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November 8, 1974

Albert E. Percy et al., Plaintiffs
Peter J. Brennan, Secretary of Labor, United States Department of Labor, et al., Defendants

Lasker, D.J.

The opinion of the court was delivered by: LASKER


This case, brought on behalf of minority persons seeking training and employment in the New York construction industry, challenges the affirmative action plan, ("the New York Plan") which currently governs Federal and State assisted construction projects in New York City. The primary claim raised by the complaint is that the New York Plan fails to guarantee equal protection and the right to equal employment opportunities as required by the United States Constitution, 42 U.S.C. § 1981 and Executive Order No. 11246. At issue also is the validity of federal and state attempts to pre-empt local government efforts to impose affirmative action requirements which are more rigorous than those contained in the New York Plan, although our decision in City v. Diamond, 379 F. Supp. 503 (S.D.N.Y. 1974) has at least partially disposed of this aspect of the case.

 The plaintiffs are Albert Percy, Manuel R. Mejia, and John Mercado, who move to represent a class of fellow black and Spanish-surnamed individuals seeking employment in the construction industry, and two organizations, Fight Back and National Association for the Advancement of Colored People (NAACP). Defendants are the Secretary of Labor, the United States Department of Labor, the Assistant Secretary of Labor for Employment Standards, the Director of the Office of Federal Contract Compliance and the Office of Federal Contract Compliance (federal defendants); the Governor of the State of New York, the Industrial Commissioner of the State of New York and the New York State Department of Labor (state defendants); and the Building and Construction Trades Council of Greater New York, the New York Building and Construction Industry Board of Urban Affairs Fund (Fund) and the New York Plan for Training, Inc. (private defendants).

 Plaintiffs seek declaratory relief and an injunction ordering the federal and state officials to abandon the New York Plan, to withdraw memoranda which prohibit local governments from imposing any equal employment opportunity requirements which have not been approved by federal and state Departments of Labor, and to promulgate affirmative action goals for public construction sites which comport with the requirements of the United States Constitution, 42 U.S.C. § 1981 and Executive Order No. 11246. Plaintiffs move for a preliminary injunction, partial summary judgment and a class action determination. *fn1" All defendants move to dismiss. We deal initially with those facts and legal challenges going to the validity of the New York Plan, and then consider the remaining issues.

 I. The New York Plan


 The New York Plan was established in 1970 to comply with Executive Order No. 11246 (Order) which imposed broad equal employment obligations on federal and federally-assisted contractors. Part I of the order requires that federally-funded contracts include the provision that:

"The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship." Order at § 202.

 The contractor must also undertake to "comply with all provisions of Executive Order No. 11246 . . . and of the rules, regulations, and relevant orders of the Secretary of Labor." Order at § 202.

 The Secretary of Labor is responsible for enforcement of the compliance provisions of the order, contained in Parts II and III. Order at § 201. The Director of the Office of Federal Contract Compliance is authorized to implement the equal employment policies of the Secretary of Labor. (Order No. 15-68 of the Secretary of Labor, 33 Fed. Reg. 2600 (Sept. 4, 1968).) Compliance with the order is obtained through adherence either to an "imposed plan" or a "hometown plan".

 An imposed plan, as the name indicates, is a plan which is imposed by the Secretary of Labor, establishing yearly minority employment goals on a trade-by-trade basis, with increasing minority participation each year. Responsibility for compliance rests with individual contractors. A hometown plan typically combines the efforts of local contractors and contractors' associations, building trades unions and minority organizations, and results in the formulation of a plan for voluntary compliance with the order. Under a hometown plan, minority participation obligations fall on the trade as a whole rather than on any individual contractor, and can be satisfied by minority employment or training on any work performed by the trade, whether federally-funded or private. The hometown plan approach holds the unions rather than the individual contractors responsible for complying with the affirmative action requirements. An administrative committee assigns "fair share goals" to individual contractors. A hometown plan must be submitted to the Office of Federal Contract Compliance for approval and, if approved, is incorporated by reference into Part I of the Federal Equal Employment Opportunity Bid Conditions (Federal Bid Conditions) used for all non-exempt federally-assisted construction projects in the geographical area of the hometown plan.

 For any trades not participating in the hometown plan, mandatory affirmative action requirements are set forth in Part II of the Federal Bid Conditions. Responsibility for compliance with these requirements is imposed directly on the individual contractor, rather than on the non-participating trade as a whole.

 Part IV of the Federal Bid Conditions provides that the failure of a contractor to make good faith efforts to meet his fair share obligations under a hometown plan can result in his being placed under Part II of the conditions, as well as possible imposition of the sanctions authorized by Section 209 of Executive Order No. 11246.

 The federally approved hometown plan in New York City, which is challenged here, is the New York Plan. It was submitted to the federal government for approval in 1970 by the Board of Urban Affairs, an entity created by the New York Building and Construction Trades Council, which, in turn, represents labor unions and two contractor associations (the Building Trades Employers Association and the General Contractors Association). The New York Plan became effective after approval respectively by the Mayor (Executive Order #31), the Governor (Executive Order #43) and, in August 1971, by the Office of Federal Contract Compliance. The Plan has been extended from time to time and is presently scheduled to expire at the end of December, 1974.

 The New York Plan (Amended Complaint, Exhibit A) (Plan) originally specified that "The number of Trainees the program shall provide for within the first year shall be set at 800 maximum." (Plan, Article IV, of § 2) Goals were established on a craft-to-craft basis, and qualified graduates of the program were to be recommended to the appropriate union "for consideration for membership." (Plan, Article II, § 2).

 The Plan expired by its terms on July 1, 1972, but, as indicated already, it has been extended from time to time. The extended plan differs from the original in providing for the training of 1,000 rather than 800 minority workers. *fn2"


 The grounds of the motions to dismiss include: (1) the federal defendants' claim that the plaintiffs have failed to exhaust federal administrative remedies; (2) the state and private defendants' claim that the plaintiffs have failed to exhaust federal, state and city administrative remedies; (3) the federal defendants' assertion that the individual plaintiffs lack standing; (4) the private defendants' claim that Fight Back and NAACP lack standing; (5) the state defendants' claim that the State Department of Labor is immune from suit; and (6) their assertion that the complaint fails to state a cause of action against the Governor and the Industrial Commissioner. *fn3"

 1. Exhaustion of Federal Administrative Remedies Under 28 U.S.C. § 1331.

 The federal defendants move to dismiss for failure by the plaintiffs to submit their complaint to the Equal Employment Opportunity Commission and the Director of the Office of Federal Contract Compliance. Their motion is denied because these administrative procedures cannot afford plaintiffs the relief they request.

 Although Congress established an Equal Employment Opportunity Commission to hear cases involving employment discrimination, the jurisdiction of the Commission is limited to complaints which allege "that an employer, employment agency, labor organization or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, has engaged in an unlawful employment practice." 42 U.S.C. § 2000e-4. Sections 2000e-2 and 2000e-3, which define "unlawful employment practices," do not include the promulgation of an unconstitutional affirmative action plan. *fn4"

 The cases cited by the federal defendants do not support their claim, for while the court in Hadnott v. Laird, 149 U.S. App. D.C. 358, 463 F.2d 304, 305 (1972) dismissed the complaint for the plaintiffs' failure to appear first before the Equal Employment Opportunity Commission, the claim there essentially alleged that individual employers were failing to fulfill their contractual commitment to non-discrimination. Similarly, in Freeman v. Shultz, 152 U.S. App. D.C. 16, 468 F.2d 120 (1972), plaintiffs sought to enjoin the award of contracts to employers who had discriminated on the basis of race. Yet here, as plaintiffs note, the complaint is not one under Title VII; plaintiffs here are not asking that the sanctions of Executive Order No. 11246 be imposed upon third parties who fail to fulfill contract obligations but that the federal defendants themselves be enjoined. (Plaintiffs' Memorandum at p. 25). And in a case similar to the one here, where contractors challenged the constitutionality of an "imposed plan" (the Philadelphia Plan) the district court stated, "It is apparent that the legal issue that the plaintiffs here presented is fit for judicial resolution." No indication was made of a previous determination by the Equal Employment Opportunity Commission, which suggests that no such appearance was found to be required. Contractors Ass'n of Eastern Pa. v. Sec'y of Labor, 311 F. Supp. 1002, 1007 (E.D. Penn. 1970), aff'd, 442 F.2d 159 (3d Cir.), cert. denied, 404 U.S. 854, 92 S. Ct. 98, 30 L. Ed. 2d 95 (1971).

 Neither can plaintiffs seek relief from the Director of the Office of Federal Contract Compliance. *fn5" Regulations promulgated by the Office give the Director power to ensure compliance with Executive Order No. 11246, but however broad the scope of those regulations, a complainant may only challenge the alleged discrimination of a "prime contractor or subcontractor", (41 C.F.R. § 1.23(a)), not the unconstitutionality of the contract's equal employment opportunity clause itself.

 2. Exhaustion of Federal Administrative Remedies Under 42 U.S.C. § 1981.

 The state defendants also assert that plaintiffs have adequate remedies under federal statutes.

 As noted above, Title VII of the Civil Rights Act of 1964, does not prohibit discriminatory acts by government officials except where the government is the employer. Nor does it proscribe the activities of government officials or private entities which operate to foster discrimination by employers or unions.

 But even if an action under Title VII were appropriate, Congress specifically rejected the proposition that resort to the remedies of Title VII should be a prerequisite to anti-discrimination suits under 42 U.S.C. § 1981. The House and Senate Committees that reported the bills that became the 1972 amendments to Title VII disavowed any intent to restrict rights under 42 U.S.C. §§ 1981 and 1983. See H.R. Rep. No. 92-238, 92d Cong., 1st Sess. 18-19 (1971); Sen.Rep. 92-415, 92d Cong., 1st Sess. 24 (1971). The House Report states:

"In establishing the applicability of Title VII to State and local employees, the Committee wishes to emphasize that the individual's right to file a civil action in his own behalf, pursuant to . . . 42 U.S.C. §§ 1981 and 1983, is in no way affected . . . two recent court decisions, Young v. International Telephone and Telegraph Co., 438 F.2d 757 (3d Cir. 1971) and Sanders v. Dobbs Houses, 431 F.2d 1097 (5th Cir. 1970), have affirmed this Committee's belief that the remedies available to the individual under Title VII are co-extensive with the individual's right to sue under . . . 42 U.S.C. § 1981, and that the two procedures augment each other and are not mutually exclusive. The bill, ...

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