# Appendix — Local Union No. 35 of the International Brotherhood of Electrical Workers v. City of Hartford > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0835%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1981 - **Citation:** 453 U.S. 913 ## Text 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. A4 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 Al2 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 Al4 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. Ht 8 8 i 11 1 0 It fal 15 oT ep 1145 Het 0 0 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 Hi on 3 aly, ien. 10 aust nail giant: tility Hi He nn 1123 i eee 11375 Sts iG 1 e He 2711 ll B temporary remedies. 1412215 ti 10 Bal ul 1 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 certi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0835%3A3. Public record. Not legal advice.