 (2d Cir. 1973), sanctioned hiring quotas of Black

and Puerto Rican policemen aimed at eradicating past

discrimination where the District Court had found that

the patrolman’s examination had for many years result-

ed in individious discrimination.

In the present case the purpose of and need for the

Ordinance and Plan were established beyond question.

Previous efforts to mitigate or eliminate discrimination

in the local buildings trades had clearly met with failure.

Al10

In the Ordinance the Council, a competent and respons-

ible legislative body subject to political restraints,

United States v. Carolene Products Co., 304 U.S. 144,

152 n. 4 (1938), declared its purpose of ensuring equal

employment opportunity for minority and female

workers and made findings of past and present discrimi-

nation. Those findings were not attacked in the District

Court. Indeed, when the contractors and the unions

negotiated the voluntary plan and later assisted in draft-

ing the Ordinance they acknowledged that minority

workers were seriously under-represented in the building

trades. That under-representation was documented in

studies by the University of Connecticut, the Connecti-

cut Labor Department and the City’s Human Relations

Commission. Moreover, racial discrimination in the con-

struction trades on racial grounds has been found so

often by the courts as to make it a proper subject for

racial notice. United Steelworkers v. Weber, 443 U.S.

193, 198 n. 1 (1979).

Although only 7.45 percent of the Union’s members

are minority individuals and the percentage of blacks

employed as skilled electricians in Connecticut actually

decreased from 0.9% to 0.7% between 1960 and 1969,

the Union claims that there was no legislative finding

that it had discriminated in the past. The Union intro-

duced no proof that it was an exception to the general

finding. But in any event a valid affirmative action plan

need not be based on a particularized finding of past

discrimination by every employer or union affected. It is

enough that there is a finding of discrimination in the

industry concerned. To hold otherwise would enable

parts of the industry to frustrate the plan by assigning

various functions to those who had not previously dis-

criminated. Other circuits have upheld affirmative action

plans granting racial employment preferences where a

legislative or administrative body charged with the

responsibility made determination of past discrimination

in the industries affected but did not make specific find-

ings directed at those attacking the programs. Contrac-

tors Association of Eastern Pennsylvania v. Secretary of

All

Labor, 442 F.2d 159 (3d Cir.), cert. denied, 404 U.S. 854

(1971); Associated General Contractors of Massachusetts,

Inc. v. Altshuler, 490 F.2d 9 (1st Cir. 1973), cert. denied,

416 U.S. 957 (1974). These decisions were cited with

apparent approval by Justice Powell in the Bakke case,

438 U.S. at 301-02.

Moreover, whether or not the Union discriminated in

the past, to acquiesce in the Union’s position in this

case would be to permit perpetuation of discrimination.

The Union, which for thirty years had not maintained

an Out of Work List,“ now insists that referrals must

be made only from such a list in chronological order.

The list contains solely Union members. Yet it is evi-

dent that there are other unemployed qualified and

licensed electrical workers in the area, and the Council

found that there were sufficient qualified minority and

female workers to make feasible the fifteen percent goal

of the Plan in respect to employees on City projects.

Indeed, the union introduced no proof suggesting other-

wise.

While the collective bargaining agreements between

the Union and the contractors by implication gave non-

members the right to sign the Out of Work List,“

there is no showing that anyone not a Union member

knew of the existence of the list. Even if a non-Union

member had known of the list and had signed it, such a

worker in all likelihood would not have been qualified to

be included in Group I which had priority for referrals.

To be listed in Group I an applicant must have been

employed for at least one year of the last four under a

collective bargaining agreement to which the Union was

a party. For most if not all non-union workers, therefore,

it would probably have been futile to sign the list. They

would not have been referred for employment until all

Union members were employed.

By making provisions for job referral banks the

Ordinance contemplated that a union having a member-

ship of less than fifteen percent minority and female

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workers could comply with the Plan by referring

qualified non-Union workers. Project Leap, the job

referral bank designated by the Council, evidently had

the names of such workers, for when the Union failed to

refer minority electricians, the City advised one con-

tractor that it was required to use other sources and

should apply to Project Leap to assure! compliance

with the Plan. The fact that the Union list contains the

name of not a single non-Union person indicates that the

Union made no effort to recruit qualified non-union

minority and female workers, from the job referral

banks or otherwise, into its referral system. If the Union

is permitted to restrict minority and female employment

to its forty-one members, the rather modest goal of

employing fifteen percent minority employees on City

projects may be effectively frustrated.

The Union now suggests for the first time that the

fifteen percent goal may be too high because it is in

excess of the percentage of the minority population in

the Greater Hartford Area. However, in the District

Court the Union did not attack that goal as unreason-

able. Nor did the Union make the contention below that

the group from which construction workers might

reasonably be drawn was less than fifteen percent

minority and female or refute the legislative finding that

sufficient qualified minority and female workers were

available to make the hiring of fifteen percent minorities

on City contracts feasible and desirable. Furthermore,

the representatives of both the unions and the con-

tractors agreed in 1972 that a fifteen percent goal was

reasonable.*

Finally, we think that the implementation of the

Ordinance and Plan as shown in this record is calculated

Whether it is reasonable to require that fifteen percent minority

workers be hired on City projects is a question different from, al-

though perhaps related to, the question of whether seeking to have

fifteen percent minority membership in the Union is a reasonable

goal. This opinion need not and does not reach the latter issue.

Alg

to attain the fifteen percent objective while causing a

little resentment as possible. This case is not like those

relied on by the Union.

In the Bridgeport Guardians, Inc. case, supra, while

approving hiring quotas of Black and Puerto Rican pat-

rolmen, this court disapproved the use of quotas for

promotion to ranks above that of patrolmen. The court

found that there was no justification for promotion

quotas because the promotion examinations were not

found to be discriminatory and the quota would have a

“harsh’”’ impact on the few persons who had embarked

on a police career with the expectation of advancement

and would only exacerbate rather than diminish racial

attitudes. Jd. at 1341.

Similarly in Kirkland v. New York State Department

of Correctional Services, 520 F.2d 420 (2d Cir. 1975), the

court reversed the District Court’s order that the New

York State Department of Correctional Services promote

to sergeant at least one Black or Hispanic employee for

each three white employees promoted until the Blacks

and Hispanics made up the same combined percentage

of sergeants as they did of correction officers. The

Court’s opinion stated that the proof of past racial per-

sonnel was inadequate and that those bypassed for ad-

vancement would be ‘‘a small number of readily identifi-

ably [sic] candidates for promotion. Jd. at 429.

On the other hand, in the Fullilove case this court

sustained the set aside of ten percent of federal public

works money for minority businesses and deemed any

resentment likely to be caused by the act to the minimal

sinco the amount set aside was only .25 percent of the

funds expended yearly on construction work in the

United States, and the effects were not identifiable,

that is, concentrated upon a relatively small, ascertain-

able group of non-minority persons. 584 F. ad at 607.

Similar criteria were used by Mr. Justice Powell in

his opinion in the Bakke case finding invalid the

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program of a medical school reserving sixteen of one

hundred seats for disadvantaged minority students.

While he approved preferences to minorities where

competent and responsible public bodies made findings

of past discrimination, he referred to the “deep resent-

ment likely to be aroused by all classifications based

on race, 438 U.S. at 294-95 n. 34, and concluded that the

exclusion of nonminority applicants from any competi-

tion for the sixteen seats would be viewed as inherent-

ly unfair both by the general public and by those who

applied to admission to state universities. Jd. at 319 n.

53.

The Union, citing these cases, contends that the

Plan requires that minority Union members on the Out

of Work List“ be jumped over’’ the “readily identifi-

able nonminority members on the list. This contention

is based on the premise that this is the only way the

Union can make a good faith effort to attain the fifteen

percent goal.*

For reasons already discussed the premise is faulty.

The Union can seek out and refer other qualified work--

ers. Chronological referrals from a list including both

Union and non-Union members and containing at least

fifteen percent minority female persons might well have

met the City’s goal.

* The Union points to a statement by a representative of the

City’s Commission on Human Relations at the hearing before the

Contract Enforcement Committee that My position was that in

order to comply they would have to reexamine their rotation list and

perhaps the rotation list should not be used.... My position was that

the rotation list would have to be rethought and reexamined and,

yes, minorities would have to be moved up.” It is clear from the

context of this statement that the representative of the Commission

contemplated that the Union could go outside the Out of Work

List“ to move up“ minorities. In any event the decision of the Con-

tract Enforcement Committee decertifying the Union merely con-

cluded that use of the ‘out of work’ list was clear evidence of lack

of a good faith effort to comply.

Ald

Qualified minority and female workers who are not

Union members may well have been out of work longer

than any persons on the Union’s list, and perhaps no

Union member would be chronologically “jumped over

if referrals were made from a list including all those

qualified to work. The court does not have before it a

situation where referrals are made chronologically from

a list containing all those qualified but less than fifteen

percent minority or female persons. We need not rule on

the validity of a jumping of minority and female over

nonminority workers in such circumstances. Nor need

we decide whether a non-minority Union member may

enjoin the Union from referring out of turn a minority

Union member on the present Out of Work List.

Neither the decisions of this court nor the Supreme

Court sanction the Union's frustration of the Plan

through the expedient of restricting referrals to the

Union list, indeed, for practical purposes, to its own

membership, and then claiming that those few are

readily identifiable. In instances in which the decisions

disapproved racial quotas the list from which appoint-

ments could be made included all those legally qualified

for the position. That is not the case here.

Resentment there may be if the Union is required to

make inquiries of a job referral bank and to compile a

list including at least fifteen percent minority and

female workers. But the effect of such a requirement is

not comparable to the effect of the direction of quotas

for police promotion which this court disapproved in the

Kirkland and Bridgeport Guardians, Inc. opinions or to

the effect of the program rejected by Mr. Justice Powell

in the Bakke case. Any indignation here can hardly be

as intense or appear as plausible. There is no issue of

preferring someone over another presumably more quali-

fied, at least on paper. Nor has it been shown

ion must

*

For the foregoing reasons we hold that the Ordi-

nance and Plan as implemented do not infringe the

Equal Protection Clause. To accede to the Union’s con-

tentions would be to require the City to condone condi-

tions the Equal Protection Clause was designed to end.

VI

The Union contends that the Ordinance and Plan

are invalid because they are inconsistent with section

Tone) of Title VII of the Civil Rights Act of 1964, 42

U.S.C. §2000e-2(c), which provides in pertinent part that

it shall be “an unlawful employment practice” for a

labor organization to fail or refuse to refer for employ-

ment any individual, in any way which would deprive or

tend to deprive any individual of employment opportuni-

ties, or would limit such employment opportunities or

otherwise adversely affect his status...as an applicant for

employment, because of such individual’s race, color,

religion, sex, or national origin.

The argument is that the Plan and Ordinance violate

itself, was designed to break down old patterns of racial

segregation and hierarchy. Moreover, it was temporary,

did not unnecessarily trammel the interests of white

employees, did not require discharge of whites and their

replacement with new black hires, and did not create an

absolute bar to the advancement of whites since half of

those trained would be white.

The Ordinance and Plan before us have a less sig-

nificant impact on nonminority workers than did the

plan in the Weber case, and the Union has not sug-

gested that we give section 703(c) a construction differ-

ent than that given section 703(a).

The Union urges in addition that the Ordinance and

Plan violate Title VI of the Civil Rights Act of 1964, 42

U.S.C. §2000d, and the provision of 42 U.S.C. §§1981

and 1983. However, any claim under these sections pre-

supposes a violation of the Equal Protection Clause or

Title VII, and the Union has shown no such violation.

The Union also contends that the Ordinance and

Plan prevent the Union from providing the equal repre-

sentation to its members required by the National Labor

Relations Act, 29 U.S.C. §158(b). But there is no viola-

tion of equal representation where a union complies with

a valid affirmation action program.

VII

Finally the Union asserts that the Ordinance and

Plan violate Connecticut constitutional and statutory

law. The argument is based on the premise that any

affirmative action program is prohibited by (a) Article

First, section 20 of the Connecticut Constitution, provid-

ing for equal protection” and against discrimination

on the ground of religion, race, color, ancestry or nation-

al origin, and (b) Connecticut’s Fair Employment Prac-

tices” legislation, Chap. 563 Conn. Gen. Stat., ad-

mittedly intended to be coextensive with Title VII, 42

U.S.C. §2000e-2. 4

As the District Court observed, the Connecticut

courts have held that the equal protection clauses of the

Connecticut and United States constitutions have sub-

stantially the same meaning. Snyder v. Town of Newton,

417 Conn. 374, 381, 161 A.2d 770 (1960). The Union

cites no authority to the contrary.

Nor does the Union point to any Connecticut deci-

sion suggesting that the Connecticut Fair Employment

Practices act should be construed to have a meaning

different from Title VII on which it was modeled.

VIII

We have considered the Union’s other contentions

and find them without merit.

The judgment is affirmed.

VAN GRAAFIELAND, Circuit Judge (dissenting):

In January 1977, the Mafco Electric Co. of West

Hartford, Connecticut, laid off two of its employees. It

discharged them, not because they were incompetent or

derelict in their duties, but because they were white

males. Had they been Spanish-Americans just immi-

grated from Cuba, Blacks recently arrived from Ala-

bama, or white heiresses working for kicks, they would

have continued to draw their paychecks. However, they

were white males and so they lost their jobs. They were

discharged in order that Mafco could comply with an

“anti-discrimination” ordinance enacted by the City of

Hartford.

Although official 1980 census figures have not yet

been established, it is estimated that approximately 50

percent of Hartford’s population are non-white and that

Al9

at least 50 percent are women. This means that approxi-

mately 25 percent are white males. The Hartford City

Fathers have decided nonetheless that, insofar as the

City is concerned, the non-whites and women are the

minority group and the white males are the majority

group.] They enacted an ordinance to ensure equal

employment opportunity on city projects for the 75

percent of Hartford’s citizens making up the minority

group and to establish ‘‘reasonable minimum percentage

goals in the construction industry for that group. Al-

though 15 percent was set as the basic minimum level

for minority employment, the actual percentage goals

are to be determined by the City Manager, using, among

other criteria, the size of the qualified minority labor

force in the Hartford Labor Market Area. Moreover, the

adequacy of the goals so established is to be reviewed

annually. As this Court proceeds to put its stamp of

approval upon this program, it is appropriate, I think,

that we pause briefly to take a look at where we are and

where we are going.

We conclude, as we must, that affirmative action

programs of this sort can no longer be justified as de-

ferred recompense for past injustices. There can have

been no injustices against racial minority members who

appeared on the scene no earlier than yesterday or

against women whose interest in construction work is

not of vintage character. Now, our support assertedly is

based upon the desirability of bringing about what the

majority describe as the moral equality of the races.

It is not too early - perhaps it is too late - to consider

what is meant by moral equality of the races and to

ask ourselves where the United States women fit into

this moral equality picture. A look at history may fur-

nish a helpful perspective.

1 Article X. 62.323 of the Hartford Code includes within the defini

tion of “minority group persons” Blacks, Puerto Ricans, Spanish-

Americans, Orientals, American Indians, and women.

A20

In 1920, Hungary enacted a law known as Law

XXV 1920, which provided among other things that the

student bodies in the university should be proportioned

by race so that the percentages corresponded with the

racial percentages in the country as a whole.2 In effect,

this law gave Magyar students priority over Jews in

admission to universities.? In 1941, Bulgaria enacted a

Law for the Defense of the Nation (Zakon za zashtitata

na natsiiata, ZZN) which limited the number of Jews in

both schools and the outside economic world.“ Article 25

of the Statute, which limited the number of Jews in

various occupations, empowered the Cabinet to decide

on the distribution of occupations in the country’s pro-

fessions and trades.5 In 1887, a law was enacted in

Russia limiting the number of Jews in various middle

and higher schools to between two and fifteen percent.®

In pre-Nazi Germany, Jews were permitted to attend

universities and practice certain professions only in pro-

portion to their numbers in the population.”

These European laws are well-recognized examples

of numerus clausus legislation. Translated freely as

“limited numbers, numerus clausus describes a

situation once prevalent in several European countries

in which Jewish participation in schools and occupations

was limited by numbers of percentages or by relating

Jewish participation to that of other races. It now

2 Vol. 8, The Universal Jewish Encyclopedia, 251, 252 (1942).

3 p. Grosser & E. Halperin, The Causes and Effects of AntiSemitism

249 (1978).

4 p. Chary, The Bulgarian Jews and the Final Solution, 1940-44 37-

41 (1978).

5 Id. at 42.

8 Vol. 8, The Universal Jewish Encyclopedia, supra, at 261.

7 Id.

appears that in cities such as Hartford the white male is

about to inherit the role of the European Jew. As a

number of Bulgarian Jews self-employed in commerce,

credit, and insurance dropped from 4,465 in 1926 to 761

in 1942,8 so will the number of white males employed in

the Hartford construction industry drop if the numerus

clausus of Hartford’s affirmative action program con-

tinues in effect.

Moreover, with the adoption of affirmative action

plans such as that of the City of Hartford, the day is

not far off when numerus clausus will be applied not

simply to white males but to all races, and to sexes as

well. Combining Blacks, Puerto Ricans, Spanish-Ameri-

cans, Orientals, American Indians, and women into one

minority group” gives substantial statistical support to

those who favor affirmative action for minorities. No

prescience is needed, however, to predict that the homo-

geneity of this minority group will not long endure.

Blacks will not sit idly by should all affirmative action

jobs be given to white women. Spanish-Americans will

not remain passive if a disproportionate number of jobs

is given to Blacks. They will each demand recognition

for their own race as a separate minority group, and the

inevitable result will be a numerus clausus for all

groups. An employer will need a computer to un-

scramble the conflicting quota demands of race and sex

groupings and a lawyer at his right hand to defend him

against error.9

Men of good will look back with distaste upon the

battle over immigration quotas that raged in Congress

during the early 1920’s. Those quotas, like affirmative

action quotas, were concerned with racial balance. Immi-

8 p. Chary, The Bulgarian Jews and the Final Solution, 1940-44,

supra, at 42n.14.

9 See, e.g., 29 C.F.R. §30.4(f); Jefferies v. Harris County Community

Action Assn., 48 U.S.L.W. 2732 (5th Cir. April 21, 1980).

A22

gration quotas were established to preserve racial bal-

ance in the country as a whole;!° affirmative action

quotas are intended to create it in specific areas or occu-

pations. The first immigration quota law, enacted in

1921, limited the number of any immigrating nationality

to 3 percent of foreign-born persons of that nationality

who lived in the United States in 1910.11 Prior to the

expiration of this law in 1924, Congress set about enact-

ing successor legislation, and a dispute arose as to

whether the 1890 census rather than the census of

either 1910 or 1920 should be used as a basis for the

new 2 percent quota. The Congressmen who wanted to

restrict immigration from southern and eastern Europe

favored the 1890 census because most immigrants from

those areas arrived at a later date. Those who favored

immigration from southern and eastern Europe argued

for the 1910 or 1920 census.!2 The debate in Congress

was acrimonious. Moreover, regardless of the facial argu-

ments used, the fundamental issue was whether the

quota of one nationality or another should be favored. 10

It was a dark chapter in our country’s history but a

chapter that will surely be rewritten if the use of

numerus clausus or racial quotas in affirmative action

programs is not restricted.

Following the enactment of ZZN, Bulgarian Jews

received an occupational allotment of 21 doctors, 20 law-

yers and 7 dentists.!“ When the day comes that similar

allotments are made in this country, those who dream of

10 See Committee on the Judiciary, The Immigration and Naturaliza-

tion Systems of the United States, S. Rep. No. 1515, 81st Cong.,

lst Sess. 430, 443 (19650).

11 7g at 56.

12 Id. at 60.

13 7d at 60-65.

14 The Bulgarian Jews and the Final Solution. 1940-44, supra, at 42.

A23

an integrated society, free of racial controversy and ani-

mosity, will long since have had their dreams shattered.

My brothers appear to take comfort in the fact that the

present Hartford quota is only 15 percent. Apparently

they believe that the minority which holds political

power in Hartford will be content with that figure. How-

ever, that minority cannot help but know that, if a 15

percent quota is legal, so also is a 30 percent, a 50 per-

cent, or a 75 percent quota. See United Steelworkers v.

Weber, 443 U.S. 193, 208-09 (1979). Conceptually, there

is no distinction in the figures. The only giant step has

now been taken and judicially approved. From 15

percent to 75 percent is simply the continuance of a

process already under way, and there is no logical stop-

ping place in between.

The arguments against numerus clausus are not

answered by saying that the framers of racial quota

legislation are well-intentioned. The Inquisition itself

was not evilly motivated. If a religious, moral, or politi-

cal purpose may exculpate illegal behavior, one might

commit bigamy to avoid eternal damnation; steal from

the rich to give alms to the poor; burn and destroy, not

merely public records or perhaps buildings but even

public servants as well, to implement a Utopian design.”

United States v. Cullen, 454 F.2d 386, 392 (7th Cir.

1971) (footnote omitted). It is by well-intentioned

processes such as this, rather than by revolution, that

individual rights and freedoms in a democracy are most

likely to be lost.

The adverse effects of the discharge of the Mafco

employees were not limited to the two men and their

families. When Mafco laid off the two white male

employees, it called upon appellant to replace them with

two Blacks. However, the 1965 contract between appel-

lant and Mafco, a copy of which was in the possession

of the City since October of that year, provided that

employees would be referred in the order in which they

registered on an Out of Work List. Although prior to

the demand by Mafco the Union had jumped minorities

A24

over whites in order to meet the demands of the Hart-

ford Affirmative Action Plan, the Union discontinued

this discriminatory practice upon the advice of its

attorney. It was and is the belief of appellant’s counsel

that compliance with Mafco’s demand would violate 42

U.S.C. §2000e-2, which makes it unlawful for a labor

organization to fail or refuse to refer any individual for

employment because of that individual’s race, color, reli-

gion, sex, or national origin. The Common Council of the

City of Hartford has in effect nullified this federal statu-

tory enactment by legislatively declaring that the group

constituting 75 percent of Hartford’s population is a

minority and that there has been discrimination against

that minority in the construction industry.

The majority opinion implies that if appellant’s

membership included 15 percent of the “minority

group” instead of 7 percent, the first minority worker

would be transposed magically from 85th place to Ist

place on the Out of Work List and the second minority

worker would be alchemized from 94th place to 2nd

place. Thus, no bumping' or leapfrogging would be

required in order to meet Mafco’s demand for two

Blacks. This suggestion is without mathematical

support. Even if minorities made up 15 percent of the

Out of Work List, the chances would always be about 7

to 1 against one of them being at the top and, if the

statistical estimates of the writer’s clerk are correct,

about 49 to 1 against them being listed first and second.

Moreover, the record discloses that the electrician whose

name was on the bottom of the Out of Work List had to

wait one and one-half years before he reached the top.

This means that those whose names were at or near the

top when Mafco asked for Black replacements were

already out of work when the Union certified itself into

the Hartford Plan in October 1975. There was no way in

which the Union could have furnished Mafco with Black

employees without leap-frogging them over white

employees who had been waiting 18 months for work.

The district court disposed of this problem very simply

by holding that leapfrogging would not be “unduly bur-

A25

densome” on the whites who were bypassed because

they would only be delayed in finding employment, not

permanently denied it. The majority wisely avoids

comment on this holding.

It would have been better perhaps if the majority

had also resorted to less conjecture and surmise in their

attempt to mitigate the discriminatory effect of the

bumping and leapfrogging, about which this Court long

ago, expressed its concern. See United States v. Bethle-

hem Steel Corp., 446 F.2d 652, 659 (2d Cir. 1971).

Statements that a union worker would in all likelihood”’

not have qualified for Group I, that a job referral bank

“evidently”’ had the names of non-union members, that

by addition of non-union workers’ names chronological

referrals ‘‘might well have met the City’s goals, and

that qualified non-union workers may well have been

out of work”’ longer than union workers, none of which

statements is supported by proof, do not seem quite

appropriate in an action in which summary judgment

was granted.

When Robert Murray, appellant’s Business Manager

testified before the Contract Enforcement Committee,

the following colloquy took place:

Q: And have you notified all non-Union mem-

bers of the existence of this list?

A: Oh, they know there is a list. I think the

thing is everybody has gone out looking for a

job everywhere they can get one.

Q: And what steps have you taken to advise

non-union members of the existence of this list?

A: Oh, non-union members know that the list

exists. They have come to this Union over the

years. The fact is, people in the Union and

those that are not members are practically giv-

ing up. We have people working for the City of

A26

Hartford, people traveling throughout the

country. Anybody on the bottom of this list

today, he is good for a year and a half.

If the Hartford Affirmative Action Plan is applied

to appellant, Mr. Murray will have to amend the last

quoted sentence by adding unless that person is Black,

Puerto Rican, Spanish-American, Oriental, American In-

dian, or a woman.”’

The Hartford plan is a far step removed from the

early affirmative action plans in which we approved the

gingerly use of quotas for the purpose of remedying

the prejudicial effects of past discrimination against a

true racial minority. With the addition of women to the

so-called minority group.“ quota allocations as between

the majority“ and the minority“ will leave white

males eventually with about a 25 percent allocation.

This must be what my colleagues mean by “moral

equality of the races.“

Justice Mosk, writing for the dissent in Price v.

Civil Service Commission, Cal. 3d , 604

P.2d 1365, 161 Cal. Rptr. 475 (1980), has ably sum-

marized why the path along which we are now traveling

is leading us in the wrong direction. Although the writer

of this dissent could repeat what Justice Mosk has said,

he could not improve upon it, and therefore is content to

simply express his adherence to Justice Mosk’s views.

For the good of our country, I hope that Justice Mosk

and the writer are wrong. I believe, however, that

history will prove us to be right.

A27

*

—_

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

Filed December 11, 1978

LOCAL UNION NO. 35 OF :

THE INTERNATIONAL

BROTHERHOOD OF :

ELECTRICAL WORKERS :

3 CIVIL NO. H-77-167

CITY OF HARTFORD,

ET AL.

RULING ON PENDING MOTIONS

This action represents a challenge to the implemen-

tation of the defendant City of Hartford's Affirmative

Action Plan, which seeks to achieve 15 percent minority

group employment on construction projects awarded by

the City. Plaintiff Local Union No. 35, International

Brotherhood of Electrical Workers (hereinafter the

Union or Local 35) seeks declaratory and injunctive

relief invalidating the Affirmative Action Plan (herein-

after the Plan) to the extent that it requires the Union

to give preference to minority workers when referring

workers for employment. The Union contends that the

Plan mandates discriminatory treatment of nonminority

employees on the basis of race, in violation of state and

federal statutory and constitutional standards.

The plaintiff Local 35 represents all electrical

workers who work for an employer with whom Local 35

has a contractual relationship in various counties,

including Hartford County, in Connecticut. The defen-

dants are the City of Hartford (hereinafter the City) and

several City agencies and officials having responsibility

A28

for enforcement of Hartford’s Affirmative Action Plan.

This case is now before the court on cross-motions for

summary judgment.

I. Background

A. The Affirmative Action Plan

On February 9, 1975, the Court of Common Council,

the City of Hartford’s chief legislative body, adopted

the Hartford Affirmative Action Plan Ordinance (herein-

after Ordinance), Revised Code of Hartford §§2-321 to 2-

333. The stated purpose of the Ordinance is to insure:

“equal employment opportunity for minority

group persons and women in all phases of con-

struction work, including the bidding process,

performed pursuant to major contracts offered

and awarded by the city under the provisions of

the Charter and this Code.

Ordinance §2-321. The Court of Common Council declar-

ed in the Ordinance that legislative action was required

due to a pattern of past and continuing discrimination

among contractors and labor unions in the construction

industry in the Hartford area. The Court of Common

Council declared and found, inter alia, that:

da) Many contractors, labor unions, hiring

halls, crafts and trades in the construction

industry in the Greater Hartford Area

have discriminated, and continue to dis-

criminate, against minority group persons

and women.

“(b) It is the intention of the city not to aid or

abet such discrimination by awarding con-

contracts to contractors who practice or

have practiced discrimination against mi-

nority group persons and women, or who

have subcontracted to, or engaged the ser-

A29

vices of, individuals, and organizations

that deny or have denied equal employ-

ment opportunity to minority group per-

persons and women.

de) The continuing effects of past and present

discrimination against minority group per-

persons and women by the construction

industry may be prevented, mitigated

and/or eliminated by an affirmative action

plan. |

Ordinance §2-322.

The Affirmative Action Plan, adopted in accordance

with section 2-325 of the Ordinance, is included as a

contractual provision in all major City construction con-

tracts. Since the City of Hartford enters into contracts

for public works and improvements with contractors and

not labor organizations or vendors, the Affirmative

Action Plan is designed to encourage minority hiring on

City contracts by placing primary responsibility on the

contractors. All City contractors submitting bids on

City contractors are required to provide an affidavit exe-

cuted “‘by all subcontractors and officials of all organiza-

tions with which they have referral arrangements or

agreements covering workers to be employed on the

project involved, which affidavits shall incorporate such

subcontractors and organizations into the affirmative

action plan. Ordinance §2-327.

The Plan requires signatory contractors to make a

good faith effort to achieve a level of minority group

employment on City jobs of at least 15 percent on a

trade-by-trade basis.! Plan §5(a). The Plan also calls

1 In terms of implementation and enforcement, should the City Man-

meet

upon the craft unions to make good faith efforts to in-

crease minority membership in the unions to 15 percent

and to assist in achieving the 15 percent minority

employment goal. Plan 5510, (d). Good faith effort is

defined in the Ordinance (52-323) as every reasonable

attempt to comply with the provisions of this article

and the Hartford Affirmative Action Plan and every

possible measure to achieve the level and participation

of minority group and female workers and trainees

established by the plan.... The Plan establishes a five-

year time limit within which to achieve these percentage

goals. Plan §5(A).

B. Local 35’s Noncompliance with the Hartford Affirma-

tive Action Plan.

On October 31, 1975, plaintiff Local 35 was certified

under the City’s affirmative action program to partici-

pate on City construction contracts.2 The Union sub-

mitted to the City an affidavit dated October 8, 1975,

stating that it would not discriminate in regard to

minority group workers and that it would make a good

faith effort to comply with all provisions of the Hartford

Affirmative Action Plan. Pursuant to its certification,

Local 35 referred workers to City-contracted construc-

tion jobs.

Under a collective bargaining agreement between

Local 35 and the Central Connecticut Chapter, Hartford

2 There are two methods by which a labor organization can become

eligible to participate on City construction projects. The labor or-

ganization may either sign the Hartford Affirmative Action Plan,

Ordinance §2-327, or be certified in accordance with section 2-328 of

Division, National Electrical Contractors Association,

Inc., Local 35 is the sole and exclusive source of referral

of electrical workers for employment with firms which

have assented to be bound by the collective bargaining

agreement. The Union’s referral procedure is open to

both members and nonmembers of the Union. The refer-

ral procedure functions in the following manner: the

Union maintains an Out of Work List, which lists out-

of-work applicants in the chronological order of the

dates they register their availability for employment.

(Said list is also known as the “rotation list.’’) The

Union refers applicants for employment in the order in

which the applicants appear on the Out of Work List.

The events directly leading up to this lawsuit began

in January 1977, when the City of Hartford received

correspondence from two different electrical contracting

companies stating that the companies were unable to

meet the 15 percent affirmative action hiring goal for

electrical workers of minority descent. An investigation

conducted by a representative of the City’s Commission

on Human Rights determined that the problem arose

because Local 35 was referring electricians strictly on

the basis of its rotation list. It was found at the time of

the Commission investigation that the referral list being

used by Local 35 had the names of 321 persons, 17 of

whom were minority group members, and that the first

minority worker listed held position number 85.3 The

3 The following statistics indicate the status of minority and non-

minority workers in the Union on February 8, 1977:

IBEW No. 35 total membership - 550

Working - 229

Not Working - $21

Total Minority - 41

Working - 24

Not Working - 17

On the rotation list, which contained 321 names, minority workers

the following positions: 85, 94, 121, 145, 157, 166, 167,

184, 188, 204, 212, 224, 236, 238, 287, 299, 308.

A32

**%

Commission representative concluded that strict

adherence to the referral list would prevent referral of a

sufficient number of minority electrical workers to city

jobs and that Local 35’s action directly conflicted with

the minority manning provisions of the Hartford

affirmative action program. |

The City Manager, based on the Commission

report, determined that Local 35 was not in compliance

with the affidavit it had submitted to secure certifica-

tion and the matter was referred to the City’s Contract

Enforcement Committee. Hearings were held before that

body on April 21 and May 28, 1977. On July 7, 1977,

the Contract Enforcement Committee issued its decision.

The Committee held that strict use of the current

referral list with its present makeup “will make compli-

‘ ance with the union’s ‘Affidavit for Certification’

impossible,” and that Local 35’s “use of the ‘out of

work’ list is clear evidence of lack of good faith effort to

comply on the union’s part. In re Local Union 35, City

of Hartford Contract Enforcement Committee, at 4 (July

7, 1977). The Committee concluded that Local 35’s non-

compliance with its Affidavit of Certification could not

be excused.

The Union was put on notice that its continued fail-

ure to comply with the commitments in its affidavit and

to show a good faith effort to comply would lead to a

decertification of the Union. If decertified, the Union

can be barred from further participation on construction

projects awarded by the City. Ordinance 52-328. Final

action pursuant to the Committee’s ruling was held in

abeyance pending a * by this court in the instant

action.

C. The Union’s Legal Claims

The Union explicitly does not challenge the legality

of the Hartford Affirmative Action Plan itself; the chal-

lenge is limited only to the manner in which the Plan is

being implemented against the Union. See Hearing on

A33

Motion for Preliminary Injunction, August 3, 1977, at 6-

8; Plaintiff’s Reply Brief to Defendants’ Supplemental

Memorandum at 4-5.4 The Union asserts that the imple-

mentation of the Plan is unlawful on two grounds. First,

the Union argues that the Plan as implemented violates

the statutory and constitutional rights of the non-

minority individuals who are a part of the Union’s refer-

ral system. Specifically, the Union contends that the

Plan’s discriminatory impact on the nonminority

members of the Union’s referral system violates the

rights granted those individuals by the Equal Protection

Clause of the fourteenth amendment to the United

States Constitution, article 1 of the Connecticut Consti-

tution, 42 U.S.C. §1981, and 42 U.S.C. §1983.5

Secondly, the Union argues that the Plan as imple-

mented conflicts with constitutional, statutory, and con-

tractual obligations to which the Union claims it must

adhere in administering its referral system. The Union

claims that in order to comply with the requirements of

the Plan, as enforced by the City’s Contract Enforce-

ment Committee, the Union would have to jump minori-

ties ahead of nonminorities with respect to referrals

from its rotation list and that to do so would violate

state and federal laws prohibiting racial discrimation to

4 For example, counsel for the plaintiff summed up the present

posture of the case by stating, inter alia, that: no general attack is

being made upon the City’s Affirmative Action Plan, and the only

challenge being made is as to a specific implementation of that

plan. Plaintiff's Reply Brief to Defendants’ Supplemental Memo-

randum at 4.

5 The plaintiff Union claims that the City, through the operation of

its Plan, directly and indirectly discriminates against nonminority

group persons. First, the Union argues that the City Contract En-

forcement Committee’s decision to decertify the Union unless it

gives preferences to minority members on the rotation list directly

discriminates against nonminority members on that list. Secondly,

the Union argues that the City indirectly discriminates against non-

minority members by exerting pressure on contractors to meet the

Plan’s 15 percent minority hiring goal, which in turn causes those

contractors to seek referrals only of minority persons.

A34

which the Union is subject.6 Though not denominated as

such, this in effect is a claim that the Plan’s enforce-

ment violates due process in that it requires conduct

inconsistent with other laws. In addition, the Union

claims that the Plan unlawfully interferes with the

Union’s contractual rights in its collective bargaining

agreement.

At a hearing before the court on August 3, 1977, all

parties were of the opinion that no material issues of

fact remained in dispute. Decision on the parties’ cross-

motions for summary judgment was postponed awaiting

the United States Supreme Court’s decision in Regents

of the University of California v. Bakke, 46 U.S.L.W.

4896 (U.S. June 28, 1978). Both sides having briefed the

effect of that opinion on the present case, the cross-

motions for summary judgment are now ripe for deci-

sion, in accordance with Rule 56(c) of the Federal Rules

of Decision Isicl.7

Having reviewed the record before this court, I find

no genuine issues of fact in dispute; the controversy can

be decided on the law. Since the Union does not here

challenge the City’s right to adopt the Plan,® the legal

6 In its Complaint, the Union claims that the following statutes pro-

hibit it from giving job referral preference to minority group per-

sons: 42 U.S.C. §2000e-2(c)(2) (“It shall be an unlawful employment

practice for a labor organization... [to] refuse to refer for employ-

ment any individual. because of such individual's race, color, reli-

sex, or national origin.”’); 29 U.S.C. §158(b) (duty of fair repre-

tion); Conn. Gen. Stat. §31-126(c) (state unfair labor practice

to

sary in light of the present decision.

8 After disclaiming any challenge to the right of the City

authority of the City to adopt its Plan. See Plaintiff's Supplemental

A35

X

question presented to this court is a narrow one:

whether, consistent with federal and state law, the Plan

can be enforced so as to require the Union to give a pre-

ference to minority persons over nonminority persons

when referring applicants for employment from the Out

of Work List.

II. Discussion

In Bakke, supra, the United States Supreme Court

gave its approval to affirmative action programs giving

preferences to minority group victims of past discrimi-

nation

“where a legislative or administrative body

charged with the responsibility made determina-

tions of past discrimination by the industries af-

fected, and fashioned remedies deemed appro-

priate to rectify the discrimination. E. G., Con-

tractors Association of Eastern Pennsylvania v.

Secretary of Labor, 442 F.2d 159 (CA3), cert.

denied, 404 U.S. 954 (1971); Associated General

Contractors of Massachusetts, Inc. v. Altschul-

er, 490 F. 2d 9 (Cal 1973), cert. denied, 416 U.S.

957 (1974).“

Bakke, supra, 46 U.S.L.W. at 4905 (opinion of Powell, J.)

(footnote omitted). As the Court stated, After such

findings have been made, the governmental interest in

preferring members of the injured groups at the expense

of others is sufficient to justify an affirmative action

8 (continued)

Brief Re Bakke at 8-11. In short, the Union now argues that since

the operation of the Plan conflicts with Connecticut constitutional

:

i

|

E

:

|

plan vindicating the rights of the victims. Id. at 4906.

The City of Hartford’s Affirmative Action Plan was

adopted after the City’s legislative body, the Court of

Common Council, made explicit findings, based on legis-

lative review and public hearings, that many contrac-

tors, labor unions and hiring halls in the building in-

dustry in Greater Hartford have discriminated, and

continue to discriminate, against minority group persons

and women.” Ordinance §2-322, quoted in full supra.®

As a threshold matter, plaintiff Local 35 argues that

since. the City’s legislative findings concerned dis-

crimination by contractors and unions in the construc-

tion industry in general, rather than specific findings as

to discrimination in the electrical trade in particular, the

City is not justified in applying its Plan to the plaintiff

electricians’ union. That argument must fall in light of

the fact that Justice Powell in Bakke, in the passage

quoted supra, cited with approval Contractors Associa-

tion of Eastern Pennsylvania v. Secretary of Labor,

supra, and Associated General Contractors of Massa-

chusetts, Inc. v. Altschuler, supra. Both of those cases

upheld across-the-board affirmative action programs

setting racial quotas for the building trades in specific

geographical areas, where the programs were premised

upon generalized findings of past discrimination rather

than upon specific findings as to each and every union

and contractor affected by the program. 10 Thus Bakke

9 The plaintiff does not challenge this finding. See Plaintiff 's Reply

Brief to Defendants’ Supplemental Memorandum at 4-5.

F.2d at 163, 173, the Department required that bidders in

Philadelphia region submit affirmative action plans with specific

goals for utilizing minority workers. The Third Circuit upheld the

A37

7s

makes clear that a legislative finding of industry-wide

discrimination in the construction crafts and trades in

the Greater Hartford area gives rise to a governmental

interest in vindicating the rights of the injured group

which is sufficiently compelling to justify the adoption

of an affirmative action program affecting all building

erer and unions working on City contracts in the

area.

Given that the Affirmative Action Plan can validly

be applied to the plaintiff electrician’s union, this court

must decide the legal boundaries within which the

requirement that the Union use good faith efforts to

comply with the 15 percent minority hiring goal on City

projects can be enforced against the Union. The Union

claims that any enforcement of the Plan which requires

that a preference be given to minority workers on its

referral list, solely on the basis of race, violates statu-

tory and constitutional prohibitions of racial discrimina-

tion against nonminorities. This court is therefore called

upon to resolve the legal ‘‘tension between the needs of

effective enforcement [of an affirmative action plan] and

the avoidance of reverse discrimination. EEOC v. Local

638...Local 28, Sheet Metal Workers, 532 F.2d 821, 827

(2d Cir. 1976).

10 (continued)

In Altschuler, the First Circuit upheld an affirmative action plan

promulgated by the Commonwealth of Massachusetts for state sup-

A. Constitutional Limits on Reverse Discrimination.

First, it is clear that the enforcement of the Plan is

not invalid simply because it requires the Union to give

preferences to minority workers on the Out of Work

List solely on the basis of race. The Second Circuit

Court of Appeals in the clearest language recently re-

affirmed that

“fin employment discrimination cases it is well

established that the government’s interest in

overcoming the disadvantages resulting from

past discrimination in employment on account

of race is sufficiently compelling to justify a

remedy which requires the use of racial prefer-

ences. 12

Fyllilove v. Kreps, No. 78-6011, slip op. at 4832 (2d Cir.

Sept. 22, 1978) (footnote omitted). In Fullilove, the

Second Circuit upheld a federal statute requiring that 10

percent of all federal funds appropriated for specified

public works projects be expended for minority business

enterprises. The legislatively mandated preference for

minority businesses was premised on legislative findings

of past discrimination in the construction industry

nationwide.

The court in Fullilove noted, however, that lin

affirmative action programs to remedy the effects of

past discrimination the effect of preferring members of

12 The court went on to state:

“The vitality of the rationale in those cases ]

disturbed by the recent decision of the Court gents of

Fullilove, supra at 4832-33.

the injured groups at the expense of others must be

considered. Jd. at 4833. The court continued:

“It is established that in fashioning remedies

for past discrimination courts must be sensitive

to interests which may be adversely affected by

the remedy. The courts, here, as in a number of

other areas where legislation for which there is

a compelling interest collides with constitutional

principles, have adopted an ad hoc balancing

test which examines each particular case.... One

of the significant limitations on a remedy of

‘reverse discrimination’ for past discrimination

is that its effects shall not be identifiable,

that is to say, concentrated upon a small ascer-

tainable group of nonminority persons.’ EEOC

v. Local 638...Local 28, Sheet Metal Workers,

532 F.2d 821, 828 (2d Cir. 1976). See also Kirk-

land v. New York State Department of Correc-

tional Services, 520 F.2d 420, 427 (2d Cir. 1975),

cert. denied, 429 U.S. 823 (1976).“

Fullilove, supra at 4833-34.

The above-quoted test - that the effects of an affir-

mative action plan must not be concentrated upon a

small ascertainable group of nonminority persons - is a

judicially-fashioned limitation on affirmative action

remedies in the Second Circuit. This test originated as a

limitation on court-imposed remedies under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§2000e et

seq.,13 and was applied by Fullilove as a limitation on

legislative affirmative action pians adopted after

findings by the legislature of past discrimination. Since

the instant case is analogous to Fullilove in that the

13 See EEOC v. Local 698...Local 28, supra, 582 F. ad at

BPs

Kirkland v. New York State Department of

vices, 520 F.2d 420, 427 (2d Cir. 1975), cert. denied, 429

823 (1976).

A40

74

The Union argues that by requiring the giving of a

to minority workers on the Out of Work List,

preference

the City’s Plan discriminates against an identifiable

8

missible limits established in this jurisdiction.

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1. The Non-Identifiability Limitation

The non-identifiability limitation on affirmative

action . programs originated in Kirkland v. New York

State Department of Correctional Services, supru. At

issue in Kirkland was the legality of a court-imposed

quota requiring that at least one out of every four

promotions to the position of correction sergeant in the

New York State Department of Correctional Services be

Black or Hispanic. Prior to Kirkland, the Second Circuit

Court of Appeals had upheld the imposition of hiring

quotas to remedy the effects of past discrimination. See

Bridgeport Guardians, Inc. v. Bridgeport Civil Service

Commission, 482 F.2d 1333 (2d Cir. 1973), cert. denied,

421 U.S. 991 (1975); cf. Rios v. Enterprise Association

Steamfitters Local 638, 501 F.2d 622 (2d Cir. 1974) (up-

holding a minority n goal imposed upon a

union).

Kirkland, however, distinguished a hiring quota

from a promotion quota and held that the promotion

quota involved there constituted constitutionally

impermissible reverse discrimination. 520 F.2d at 429.

The court reasoned as follows, at 429:

“A hiring quota deals with the public at

large, none of whose members can be identified

individually in advance. A quota placed upon a

small number of readily identifiable candidates

for promotion is an entirely different matter.

Both these men and the court know in advance

that regardless of their qualifications and stand-

ing in a competitive examination, some of them

may be by-passed for advancement solely be-

cause they are white.”

The Kirkland court then proceeded to quote the follow-

ing passage from Bridgeport Guardians, supra:

the imposition of [promotion] quotas will

obviously discriminate against those Whites

A42

i

:

2

i

f

7

diminish racial attitudes.

520 F.2d at 429, quoting Bridgeport Guardians, supra,

482 F.2d at 1341. )

In EEOC v. Local 638..Local 28, supra, the Second

Circuit formulated the reasoning of Kirkland into a full-

fledged test for the imposition of temporary racial

quotas: N

The imposition of racial goals is to be toler-

ated only when...the effects of ‘reverse discrimi-

nation’ will be diffused among an unidentifiable

group of unknown, potential applicants rather

than upon an ascertainable group of easily

identifiable persons.“

532 F.2d at 828. At issue in EEOC was the lawfulness

the defendant union and its apprenticeship training

program. Applying the ‘“non-identifiability” test, the

Court of Appeals struck down the district court’s order

fied under the ‘non-identifiability’ test adopted by

court in Nirkland. 5632 F. ad at 830.

A43

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To recap the pertinent facts, the City’s Affirmative

Action Plan requires contractors and unions to make

good faith efforts to achieve 15 percent minority

employment on City construction contracts. The plain-

tiff, an electricians’ union, maintains a hiring hall with

several contractors on City projects. The Union keeps

an Out of Work List, listing all unemployed electrical

workers in the order of the date they register their avail-

ability for employment, from which employment refer-

rals are made to coniractors. At the time in controversy

here, the list was composed of 321 workers, 17 of whom

were minority group members. The first minority

member on the list was number 85. When the Union

refused to skip over nonminority workers on its Out of

Work List in order to refer minority workers more

quickly to the contractors, the Union was judged by the

City not to be in compliance with the Plan’s “good faith

efforts” obligation and thus subject to disqualification

from City contracts. In effect, the City’s Plan imposes

a racial goal on the Union’s referrals from its Out of

Work List. The Union contends that since the “victims”

of this affirmative action remedy - the nonminority

workers passed over on the list - are a small, readily

identifiable group, this remedy violates the Second

Circuit’s non-identifiability test.

2. Applying the Non-Identifiability Limitation.

A step-by-step analysis reveals that if the Union’s

argument were accepted, the case law in this circuit up-

holding racial hiring quotas would be completely under-

mined. First, it is established law that the City’s Plan

can validly require the Hartford area contractors (who

are not parties to this action) to give hiring preferences

to minority applicants. See discussion supru 16 In the

16 Legislative findings of past discrimination can justify the imposi-

absence of a union referral system here, the contractors

would hire directly from the electrical workers in the

public at large. The Union, however, has _ interposed

itself between the contractor and the public pool and

acts as a screening agent. That is, the Union is a “mid-

dleman between the hiring contractors and the avail-

able work force.

The underlying relationship has never changed,

however. The contractor is still hiring from the general

public, though now the hiring process is channeled

through two stages: first the job applicants go to the

Union; next, the Union refers those who come to it to

the employers who are seeking to employ qualified

workers. The City’s Affirmative Action Plan, by requir-

ing that preferences be given to minority persons on the

Out of Work List, imposes a racial requirement at the

referral stage of the hiring process. Since it is

established law that a racial goal imposed at the hiring

level does not impermissibly discriminate against non-

minority applicants for employment, such a requirement

should be able to be imposed at any stage of the hiring

process. Otherwise, the policy underlying a hiring-level

goal could be thwarted simply by contractors agreeing

to hire employees through a union.

Whatever procedure the Union uses to select and

refer members of the public for employment must still

be subject to the same affirmative action obligations

that a contractor hiring directly from the public would

be required to meet. The rights allegedly infringed are

those of the nonminority applicants for employment. If

those rights are not violated when a contractor, pur-

suant to an affirmative action plan, gives a direct hiring

preference to minority applicants, then those rights are

not violated when the Union is required, on behalf of the

contractor, to give the preference to minority applicants.

When all the sound and fury subsides, it is evident that

the affirmative action imposed upon the Union’s referral

procedure is a valid and constitutional requirement.

A46

*

Furthermore, a close look at the Second Circuit case

law reveals that the Union's interpretation of the non-

identifiability test would render that test meaningless.

In explaining the rationale for permitting hiring level

racial quotas, the court in Kirkland, supra, stated: “A

hiring quota deals with the public at large, none of

whose members can be identified individually in ad-

vance. 520 F.2d at 429 (emphasis added). As is implicit

in this statement, there is no question that the indivi-

dual members of the public adversely affected by a

hiring level quota can be identified at a later point in

time - simply by later obtaining all applications and

determining the pool of applicants fcr whom jobs were

not available. But since the Second Circuit Court of

Appeals has upheld hiring quotas on several occasions,

see discussion supra, the fact that the pool of applicants

who are denied jobs can later be identified does not

render the racial preference invalid. As the Second Cir-

cuit stated in EEOC, supra, “[ajn entry-level goal has

less ascertainable effect [than a promotion level goal]

since we cannot readily determine who it is that is being

kept out. 532 F.2d at 830 (emphasis added).

The consequence of Local 35’s use of the Out of

Work List is to make identifiable, in advance, the mem-

bers of the prospective work force who will be disad-

vantaged by the giving of preference to minority appli-

cants for employment. The Union’s referral procedure

gathers together in advance the names of the indivi-

uals who will be passed over because of the Affirmative

frustrated by the ability of private parties to establish a

procedure which narrows down the potential n of

job applicants to a small, readily identifiable group.

If the Union’s interpretation of the non-identifiabil-

ity test were to prevail, then no hiring level quota could

ever withstand that test so long as a private party were

able to devise a way in which to identify beforehand the

A47

7s

ultimate victims of the quota. For the non-identifiabil-

ity test not.to be interpreted so as to thwart the very

remedies approved by the court which devised the test.

it must be interpreted to. mean that the potential vic-

tims should not be individually identifiable, not that the

actual victims cannot at some point be identified. For

example, the potential victims of a racial hiring quota

are all those nonminority members of the public who

may apply for the affected job; the actual victims are

those who do apply and are denied a job because of

their nonminority status. On the other hand, in a promo-

tion situation, the potential victims, as well as the

actual victims, are a more limited group of specific

employees who have qualified as eligible for promotion;

thus who it is that is being kept out by a racial goal

at the promotion level is ‘“‘readily’’ determinable. See

EEOC, supra, 532 F.2d at 830; Kirkland, supra.

In the instant case, the potential victims of the

remedial obligation imposed upon the Union are all

those nonminority electrical workers in the general

public who may at some point apply for a job on a City

construction project; this is not a readily identifiable

group of people. The actual victims are identifiable -

those nonminority workers on the referral list at the

time a preference is given to a minority worker - but

this, as discussed supra, does not violate the Second

Circuit’s non-identifiability test. Thus the fact that the

Union has narrowed down the pool of electrical workers

in the general public to a list of 321 applicants on the

Out of Work List does not render an otherwise enforce-

able remedy unenforceable. To accept the Union’s argu-

ment would allow the Union, through the operation of

its hiring hall, to nullify the City’s otherwise lawful

attempt to rectify the vestiges of past discrimination in

the construction industry, which is the purpose of a

Moreover, the underlying judicial concern in this

area of the law is that the impact on innocent persons of

an affirmative action plan not be “inequitable.” See

Fullilove, supra at 4833-35. In assessing what is a per-

missible impact, the court must balance the need for the

remedial program against the interests of the individuals

adversely affected by the program. Id. at 4833; see

Hollander v. Sears, Roebuck & Co., 450 F. Supp. 496,

505-06 (D. Conn. 1978). As Justice Powell stated in

Bakke, supra, 46 U.S.L.W. at 4906, the concern of the

courts is that the remedial action ‘‘work the least harm

possible” to the innocent individuals who must bear the

burden of a justified affirmative action program.

The impact of the plan at issue here is not unduly

burdensome on the affected nonminority electrical

workers. At the time when this controversy arose, there

were 17 minority applicants on Local 35’s Out of Work

List, accounting for 5.3 percent of the 321 persons on

the list. If preferences were given to the minority appli-

cants, the nonminority applicants passed over in favor

of the former would still remain on the Out of Work

List and still be eligible for referral when their turn later

arose. Thus these reverse discriminatees would not be

permanently denied employment, cf. Bakke, supra, 46

U.S.L.W. at 4906 (affirmative action admissions

program totally foreclosed” certain applicants from

admissions to the university); rather they would only

experience a delay in their being referred for employ-

ment. Such an impact is neither overly severe nor

lasting.

Furthermore, applicants on plaintiff's Out of Work

List are not ranked according to seniority nor according

to scores on a job-related test; the applicants are simply

ranked in the order in which they register their availabil-

ity for employment. These applicants know from the

start that they will have to wait an indefinite period of

time before they will be referred for employment; as a

result of the Hartford Plan, that indefinite period of

A49

7s

time would be somewhat longer for the nonminority

applicants. It is clear, therefore, that the reasonable

expectations of the nonminority applicants would only

be minimally affected by the Plan. That being the case,

the burden which the Plan imposes upon them is not

unduly onerous. See Fullilove, supra, at 4834-35 (where

the reasonable expectations” of the nonminority con-

tractors were only minimalſlyl“ frustrated by the 10

percent set aside for minority contractors under the

Public Works Employment Act of 1977, the set-aside

was upheld as not imposing “inequitable results“).

In Fullilove the court concluded, at 4835: Consider-

ing that nonminority businesses have benefited in the

past by not having to compete against minority busi-

nesses, it is not inequitable to exclude them from

competing for this relatively small amount of business

set aside for minority enterprises. Likewise here, con-

sidering that nonminority applicants for employment in

the construction industry have benefited in the past by

not having to compete against minority applicants, it is

not inequitable to delay their being referred for employ-

ment in order to meet the 15 percent minority hiring

goal of the Hartford Plan.

For all of the foregoing reasons, I hold that the

Plan’s requirement that a preference be given to mi-

nority applicants on the Out of Work List does not vio-

late the rights of the nonminority individuals represent-

ed by the Union. Accordingly, summary judgment must

be granted for the defendants as to the Union’s claims

under the Equal Protection Clause of the fourteenth

amendment of the United States Constitution, 42 U.S.C.

51981, and 42 U.S.C. §1983.18

Constitution, I find no violation of the Copnecticut Constitution.

A50

B. Conflict with Other Union Obligations

Having decided that the challenged enforcement of

the City’s Plan does not violate the constitutional rights

of nonminority persons on the Union’s Out of Work

List, I now proceed to plaintiff's other major legal

claims: (1) that the Plan as enforced requires the Union

to violate federal and state employment laws prohibiting

discrimination on the basis of race, and (2) that the Plan

as enforced constitutes an unlawful interference with the

Union’s contractual rights.

The Union contends that the City’s Plan, by requir-

ing the Union to give priority to minority workers on

the referral list, forces the Union to violate statutory

obligations it owes to the nonminority individuals on the

referral list. The Union argues that it is forced to violate

section 703(c) of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §2000e-2(c)(2), which provides:

It shall be an unlawful employment practice

for a labor organization - ...

(2) to...fail or refuse to refer for employment any

individual...because of such individual’s race,

color, religion, sex, or national origin.”

A similar argument was made and rejected in Con-

tractors Association of Eastern Pennsylvania v. Secre-

tary of Labor, 442 F.2d 159 (3d Cir.), cert. denied, 404

U.S. 854 (1971). In that case, contractors challenged a

legislatively imposed affirmative action plan (the Phila-

delphia Plan) mandating a minority hiring quota on the

ground, inter alia, that the quota forced them to violate

section 703(a) of Title VII, 42 U.S.C. §2000e-2(a). Section

703(a) imposes on employers a parallel obligation to that

imposed by section 703(c) on unions. Section 703(a) pro-

vides:

“It shall be an unlawful employment practice

for an employer -

A5l

*

(1) to fail or refuse to hire. any indivi-

dual. because of such individual’s race, color,

religion, sex, or national origin.“

42 U.S.C. §2000e-2(a). The Third Circuit held that the

Philadelphia Plan's hiring quota did not violate the Title

VII provision making it an unlawful employment prac-

tice to refuse to hire an individual on the basis of race:

“To read §703(a) in the manner suggested by

the plaintiffs we would have to attribute to

Congress the intention to freeze the status quo

and to foreclose remedial action under other

authority designed to overcome existing evils.

We discern no such intention either from the

language of the statute or from its legislative

It has been said respecting Title VII that

‘Congress did not intend to freeze an entire

generation of Negro employees into discrimina-

tory patterns that existed before the Act.’

Quarles v. Philip Morris, Inc., supra, 279 F.

Supp. at 514.”

442 F.2d at 173.

For reasons identical to those stated by the Third

Circuit, I hold that section 703(c) of Title VII is not

violated when the Union gives a preference to minority

workers on its referral list in order to comply with the

City’s Plan. To hold otherwise would freeze the status

quo”’ since virtually any remedial action designed by the

eres. ache pene ea ae ee

would be prohibited by Title VII - a result clearly not

VVV

Rights Act of 1964 . e ae ee

tion Co., 424 U.S. 747, 762-63 (1976). On the same basis,

EFF

A52

crimination on the basis of race, Conn. Gen. Stat. $31-

126(c), cannot be read so as to prevent the City of Hart-

ford from attempting to remedy the effects of past

discrimination in the Hartford- area construction

industry, absent any showing that the Connecticut legis-

lature intended to foreclose such otherwise valid reme-

dial action.

The Union next claims that the implementation of

the Plan unlawfully interferes with the Union’s contrac-

tual rights with respect to the exclusive union referral

system to which the union and various.contractors have

bound themselves in a collec e bargaining agreement.

In order to be certified to work on City construction

projects, Local 35 voluntarily agreed to be subject to

the Hartford Plan, including the requirement that the

Union make good faith efforts to comply with the 15

percent minority hiring goal. The Union, therefore, had

the choice of not referring its workers for jobs on City

construction projects at all if it was unwilling to take

the risk that full compliance with the City’s Plan did

not violate its contractual obligations. The fact that the

manner in which the Union operates its hiring hall may

conflict with the requirements of the Plan is not a legal

ground for invalidating those requirements. See Con-

tractors Association of Eastern Pennsylvania v. Secre-

tary of Labor, supra, 442 F.2d at 174. |

In Contractors Association, the interested unions, by

way of amici brief, joined with the plaintiff contractors

in arguing that the minority hiring quota imposed by

the Philadelphia Plan unlawfully interfered with the ex-

clusive hiring hall contracts entered into by the unions

and the contractors. Id., at 172. The court convincingly

rejected that claim by stating:

“It is clear that while hiring hall arrange-

ments are permitted by federal law they are not

required.... If the [affirmative action] Plan vio-

lates neither the Constitution nor federal law,

the fact that its contractual provisions may be

A53

a

at variance with other contractual ' ‘undertakings

of the contractor is legally irrelevant.”

442 F.2d at 174 88 added). If the ‘Union’ 8

argument here were to prevail, the Union, through a pri-

vate contract, would be allowed to obligate itself to vio-

late a valid affirmative action plan. Since union rules

and contracts are not superior to the law of the land,

the Union’s argument must be rejected. 19

The Union also claims that compliance with the

Hartford Plan would force it to violate its duty of fair

representation of all employees regardless of race, which,

the Union contends, would be an unfair labor practice

prohibited by section 8(b) of the National Labor Rela-

tions Act, 29 U.S.C. §158(b). If a nonminority electrical

ing that the Union violated its obligations under the

referral procedure, the duties of the Union would be

interpreted by the NLRB in accordance with governing

federal law. See Amalgamated Association of Street,

Electrical Railway & Motor Coach Employees of

America v. Lockridge, 403 U.S. 274, 284-91. Since the

City’s legislatively imposed preference for minority

workers on the Out of Work List is perfectly lawful, see

discussion supra, the Union’s compliance with that Plan

would be justified under federal law. As with the Title

VII limitation discussed supra, if the National Labor

Cf. Contractors Association of Eastern Pennsylvania,

supra, 442 F.2d at 173 (Title VII). There is no indication

19 Accordingly, plaintiff's pendent state law claim that the City’s

actions constitute tortious infringement of the Union’s property

right in its collective bargaining agreement must be rejected.

A54

that the NLRA was intended to have that effect. Thus

the Union’s compliance with the City’s Plan would not

constitute an unfair labor practice.

For all of the foregoing reasons, the enforcement of

the Hartford Affirmative Action Plan neither violates

the rights of nonminority electrical workers represented

by the Union nor requires the Union to violate the law.

Accordingly, the Union’s challenge to the Plan is defeat-

ed, and the defendants are entitled to judgment as a

matter of law pursuant to Rule 56(c) of the Federal

Rules of Civil Procedure.

SO ORDERED.

Dated at Hartford, Connecticut, this 1lth day of

December, 1978.

/s/ M. Joseph Blumenfeld

United States District Judge

A55

7%

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

Filed March 7, 1978

LOCAL UNION NO. 35 OF:

THE INTERNATIONAL :

BROTHERHOOD OF :

ELECTRICAL WORKERS :

V. : CIVIL NO. H-77-167

CITY OF HARTFORD,

ET AL

RULING ON PENDING MOTIONS

Subsequent to this court’s decision of December 11,

1978, granting summary judgment for the defendants in

this action, the plaintiff Local Union No. 35 filed several

motions challenging that decision.| The grounds upon

The plaintiff contends that the court “erroneously

refused to consider Plaintiff’s claim that the City had no

legal authority to adopt its Affirmative Action Plan.“

1 Plaintiff has filed a Motion For New Trial Pursuant to FRCP Rule

7.

Plaintiff's Motion For A New Trial Pursuant to FRCP

Rule 59 at $2(1). As presented in its recent motions,

plaintiff's claim of lack of authority on the part of the

City to adopt its Affirmative Action Plan consists of

two separate claims: (1) that the City lacked legal au-

thority to adopt its Affirmative Action Ordinance, which

was the basis for the adoption of the Affirmative Action

Plan, and (2) that the City’s legislative finding of dis-

crimination set forth in the Ordinance was “not support-

See Ruling on Pending Motions (hereinafter Ruling),

December 11, 1978, at 10 n. 8.

erroneous. The record of this case prior to my decision

ci December 11, 1978 clearly reflects the plaintiff's legal

Plan as ted. See Plaintiff's Reply Brief to

Defendants’ Su tal Memorandum at 4; Plaintiff’s

Supplemental Brief Re Bakke at 8. Plaintiff consistently

3788 f

seeks

otions

15

and

findings. M

ederal

ted where

the case

raised

Aircraft

721

68

U

5 of the City’s legislative findings

2(b)

Cir. 1973), rev'd on other grounds, 421 U.S. 1

Echevarria v. United States Steel Corp., 392 F.2d 885

892 (7th Cir. 1968); Evans, Inc. v. Tiffany & Co., 416 F.

Corp. v. Renegotiation Board, 482 F.2d 710,

Supp. 224, 245 (N.D. III. 1976).

01

141111

i

Union now to attack the factual basis of the City’s legis-

lative findings. The 3 which the plaintiff

presently challenges the City’s s findings, see Plaintiff's

Combined Memorandum, filed January 3, 1979, at 19-

2i, would not justify this court’s invalidating those find-

ings under whatever standard of judicial review is ap-

plicable, whether that of “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law,’ [or] the possibly stricter standard of... ‘unsupported

by substantial evidence. Cf. Automobile Club of New

York, Inc. v. Cox, No. 78-6054, slip op. at 915 (2d Cir.

Jan. 12, 1979). Great deference must be accorded the

deliberative actions of a legislative body. See Fullilove v.

Kreps, 584 F.2d 600, 604-06 (2d Cir. 1978). Thus plain-

tiff’s effort to reopen the case to raise this challenge is

rejected.

II

Plaintiff raises several other grounds in support of

its motions. The majority of these grounds state

arguments previously raised by the plaintiff which were

considered and rejected in my decision of December 11.

1978. Plaintiff's motions under Fed. R. Civ. P. 52 b) and

59 are denied to the extent that they attempt to reliti-

gate matters previously decided. As to grounds not

raised previously - namely, (1) plaintiff’s claim that the

standard for determining the existence of and member-

ship in an ethnic group to be accorded preferential treat-

ment is unconstitutionally vague and (2) plaintiff's

claims raised in its Proposed Fourth Amendment to the

Complaint - these are rejected as not timely presented.

See cases cited supra.

III

Plaintiff also moves to reopen the case on the

ground that the court made several erroneous find -

ings” in the decision of December 11, 1978. See Plain-

tiff's Motion to Amend and Make Additional Findings

of Fact Pursuant to FRCP 52(b). All of the erroneous

statements which plaintiff alleges were made in the

court’s decision have been dealt with by the above dis-

cussion with the exception of the following: plaintiff

requests that the court’s statement that the potential

victims of the Affirmative Action Plan are all those

nonminority electrical workers in the general public who

may at some point apply for a job on a City construc-

tion project,” Ruling at 26, be deleted and changed to

“all those unemployed nonminority electrical workers

who are journeymen electricians licensed in Connecticut”

who may at some point apply for a job on a City con-

struction project. Plaintiff's Motion to Amend and Make

Additional Findings of Fact at 412. Since the group of

nonminority licensed journeymen electricians is derived

from all those nonminority electrical workers in the gen-

eral public, the court’s statement was not inaccurate;

nor would the plaintiff's requested change affect the

court’s analysis or ultimate decision in any way. Thus

no amendment to the court’s decision in this regard is

necessary.

For all of the foregoing reasons, plaintiff’s motions

to reopen the case® are denied, and it is

SO ORDERED.

Dated at Hartford, Connecticut, this 7th day of

March, 1979.

/s / M. Joseph Blumenfeld

United States District Judge

5 See note 1 supra.

A60

BEFORE THE CONTRACT ENFORCEMENT

COMMITTEE

‘CITY OF HARTFORD July 7, 1977

IN THE MATTER OF: LOCAL UNION NO. 35

(I. B. E. W.)

MEMORANDUM OF DECISION

The Greater Hartford Affirmative Action Plan

adopted on November 25, 1974, was established to en-

sure equal employment opportunity for minority group

persons, including women...in all phases of construction

work performed pursuant to major contracts awarded by

the City of Hartford...under the provisions of its Munici-

pal Charter and Code.” (Section 1. purpose, Greater

Hartford Affirmative Action Plan).

The present controversy involves certification, the

procedure whereby the Hartford City Manager or his or

her designee, certifies an organization to participate in

city construction work.

On October 8, 1975, Local No. 35 of the Internation-

al Brotherhood of Electrical Workers (IBEW), herein-

after Union Local No. 35” or Union,” submitted its

Affidavit for Certification, in which it stated in para-

graph 4:

“The local hereby agrees to comply with the

contractual responsibilities regarding the man-

ning of City of Hartford projects.

The manning responsibilities with respect to City of

Hartford projects are detailed in Section 5D of

the

“Greater Hartford Plan,” which reads in essential part

as follows:

A61

“The category C party (Human Relations Com-

mission)...shall set minimum participatory goals

on city projects for minority personnel, includ-

ing women. Such goals shall be at least fifteen

(15%) percent of the daily manhours worked by

each trade on such project...’

Pursuant to its Affidavit for Certification, the union

was provisionally certified on October 31, 1975 under

Section 8 of the Municipal Code and Greater Hartford

Plan as eligible to participate on city construction and

improvement projects.

Union Local No. 35 is a labor organization which

represents electrical workers throughout Connecticut

and in areas of Rhode Island. The union is party to a

collective bargaining agreement with the Central Con-

necticut Chapter, Hartford Division National Electrical

Contractors Association, Inc. (hereinafter NECA) under

which the union is the exclusive source of referral of

applicants for employment.

The union was able to comply with its manning

responsibilities under the Plan until the early months of

1977, during which time several contractors working on

city construction projects who utilize the local’s mem-

bers notified Mr. Johnson that they were unable to

comply with the 15% minimum minority manning re-

quirement because the union was not referring enough

minority workers to the projects involved.

On February 8, 1977, Mr. Ronald Fletcher, Senior

Field Representative for the City’s Commission on

Human Relations met with officials of the union and its

attorney, Mr. William Zeman, to discuss the compliance

problem.

During the meeting, en

i

K

:

:

At the time of the meeting, the out of work list in

question contained 321 names and the minority worker

appearing first on the list was number 85 out of the 321

names.

Mr. Fletcher, noting and concluding that reliance on

such a referral system would not meet the 15% mini-

mum minority manning goals, met with his superior Mr.

Johnson to discuss possible courses of action.

Pursuant to that meeting, Mr. Johnson informed

this Committee by memorandum dated February 28,

1977 that utilization of the out of work list of union

local No. 35 would be directly in conflict with the mino-

rity manning provisions for City of Hartford projects...

and recommended that the Contract Enforcement Com-

mittee of the Court of Common Council meet to consider

the continued eligibility for IBEW Local No. 35 to parti-

cipate upon City of Hartford projects pursuant to Sec-

tion 2-175.8 (now 2-321-33) of the Code.

On April 11, 1977, Councilman Raymond Monteiro,

Chairman of the Contract Enforcement Committee,

acting upon Mr. Johnson’s recommendation, called for a

public hearing, which was held by the Contract Enforce-

ment Committee on April 21, 1977.

Findings:

1. Pursuant to its signed “Affidavit for Certifica-

tion,“ submitted to the City of Hartford on October 8,

1975, union local No. 35 was provisionally certified by

the Hartford City Manager under Section 8 of the Hart-

ford Affirmative Action ordinance on October 31, 1975.

This Certification established the eligibility of the union

to participate in City of Hartford construction and

improvement projects.

2. The union complied with the Affirmative Action

Plan’s 15% minimum minority manning requirement

from the time the union signed the ‘Affidavit for Cer-

tification” until the early months of 1977, at which time

A63

*

notice was given by several contractors to Mr. Arthur

Johnson that the union was no longer meeting the

manning goals and thus was no longer in compliance

with its Affidavit for Certification.“

3. This compliance controversy arose in large part

because the union had begun using an out of work“

list rotation systera for worker referral to the various

city construction projects. This system was adopted on

or around January of 1976. Prior to that time the union

had operated referrals for at least thirty years without

use of an out of work' list referral system.

4. No notice of the list’s adoption was given to the

City Manager or to his designees at the time of its

adoption. The City’s initial knowledge of the list’s exist-

ence came on February 8, 1977 as the result of a meet-

ing between Mr. Johnson’s representative and the union

and its Attorney.

5. Prior to the early months of 1977 the union had

been able to comply with its ‘‘Affidavit for Certifica-

tion“ because the Union did not follow the “out-of-

work“ list referral system.

6. In view of the present make-up of the out of

work”’ list, its strict use as a referral system by the

union will make compliance with the union’s “Affidavit

for Certification’’ impossible.

Conclusion:

The union’s position has been evaluated by this

Committee solely on the basis of its efforts to comply.

The Affirmative Action Ordinance makes clear that the

burden of showing good faith effort to comply rests

squarely with the union.

In view of the fact that the union currently is not

meeting the minority manning goals it pledged to meet

in its “Affidavit for Certification,“ and in view of our

finding that strict use of the out of work list virtually

A64

precludes compliance with that affidavit, the committee

finds and concludes that use of the out of work list is

clear evidence of lack of good faith effort to comply on

the union’s part.

The union has not demonstrated that it is making a

good faith effort to comply with its affidavit, and in

view of the absence of any showing of good faith effort,

the above-established non-compliance cannot be excused.

Thus, the committee must find the union out of compli-

ance with its ‘Affidavit for Certification.“

Pursuant to these findings, the committee hereby

gives the union 30 days in which to comply with its

affidavit or to show a good faith effort to comply.

Absent such positive determinations after the expiration

of the 30 day period, the committee will act to declare

the union out of compliance, and will decertify the

union. Such decertification will render the union inelig-

ible to participate in city construction or improvement

projects pending a showing of compliance or good faith

effort to comply, in which case certification will be re-

considered by the committee.

CONTRACT ENFORCEMENT COMMITTEE

A65

7%

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

Filed December 26, 1978

LOCAL UNION NO. 35 OF

THE INTERNATIONAL

BROTHERHOOD OF ELEC-

TRICAL WORKERS

v. : CIVIL ACTION NO.

: H77-167

CITY OF HARTFORD, CITY :

MANAGER OF THE CITY OF :

HARTFORD, COMMISSIONER :

ON HUMAN RELATIONS OF

THE CITY OF HARTFORD,

CONTRACT ENFORCEMENT

COMMITTEE OF THE CITY W :

OF HARTFORD and RONALD :

FLETCHER, individually and as:

Senior Field Representative of

the Committee on Human Rela- :

tions of the City of Hartford

JUDGMENT

The above-identified action came on for considera-

tion by the Court by the Honorable M. Joseph Blumen-

feld, United States District Judge, of the parties’ Cross-

Motions for Summary Judgment; and,

The Court, after a hearing on the parties’ Motions

and after consideration of all materials submitted in con-

nection therewith, filed its Ruling thereon ordering that

Judgment enter for the Defendants;

A66

It is therefore accordingly ORDERED and AD-

JUDGED that Judgment enter and hereby does enter

for the Defendants.

Dated at Hartford, Connecticut, this 28th day of

December, 1978.

Sylvester A. Markowski

Clerk, United States District Court

By: /s/

Chief Deputy

A67

*

*

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

Filed September 3, 1980

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York, on

the third day of September, one thousand nine hundred

and eighty.

Present: HON JAMES L. OAKES

HON. ELLSWORTH A. VAN GRAAFEILAND

Circuit Judges

HON. EUGENE H. NICKERSON

District Judge

LOCAL UNION NO. 35 OF THE

INTERNATIONAL BROTHERHOOD

OF ELECTRICAL WORKERS,

Plaintiff-Appellant

V.

CITY OF HARTFORD, CITY

MANAGER OF THE CITY OF HART-

FORD, COMM. ON HUMAN RELA-

TIONS OF THE CITY OF HARTFORD,

CONTRACT ENFORCEMENT COM-

MITTEE OF THE CITY OF HART- 79-7253

FORD, AND RONALD FLETCHER,

individually and as SENIOR FIELD

REPRESENTATIVE OF THE COMM.

ON HUMAN RELATIONS OF THE

CITY OF HARTFORD.

Defendants-Appellees

A68

A petition for a rehearing having been filed herein

by counsel for the Appellant Local Union No. 35, OF

THE INTERNATIONAL BROTHERHOOD OF ELEC-

TRICAL WORKERS.

Upon consideration thereof, it is Ordered that said

petition be and hereby is denied.

A. DANIEL FUSARO

Clerk

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

Filed September 3, 1980

At a stated term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York, on

the 3rd day of September, one thousand nine hundred

and eighty.

X

LOCAL UNION NO. 35, IBEW

Plaintiff-Appellant

vs.

CITY OF HARTFORD, ET AL

Defendants-Appellees

X

A69

7s

A petition for rehearing containing a suggestion

that the action be reheard in banc having been filed

herein by counsel for the plaintiff-appellant, Local Union

No. 35, IBEW 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/ Wilfred Feinberg

Chief Judge

A70

Hartford Code

ARTICLE X. AFFIRMATIVE ACTION PLAN

DIVISION 1. GENERALLY

Sec. 2-321. Purpose.

This article is adopted for the purpose of insuring

equal employment opportunity for minority group per-

sons and women in all phases of construction work, in-

cluding the bidding process, performed pursuant to

major contracts offered and awarded by the city under

the provisions of the Charter and this Code. (Code 1960,

§2-1-76; Ord. No. 35-74, §1, 11-25-74; Ord. No. 8-75, §1,

4-14-75).

Sec. 2-322. Legislative policy and findings.

It is declared and found that:

(a) Many contractors, labor unions, hiring halls,

crafts and trades in the construction industry in the

Greater Hartford Area have discriminated, and continue

to discriminate, against minority group persons and

women.

(b) It is the intention of the city not to aid or abet

such discrimination by awarding contracts to contrac-

tors who practice or have practiced discrimination

against minority group persons and women, or who have

subcontracted to, or engaged the services of, individuals

and organizations that deny or have denied equal

employment opportunity to minority group persons and

women.

(c) The continuing effects of past and present dis-

crimination against minority group persons and women

by the construction industry may be prevented, miti-

gated and/or eliminated by an affirmative action plan.

A71

*

the United States Constitution, Article 1. Section 20 of

the Constitution of the State of Connecticut, 42 United

States Code, Section 1981, 42 United States Code, Sec-

tion 2000(e), Presidential Executive Order Numbers

11246 and 11375, the Governor’s Executive Order

Number 3, and Chapter II, Sections 5 and 7 and

Chapter VIII. Section 11 of the Charter authorize and

ment contracts to insure that no public funds are used

to promote, maintain or effectuate the denial of equal

employment opportunity. (Code 1960, §2-176; Ord. No.

35-74, §2, 11-25-74; Ord. No. 8-75, §2, 4-14-75).

which clearly indicates to the contrary:

Construction work includes, but is not limited to,

Good faith effort means every reasonable attempt to

comply with the provisions of this article and the Hart-

ford Affirmative Action Plan and every possible mea-

sure to achieve the level and participation of minority

group and female workers and trainees established by

the plan has been taken.

Minority group person means a person of Black,

Puerto Rican, Spanish-American, Oriental or American

Indian ethnic or racial origin and identity. For purposes

of this article, the term minority group persons shall

also include women.

Organizations include the following trades, labor

organizations and all subcontractors working in or con-

nected with the construction industry: Bricklayers, car-

penters, lathers, operating engineers, painters, glaziers,

roofers, iron workers, teamsters, asbestos workers,

boilermakers, electrical workers, elevator constructors,

plumbers, sheet metal workers, steamfitters, pipe fitters,

laborers’ unions, tile setters, and any other groups in-

volved in construction work. For purposes of this article,

the term organizations shall include vendors of con-

struction materials who employ at least fifteen (15) in-

dividuals).

Qualified means skilled in a craft or trade or avail-

able for training in a craft or trade.

Women includes women of all races and ethnic

groups. (Code 1960, §2-176; Ord. No. 35-74, §4, 11-25-74;

Ord. No. 8-75, §3, 4-14-75).

Sec. 2-324. Enforcement.

Except as otherwise provided, the city manager, or

his or her designee, shall be responsible for the adminis-

tration and enforcement of this article. (Code 1960, §2-

176; Ord. No. 35-74, $4, 11-25-74; Ord. No. 8-75, §4, 4-14-

75).

A738

7%

Sec. 2-325. Adoption of plan.

The council shall adopt by resolution an affirmative

action plan to be known as the Hartford Affirmative Ac-

tion Plan. Said plan will be incorporated into all capital

construction and improvement bid proposals and con-

tracts involving the expenditure of at least ten thousand

dollars ($10,000.00) for construction work in the fields of

public works and housing. Said plan and any amend-

ments thereto, may be adopted only after certification

by the corporation counsel that the plan and/or amend-

ments will meet all of the following standards:

(a) Establishes reasonable minimum percentage goals

for minority group and female employment in the con-

struction industry, considering the extent of past and

present discrimination and the qualified minority group

and female labor force in the Greater Hartford Area;

(b) Contains provisions that will insure strict com-

pliance with the provisions and intent of this article:

(c) Is designed to mitigate and eliminate the barriers

to equal employment opportunity without delay; and

(d) Provides that noncompliance will be considered a

breach of contract and subject to meaningful sanctions

that insure that public funds do not directly or indirect-

ly aid discriminatory acts of contractors and organiza-

tions.

Nothing herein shall be construed as prohibiting the

court of common council from modifying said plan when

such modification is necessary as a condition to receiv-

ing state or federal moneys for construction projects or

improvements. (Code 1960, §2-176; Ord. No. 35-74, 865,

11-25-74; Ord. No. 8-75, §5, 4-14-75).

Sec. 2-326. Notice to bidders.

All notices to prospective bidders publi on be-

half of the city shall include as a part of the contract,

specifications that all bidders shall be required to

A74

comply with the provisions of this article. (Code 1960,

§2-176; Ord. No. 35-74, §6, 11-25-74; Ord. No. 8-75, §6, 4-

14-75).

Sec. 2-327. Responsibility of prime contractors.

(a) Prime contractors, as a condition of their con-

tracts, shall be responsible for the proper submission to

the city manager, or his or her designee, of proof or

documentation in accordance with procedures prescribed

by this article and Hartford’s affirmative action plan

regarding compliance by all their subcontractors, and,

further, for the subsequent performance thereunder by

such contractors. All contractors shall submit, not later

than thirty (30) days after the submission of their bids,

affidavits signed by all subcontractors and officials of

all organizations with which they have referral arrange-

ments or agreements covering workers to be employed

on the project involved, which affidavits shall incorpor-

ate such subcontractors and organizations into the affir-

mative action plan. In the event any such subcontractor

or organization refuses to submit such affidavit, the

prime contractor shall include the name and address of

each such subcontractor or organization with his or her

bid; and, except as provided in section 2-328, the city

manager, or his or her designee, shall submit such infor-

mation with his or her recommendations to the contract

enforcement committee hereinafter established, and said

committee may certify that such subcontractor or

organization is disqualified from participating in the per-

formance of said contract or any future contract unless

and until such party satisfactorily complies with the

above requirements.

(b) Such statements, as referred to in subsection (a),

shall be required of all subcontractors and organizations

subsequently employed by the prime contractor after his

or her bid is submitted; and if any subcontractor or

organization refuses to issue such statements, the prime

contractor is prohibited from employing his, her or its

services in performing his contractual duties. (Code

1960, §2-176; Ord. No. 35-74, §7, 11-25-74; Ord. No. 8-75,

§7, 4-14-75). ATS

7%

Sec. 2-328. Certification.

(a) If an organization which performs substantial

construction work beyond the Greater Hartford Area

declines to submit the affidavit referred to above, the

city manager, or his or her designee, may certify that

such organization be allowed to participate in the con-

struction work required by a city contract. The city

manager or his or her designee, shall not consider certifi-

cation unless and until such organization has submitted

the following documents and data:

(1) The number and classification of minority

group persons and women who are members of or em-

ployed by such organization.

(2) The percentage of members, employees,

and/or trainees of such organization who are minority

group persons and women in both the Greater Hartford

Area and the total area within the jurisdiction of such

organization.

(3) The percentage of members, employees, and/

or trainees of such organization who are minority group

persons and women within each trade or training pro-

gram within such organization in both the Greater Hart-

ford Area and the total area within the jurisdiction of

such organization.

(4) The total area within which such organization

performs construction work.

(5) An affidavit by an authorized official of such

organization stating it will not practice discrimination in

the future in regard to minority group individuals and

women and will eliminate any continuing effects of past

discrimination.

(6) An affidavit by an authorized official of such

organization stating that it agrees with Hartford’s affir-

mative action plan and will make a good faith effort to

comply with its provisions.

A76

(7) An affidavit by an authorized official of such

organization indicating the specific number of new mi-

nority and female journeymen or apprentices it expects

to admit during the next twelve (12) months.

(b) The city manager shall certify such organization

only if he makes the following findings:

(1) The organization’s nature, number of employ-

ees and scope of employment are such that it cannot

reasonably be expected to adopt Hartford’s affirmative

action plan as a contractual provision;

(2) Public funds will not be used, directly or in-

directly, to promote or maintain discrimination against

minority group persons and women as a result of such

certification; and

(3) The documents and data submitted clearly

indicate that such organization has accepted, is accept-

ing or will in the immediate future be accepting ade-

quate minority group and women participation in its

operations.

(c) Any person aggrieved by the city manager’s deci-

sion to certify or not to certify an organization may

appeal such decision to the contract enforcement com-

mittee. The contract enforcement committee shall have a

public hearing after providing notice in a newspaper of

substantial circulation in the Greater Hartford Area.

The contract enforcement committee may overrule the

city manager’s determination by majority vote. At all

times during such proceedings, the burden of proof will

be on the party challenging the city manager’s determi-

nation.

(d) If the city manager, or his or her designee,

determines that any organization certified under subsec-

tion (a) is not in compliance with any affidavit sub-

mitted, or has submitted inaccurate data, a public

AT7

7%

hearing will be held by the contract enforcement com-

mittee consisting of at least three (3) members of the

council, duly designated by the council. Said committee

shall establish its own bylaws and procedures. Before

any public hearing is held, notice thereof shall be pub-

lished in a newspaper of substantial circulation in the

Greater Hartford Area. If such committee determines by

majority vote that the certified organization is not in

compliance with its affidavits and/or has submitted false

or misleading data, it may authorize any or all of the

following actions:

(1) Cancel, terminate or suspend any further con-

struction work to be performed by such organization

under the contract;

(2) Declare that such organization is ineligible

for further city contracts until it fully complies with its

affidavits and/or provides accurate data;

(3) Publish, or cause to be published, the name

of such organization in a newspaper of substantial cir-

culation in the Greater Hartford Area; and

(4) Any further measures necessary to effectuate

the purpose of this article. (Code 1960, §2-176; Ord. No.

35-74, §8, 11-25-74; Ord. No. 8-75, §8, 4-14-75).

Sec. 2-329. Job referral banks.

For the purpose of assisting in the placement of

minority and female workers, the council shall designate

by resolution one or more public or private agencies as

job referral banks for minority and female workers, con-

tractors and subcontractors. Said job referral banks

shall compile lists by trades of all qualified minority

group and female workers in the Greater Hartford Area

for construction work, and shall make such lists avail-

able to any contractor or organization upon request. The

city manager, or his or her designee, shall inform all

contractors bidding for and/or receiving city contracts,

of the name and address of all agencies so designated.

A78

(Code 1960, §2-176; Ord. No. 35-74, §9, 11-25-74; Ord.

No. 8-75, §9, 4-14-75).

Sec. 2-330. Compliance.

(a) Whenever the city manager, or his or her desig-

nee, determines that a contractor or organization, other

than an organization certified under section 2-328, has

failed to meet the goals established by Hartford’s affir-

mative action plan or to comply with other provisions of

the plan, there shall be a presumption that such con-

tractor or organization has breached the city contract

awarded. The city manager, or his or her designee, shall,

by certified mail, notify the contractor or organization of

his or her findings and may cancel the contract or with-

hold payments due thereunder. The contractor or organi-

zation may appeal the decision of the city manager to

the contract enforcement committee within ten (10) days

from the date of notification of the city manager’s deci-

sion by written notice of appeal. Upon the request of the

contractor or organization, the contract enforcement

committee shall hold a public hearing on such appeal. At

all times during the proceedings of the appeal, the

burden of proving compliance with this article and Hart-

ford’s affirmative action plan will be on the contractor

or organization. During the pendency of the appeal, the

decision of the city manager, or his or her designee,

shall remain in full force and effect. If the contract en-

forcement committee sustains the appeal of the con-

tractor or organization by majority vote, the contract, if

canceled, may be reinstated or any payment withheld

ordered paid to the contractor.

(b) In the event the contract enforcement committee

sustains the city manager, or his or her designee, by

majority vote, it may authorize any or all of the follow-

ing actions:

(1) Reaffirm the action taken by the city man-

ager, or his or her designee.

A/

1

*

2) Institute any further action, including but

not limited to, canceling, terminating or suspending any

future contract work to be performed by such contractor

or organization under the contract, declaring such con-

tractor or organization ineligible for future city con-

tracts until it fully complies with this article and Hart-

ford’s affirmative action plan, and publishing or causing

to be published the name of such contractor or organiza-

tion in a newspaper of substantial circulation in the

Greater Hartford Area.

(c) The contractor or organization shall be liable for

any and all damages, losses or delays as a result of any

determinations made by the city manager, or his or her

designee, or by the contract enforcement committee,

that such contractor organization has failed to comply

with the provisions of this article. All contracts entered

into between the city and any contractor or subcon-

tractor shall provide that the city shall not be liable for

any of such damages, losses or delays. (Code 1960, §2-

176; Ord. No. 35-74, §10, 11-25-74; Ord. No. 8-75, §10, 4

14-75).

Sec. 2-331. Tax abatement contracts.

The committee on abatement of taxes and assess-

ments shall not, pursuant to the provisions of section

31-12 of this Code, enter into any contract for the abate-

ment of taxes with the owner of any proposed housing

or rehabilitation project unless the contractor employed

to construct said project agrees to comply fully with the

provisions of this article; provided, however, that the

provisions of this section shall not apply if the project

has been commenced prior to the effective date of this

ordinance, or if the committee unanimously waives the

applicability of this section. This subsection shall not

apply to any tax abatement project involving the

expenditure of less than twenty thousand dollars

($20,000.00) or involving the construction or rehabilita-

tion of six (6) dwelling units or less. (Code 1960, 62-176;

Ord. No. 35-74, §11, 11-25-74; Ord. No. 3-75, 2-27-75;

Ord. No. 8-75, 611, 4-14-75).

A80

Sec. 2-332. Properties receiving city loans and tax bene-

fits. .

The provisions of this section shall apply to all con-

tracts for the construction, reconstruction, improvement,

alteration or repair of any development property, as that

term is defined under Public Act 75-2, performed for the

city, or any delegatee of the city, or any private sponsor

who receives a loan or tax benefit from the city under

the provisions of said act. All public and private con-

tracts for the development, redevelopment, improve-

ment, alteration or repair of any property within the

city which will be subject to a city tax benefit, author-

ized under the provisions of any state statute, shall also

be subject to the same affirmative action conditions con-

tained herein. The provisions of this section and the

Greater Hartford Affirmative Action Plan shall be incor-

porated into all contracts subject to this subsection.

This subsection shall not apply to any project involving

the expenditure of less than twenty thousand dollars

($20,000.00) or involving the construction or rehabilita-

tion of six (6) dwelling units or less. (Ord. No. 8-76, 2-9

76).

Sec. 2-333. Purchases by city without bids to be awarded

to equal opportunity employers.

All purchases by the city for which bids are not

solicited shall be awarded only to equal opportunity em-

ployers in accordance with standards prepared by the

city manager and approved by the court of common

council. Between two (2) equal prices for the same

quality goods or services, preference shall be accorded to

a city-located business over a noncity-located business,

and a state-located business over a nonstate-located

business. (Ord. No. 12-75, 5-12-75).

Editor’s note — Ord. No. 12-75, adopted May 12, 1975, did not

specifically amend the Code. Codification herein as §2-333 was, there-

fore, at the discretion of the editor.

Charter reference — Competitive bidding, Ch. VIII, $10.

Secs. 2-334 — 2-343. Reserved.

DIVISION 2. PROFESSIONAL SERVICES

A81

7%

>?

THE GREATER HARTFORD

AFFIRMATIVE ACTION PLAN

PREAMBLE

THIS AGREEMENT, entered into as of the

day of , 197 „ is by and between the City

of Hartford and all contractors and organizations, as

defined herein, in the construction industry which are or

will become signatories to this Agreement.

This Agreement is to be implemented in accordance

with the affirmative action mandate of the Thirteenth

and Fourteenth Amendments to the United States Con-

stitution, Article 1, Section 20 of the Constitution of the

State of Connecticut, 42 United States Code, Section

1981, 42 United States Code, Section 2000(e), Presi-

dential Executive Order Numbers 11246 and 11375, the

Governor’s Executive Order Number 3, Chapter II, Sec-

tions 5 and 7, the Chapter VIII, Section 11 of the

Charter of the City of Hartford, and Hartford’s Equal

Employment Opportunity Contract Compliance

Ordinance (hereinafter called Ordinance), a copy of which

is attached hereto.

Any contractor or organization which refuses to sign

this Agreement is prohibited from participating in any

City construction or improvement project, unless such

contractor or organization is certified in accordance with

the certification procedures of the Ordinance.

This Agreement is hereby incorporated into all con-

tracts for City construction work between the City and

the signatories hereto, as if fully stated as a contractual

provision. A breach of this Agreement shall constitute a

breach of all such contracts, and be subject to all reme-

dies provided by the contract, the Ordinance and the

law for breach.

A82

Section 1. PURPOSE

The parties to this Agreement intend to ensure

equal employment opportunity for minority group per-

sons, including women, as defined herein, in all phases

of construction work performed pursuant to major con-

tracts awarded by the City of Hartford (hereinafter

called City) under the provisions of its Municipal Chart-

er and Code.

Section 2, COVERAGE

This Agreement shall apply to all public building

and construction work, Federal, State or local, and to all

private building and construction work, union or non-

union, which is undertaken in the geographic area of

this Plan.

Section 3. PARTIES

The parties to this Agreement shall be divided into

four categories. Category A shall include general con-

tractors, subcontractors, specialty contractors, vendors

of construction material, and/or any associations which

represent them. Category B shall include local union

organizations and representatives of non-union labor,

and may include regional councils and associations,

internal associations or organizations of local union

organizations. Category C shall include the City Mana-

ger, or his or her designee. Category D shall include

representatives of minorities and women in the field ol

construction work.

*

B. In addition, the following words and phrases

shall have the meanings hereinafter set forth except

where such terms are used in a context which clearly

indicates to the contrary:

1. “Applicant” includes any person who appears

at a job site or office of Category A or B party, seeking

employment on a project or projects covered by this

Agreement or membership to such party, or one who is

listed with any job referral bank so designated by the

Court of Common Council of the City pursuant to the

Ordinance.

2. Craft“ or construction industry craft’

means a category of skill corresponding to any group of

workers employed in the construction industry.

3. General Construction Trades” includes, but

is not limited to, the following trades: bricklayers,

carpenters, lathers, operating engineers, painters,

glaziers, roofers, iron workers, teamsters and laborers;

plus any work under which the respective craft has

jurisdiction.

4. Hartford Labor Market Area includes the

following cities and towns: Avon, Bloomfield, Bolton,

Canton, East Granby, East Hartford, East Windsor,

Ellington, Enfield, Glastonbury, Granby, Hartford,

Manchester, Rocky Hill, Simsbury, Stafford, Somers,

South Windsor, Tolland, Vernon, West Hartford,

Wethersfield, Windsor and Windsor Locks. It is noted

that the coverage of this Plan may vary according to

trade jurisdictional territory.

apprentice, as those terms are commonly used

understood in the construction industry or are given

meaning in Section 7 below.

6. “Staffing Table” means a chart which sets

forth the goals and time tables of each organization in

regard to the employment of minority and nonminority

personnel. Each such chart shall include a list of ‘the job

classifications in each craft and the number of persons

in each craft in each job

7. “Mechanical Trades” includes, but is not

limited to, the following trades: asbestos workers, boiler-

makers, electrical workers, elevator constructors, plumb-

ers, sheet metal workers and steamfitters - pipefitters;

plus any work under which the respective craft has

jurisdiction. |

8. Resident of the Hartford Labor Market

Area means any person who is currently a resident of

the Hartford Labor Market Area.

9. City Project” includes all phases of construc-

tion work in public works and improvements and hous-

ing involving the expenditure of at least Ten Thousand

($10,000.00) Dollars for which the City has contracted or

will contract pursuant to competitive bidding, or

without competitive bidding, if authorized by a State or

federal statute. Tax abatement projects will fall within

the purview of Section 11 of Section 2-176 of the

Municipal code shall be considered City projects. All

other projects shall be considered non-City projects.

Section 5. EMPLOYMENT OF MINORITY WORKERS

nized by all parties to this Agreement

8

:

:

Sarr

. a

ap

time during which these goals are to be achieved shall

be not less than one year, nor greater than five years, as

determined by the Category C party after consultation

with Category A, B and D parties. The following criteria

shall be applied in determining the percentage goals for

minorities and women to be trained and employed with-

in each craft under this Agreement: (1) the extent of

past and present discrimination within the craft; (2) the

qualified minority and female labor force in the Hartford

Labor Market. Area; and (3) the jurisdictional area of the

craft.

B. During any period of time that the signatories to

this Agreement have not met their interim goals for

minorities and/or women, they shall employ said person-

nel into their respective organizations at a minimum

rate of fifty (50%) per cent of all new entrances, as

determined by the Category C party after consultation

with Category A, B and D parties. The only exception

from this provision is specialists. A definition of

“specialists” shall be adopted by the Administration

Committee, and subject to the approval of the Category

In those cases, wherein several contractors employ

trade on a ect, the minimal fifteen (15%)

cent daily trade participation will apply to the

cases

union

responsibility to achieve the fifteen (15%) per cent mini-

mal participatory goals. Contractors unable to achieve

the fifteen (15%) per cent minimal trade participation

within their crew shall state in writing their attempts

and reasons for not being able to do so to the Category

The Category A and B parties agree to make a good

gory C party and the administration coordinator shall be

allowed to visit and inspect non-City projects at reason-

able times to insure the implementation of this provi-

:

Section 6. IMPLEMENTATION

A. All parties to this Agreement recognize that in

B. To advise and assist the Category C party in the

implementation and operation of this Agreement, there

shall be an Administration Committee.

1. The Administration Committee shall be

comprised of twelve (12) members as follows:

Four (4) representatives to be selected

by Category A party;

A87

7

Four (4) ‘representatives to be selected

by Category B party; and

Four (4) representatives of the Category

D party to be selected by organizations

representing minorities and women.

2. At least one of the representatives selected by the

Category A party shall be a representative of major

vendors of construction material. At least one of the

representatives selected by the Category A party shall

be a minority contractor.

3. At least one of the representatives selected by

the Category B party shall be a representative of non-

union labor.

4. The terms of the representatives to the

Administration Committee shall be for two year periods,

provided that two of the representatives from each cate-

gory of parties chosen to the first Administration

Committee so constituted shall serve for one year terms.

5. The Administration Committee shall choose

its own chairperson, by majority vote, who shall main-

tain his or her vote at all times.

6. The Category C party shall contact repre-

sentatives of the Category A, B and D parties upon the

adoption of this Agreement for the purpose of notifying

said parties that they have no more than 45 days to

select their initial representatives to the Administration

Committee, and the Craft Operations Committees,

hereinafter established. If any party has failed to select

their representatives at the expiration of the 45 day

period, the Contract Enforcement Committee, establish-

ed by the Ordinance, may appoint such representatives

or may take any other action which it deems appropriate

to insure full, fair and equitable representation on the

A88

*

shall not have any voting privileges. :

9. The Administration Committee shall adopt its

own by-laws, which by-laws shall not be inconsistent

with ine provisions of this Agreement. The Administra-

tion Committee shall meet at least monthly at such

times and places as it shall designate. The Chairperson

shall have the power to call such special meetings as he

or she deems desirable, provided, however, that he or

she provides at least 24 hours notice of such meetings

to all Committee members, unless a member of each of

the four parties listed in subsection B. 1. of this section

without regard to the number & representatives present

from each category of parties. A majority of votes so

cast shall be necessary for the taking of action by the

Committee.

10. The duties of the Administration Committee

shall include the following:

ry

a. To provide the Category C party with the

consultation and information he or she deems necessary

for the successful implementation of this Agreement.

b. To make such recommendations to ensure

the successful implementation of this Agreement as it

deems necessary.

c. To establish a nonprofit corporation for

the securing of funding for the monitoring of the overall

program. The members of the Administration Com-

mittee shall serve on the Board of Directors of any such

corporation organized.

d. To enter into contracts and agreements

with government agencies, individuals, community

action agencies or other resource groups to carry out

any phases of the program.

e. To supervise the Craft Operations Com-

mittees.

| f. To mediate and arbitrate any complaints

or grievances concerning programs developed by a Craft

Operations Committee, which mediation and arbitration

shall be final and binding in accordance with law.

g. To prescribe fair and equitable methods

for the selection of members and alternates, so as to

insure that the membership on said Committee is truly

representative.

C. There shall be two Craft Operations Committees,

one for the General Construction Trades and one for the

Mechanical/Electrical Trades.

1. The Craft Operations Committees will have as

duties assigned to them, the classification of applicants,

the establishment of training programs and such other

responsibilities as may be assigned by the Administra-

tion Committee.

A90

2. Representation on the Craft Operations Com-

mittees shall be as follows:

a. General Construction Trades, Craft Opera-

tions Committee:

Two (2) representatives from Category A

party who are General Contractors.

Two (2) representatives from Category B

party who are members of the General Con-

struction Trades.

Two (2) representatives of the Category D

party.

b. Mechanical/Electrical Trades, Craft Opera-

tions Committee:

Two (2) representatives from Category A

party who are contractors in any of the

Mechanical Trades.

Two (2) representatives of the Category B

party who are members of the Mechanical

Trades.

Two (2) representatives of the Category D

party.

3. At least one of the representatives selected by

the Category A party to the Craft Operations Com-

mittees shall be a minority contractor.

*

5. Representatives on the Craft Operations Com-

mittee from each category of parties may be rotated, at

the discretion of the respective parties.

6. A quorum for the transaction of business by

the Craft Operations Committees shall consist of at

least three (3) members thereof present, which three (3)

members shall include at least one (1) representative

from each of the three categories of parties listed in

subsection C. 2. of this section. Once a quorum has been

established, each represented category of parties shall be

permitted to cast the number of votes equal to their

number of representatives on the Craft Operations Com-

mittee without regard to the number of representatives

present from each category of parties. A majority of

votes so cast shall be necessary for the taking of action

by the Craft Operations Committee.

7. Each Craft Operations Committee shall adopt

their own by-laws, which by-laws will not be inconsistent

with provisions of this Agreement.

8. Each Craft Operations Committee shall pre-

scribe fair and equitable methods for the selection of

members and alternates, so as to insure that the mem-

bers of said Committee are truly representative.

9. The Category C party shall have the right to

attend and speak at all special and general meetings and

executive sessions of the Craft Operations Committees,

but shall not have any voting privileges.

10. The terms of the representatives to each

Craft Operations Committee shall be for two year

A92

D. Notice of all meetings and sessions of the Ad-

ministration Committee and the Craft Operations Com-

mittees shall be sent to the Category C party.

1

7. The Regional Council may appeal any decision

of the Category C party which is contrary to its recom-

mendations to the Contract Enforcement Committee

established in the Ordinance.

8. The Regional Council may establish a non-

profit corporation to secure funds for the monitoring of

this Agreement.

Section 7. CLASSIFICATION AND TRAINING

A. To facilitate the implementation of the desired

goals of this Agreement, Category A and B parties

agree to the following classifications of qualifiable appli-

cants, which shall hereinafter apply to all tradesmen,

minority and non-minority.

1. Journeyman.

a. An applicant who is licensed by the State

of Connecticut to perform the functions of a licensed

craft included in this Agreement.

b. An applicant who:

1. has in fact functioned as a journey-

man in a craft included in this Agreement and submits

evidence of such to the Craft Operations Committee,

regardless of union membership or nonmembership; or,

2. meets the minimum qualifications of

the journeyman listed on the active rolls of a union with

jurisdiction covering a craft included in the Agreement;

3. and, has demonstrated journeymen

skill during a probationary period on the job as deter-

mined by the Craft Operations Committee, but not to

exceed six (6) months;

4. and is licensed where required by law.

A94

2. Advanced Trainee.

All applicants who are not classified as journey-

men, who have had some construction work experience

in the particular field involved, or its equivalent, and

who, in the judgment of the Craft Operations Com-

mittee, require one year or less of job related training: to

qualify as journeymen - or to obtain a license for those

trades which require a license, but who do not meet the

requirements or do not seek admission to Apprentice-

ship Programs, shall be classified as Advanced Trainees.

Advanced trainees shall be placed in job related training

programs in accordance with the goals for minority or

female employment outlined in Section 5 above.

3. Trainee.

All applicants who do not possess the qualifica-

tions for classification as journeymen, advanced trainees

or apprentices shall be classified by the Craft Operations

Committee as Trainees. No Craft Operations Committee

shall classify a minority or female applicant as a trainee

without the express consent of the Joint Apprenticeship

Committee, unless that craft, as determined by the

determined to be qualified. Employment of minority or

female applicants in the Apprenticeship Programs for

the designated trades shall count toward fulfillment of

the goals for minority or female employment for each

calendar year as set forth in Section 5 of this Agree-

ment.

5. Pre-Apprentice.

All applicants who meet the age requirement for

Apprenticeship programs and desire to become appren-

tices, but who do not meet the other valid, established

| qualifications for Apprenticeship programs, shall classify

as pre-apprentice.

B. Guidelines for Trainee and Apprentice

Classifications.

1. All applicants classified as advanced trainees

will be advanced to journeymen status as soon as possi-

ble but may remain in a training status for a maximum

of one year. Training will include on the job training as

‘an employee of Category A party to this Agreement and

such related instructions as may be required in order to

qualify as a journeyman. Qualifications as a journeyman

shall be determined by the Craft Operations Committee

in accordance with guidelines set forth in Paragraph A.

1. of this Section.

2. Minority or female applicants classified as

3. All apprentice applicants shall be subject to

the training and qualification guidelines set forth by

federal and state requirements for registered apprentice-

ship programs. The Joint Apprenticeship Committee

shall make the final selection of Apprentices.

4. All applicants classified as pre-apprentices,

shall be admitted to a registered apprenticeship program

upon completing training to qualify them to meet

established qualifications for Apprenticeship programs.

5. All advanced trainees, trainees and appren-

tices completing the required training programs and ful-

filling all of the requirements for journeyman status

shall be afforded the opportunity for full membership as

a journeyman by the appropriate Category B party to

this Agreement.

C. Employment as Journeyman.

When any person who is an applicant is classified as

a journeyman in accordance with subsection A above, he

or she shall be referred to an applicable Category A

party for employment in accordance with the goals for

minority or female employment outlined in Section 5

above; he or she shall be afforded the opportunity for

full union membership as a journeyman by the appropri-

ate Category B party to this Agreement; and he or she

shall receive wages and fringe benefits applicable to

journeymen as provided in applicable collective bargain-

ing agreements.

D. Employment as Trainee.

When any applicant is classified as a trainee, such

person shall be placed in job related training programs

in accordance with his or her aptitude and construction

oh ene in am e uu ae i cm

Committee.

A97

*

The trainee’s classification and wages shall conform

, to the standards of the Joint Apprenticeship Council for

the respective trade.

E. The above classifications have been adopted ‘for

the purpose of screening applicants and facilitating their

advancement. No organization will be required to accept

applicants who do not satisfy the qualifications neces-

sary to perform the work for which they are employed.

No organization will be required to change existing bona

fide classifications.

Section 8. UTILIZATION OF MINORITY

8 GROUP SUBCONTRACTORS

A. Minority and/or female persons who are general

contractors or subcontractors regularly doing business

in the Hartford Labor Market area shall be assisted

wherever possible to bid and be awarded contracts in

their respective trades or business.

B. In order to meet this requirement, each Category

A party shall whenever possible:

ä 1. inform associations and consortia of minority

or female contractors of known bid specifications well in

advance of the chens date for bid submissions;

2. actively recruit consortia of minority or

female contractors to bid on subcontracts;

3. limit the size and dollar volume of sub-

contracts to the extent feasible and otherwise arrange

solicitations, time for preparation of bids, specifications

and completion dates in order to make it possible for

minority or female persons who are contractors or

consortia of minority or female contractors to bid and

compete for said contracts;

A98

4. provide whatever other counseling or assist-

ance may be necessary during the preparatory stages

and the actual performance of such subcontracts.

C. U receipt of a statement from a minority or

female subcontractor that he or she is unable to obtain

requisite bonding or insurance through normal channels,

the Category A party shall refer the subcontractor to

the Administration Committee. The Committee is auth-

Section 9. EMPLOYMENT OF MINORITY GROUP

PERSONS AS SUPERVISORY

AND MANAGEMENT PERSONNEL

A. Each Category A party shall insofar as possible,

in Section 5 of this Agreement. For the purpose of

ting this Section, each Category A party shall

submit to the Administration Committee and the

gory C party an affirmative action plan with its

BES

*

*

Section 10. REPORTS AND RECORD-KEEPING

A. Each Category A party agrees to maintain writ-

ten monthly reports demonstrating compliance with the

requirements of Sections 5, 8 and 9 above. These reports

shall be submitted to any Category B, Category C or

Category D party on request.

B. Each Category A party shall make available to

the Administration Coordinator the applications of those

minority persons vho have registered for employment.

For each registration, the application should include:

1. Name.

4. Craft in which applicant seeks to be register-

.

5. Whether the applicant was hired or his appli-

cation furwarded for registration. These records shall be

available for inspection by any Category B, C or D

A100

N

D. The Administration Committee may order any or

all informa don found necessary or desirable to aid in the

implements. ion of this Agreement. Such records as

by this Section shall be kept confidential upon

by any party for good cause. Any disputes con-

the production or restriction of records shall be

Section 11. COORDINATION

A. This Agreement shall be monitored by the

Administration Committee. When the Administration

Committee establishes a nonprofit corporation to imple-

ment this program, as indicated in Paragraph A. 4. d.,

Section 6 of this Agreement, the Administration Com-

work. He or she shall serve for a term of two (2) years.

Al0l

de

7.

1

C. In case any Committee created in this Agreement

is unable or unwilling to meet, due to lack of a quorum

or other cause, the Administration Coordinator shall

assume the duties of said Committee. If the Administra-

tion Coordinator is unable or unwilling to assume said

duties, the Category C party shall have the power to

appoint a new Coordinator. Nothing herein shall prohibit

the Administration Coordinator from continuing to

consult with any Committee members who are willing to

participate.

Section 12. COMPLIANCE

A. Each party who is a signatory to this Agreement

shall make the employment and training provisions of

this Agreement an integral part of all contracts and sub-

contractors it writes for construction work in the area

covered by this Agreement.

B. The rates of wages and fringes for all work per-

formed for the City of Hartford shall be as prescribed

by the State of Connecticut Labor Department and/or

U.S. Department of Labor as the prevailing wage rates

for that area. These wage rates are to be revised period-

ically so as to remain current with all revisions issued

by the Labor Department. For purposes of this Section,

any tax abatement project which falls within the pur-

view of the Ordinance shall be considered a City project

subject to the prevailing wage rate requirement.

C. The failure of any Category A or B party to

comply with the terms of this Agreement shall consti-

tute a breach of contract unless the Category A or B

party shall have taken all the steps indicated in the

appropriate sections above and shall have been unable

to fulfill its obligations after making every good faith

effort.

D. The Ordinance is incorporated herein as if fully

stated.

A102

Section 13. MISCELLANEOUS PROVISIONS

Nothing in this Agreement shall interfere with the

pension plans of any organization. Nothing herein shall

preclude pre-job conferences, although all parties are

encouraged to extend an invitation to interested minor-

ity and female representatives to attend such confer-

ences. It is not the intent of this Agreement to interfere

with any bona fide seniority system which does not

perpetuate past discrimination.

Section 14. APPEAL RIGHTS

Any party to this Agreement, including the minority

and female members on any committee established

herein, who is aggrieved by any decision of the Category

C party, may appeal to the Contract Enforcement Com-

mittee established by the ordinance in writing within 15

days of the making of the decision. The Contract En-

forcement Committee shall provide such party with a

hearing and issue a decision within 30 days of the

receipt of the written appeal. During the pendency of

such an appeal, the decision of the Category C party

shall remain in full force and effect, unless the Contract

Enforcement Committee issues a stay of the decision by

unanimous vote.

Section 15. DURATION AND MODIFICATION

A. This Agreement shall last for a period of five (5)

years, from , 1975

1980, and thereafter shall be automatically reviewed

from year to year, unless written notice of intention to

1

B. Not more than ninety (90) nor less than sixty (60)

days prior to each annual anniversary date, each party

h the other parties, in writing, of any

changes in the list of organizations it represents.

C. At least ninety (90) days prior to the end of the

first, and each succeeding year of the Agreement, follow-

ing the first five (5) year period, the parties shall review

the effectiveness of the Plan and the adequacy of the

goals set forth herein.

D. This Agreement may be amended or added to at

any time by the written consent of all parties hereto.

Section 16. AGREEMENT QUALIFICATIONS

It is not the intent of any of the parties hereto to

violate any laws or rulings or regulations of any govern-

ment authority or agency having jurisdiction of the

subject matter of this Agreement, an 1 the parties hereto

agree that, in the event any provision of this Agreement

is held to be unlawful or void by any tribunal having

the right to so hold, the remainder of this Agreement

shall remain in full force and effect, unless the parts so

found to be void are wholly inseparable from the remain-

ing portions of the Agreement.

A104

7

CITY OF HARTFORD

INTERDEPARTMENTAL MEMORANDUM

TO: COUNCILMAN RAYMOND MONTEIRO,

CHAIRMAN

COURT OF COMMON COUNCIL

CONTRACT ENFORCEMENT COMMITTEE

FROM: ARTHUR L. JOHNSON, HUMAN

RELATIONS

SUBJECT: “GREATER HARTFORD PLAN” /IBEW

LOCAL #35

DATE: FEBRUARY 28, 1977

COPY TO:

The International Brotherhood of Electrical Workers

(IBEW) Local #35 was provisionally certified to be in

compliance with Section 2-176:8 of the Municipal Code

and the “Greater Hartford Plan” as per their signed

affidavit of October 8, 1975. Paragraph 4 of that affi-

davit reads as follows:

“The Local hereby agrees to comply with the

contractual responsibilities regarding the man-

ning of city of Hartford projects.

The manning responsibilities of City of Hartford pro-

jects are outlined in Sec. 5D of the Greater Hartford

Plan! which reads in part as follows:

The Category C party (Human Relations Com-

mission)...shall set minimum participatory goals

on City projects for minority personnel,

including women. Such goals shall be at least

fifteen (15%) percent of the daily manhours

worked by each trade on each project...

A105

I have attached a staff report outlining a February 8,

1977 meeting with IBEW Local #35 officials as to the

rotation list they are now utilizing for referral of work-

ers to contractors performing construction work. It is

apparent that the utilitization of this list by IBEW

Local #35 for the referral of minority workers will be

directly in conflict with the minority manning provisions

for City of Hartford projects as outlined above.

I believe the above referral procedures of Local #35 to

be in direct conflict with their compliance to the ‘‘Great-

er Hartford Plan“ and recommend that the Contract

Enforcement Committee of the Court of Common Coun-

cil meet to consider the continued eligibility for IBEW

Local #35 to participate upon City of Hartford projects

pursuant to Section 2-176:8 of the Code.

A106

INTERDEPARTMENTAL MEMORANDUM

TO: ARTHUR L. JOHNSON

FROM: RONALD FLETCHER

SUBJECT: IBEW LOCAL #35/GREATER

HARTFORD PLAN

DATE: FEBRUARY 24, 1977

COPY TO:

I have attached correspondence from MAFCO Electric

Company dated 1/28/77 and Associated Electric/Pep’s

Electric (a Joint Venture) dated 1/19/77. As you will

note, both letters point out that each contractor believes

that their referral agreements with IBEW Local #35 for

electrical workers preempts their utilizing other sources

to comply with the minority manning requirements for

City projects.

In order to clarify this issue, Atty. Barry Zitser and

myself met on February 8, 1977 with IBEW #365 offic-

ials (Robert Murray and Robert Murtha) and their at-

torney (William Zeman) to review the above as it relates

to their participation in the Greater Hartford Plan as

per their signed affidavit of October 8, 1975.

I

This text is long and has been trimmed here. Open the source document for the complete record.