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EXPERT ELEC., INC. v. LEVINE

July 24, 1975

EXPERT ELECTRIC, INC., et al., Plaintiffs,
v.
Louis L. LEVINE, Individually and as Industrial Commissioner of the State of New York, Defendant



The opinion of the court was delivered by: CARTER

ROBERT L. CARTER, District Judge.

 Plaintiffs, members of the United Construction Contractors Association, Inc. ("United"), by order to show cause, have moved to enjoin defendant Industrial Commissioner of New York from cancelling the registration of apprentice electricians employed by plaintiffs and from disqualifying each plaintiff from employing registered apprentice electricians for a three-year period. A hearing was held on May 30, 1975, at which time the plaintiffs were afforded the opportunity to present evidentiary proof of their factual contentions but declined to do so preferring to stand on their position that their constitutional rights had been violated per se by plaintiffs being disqualified from participation in the state apprentice program without being found personally to have violated the requirements of the state Department of Labor. Defendant has moved pursuant to Rule 12(b)(1) and (6), F.R.Civ.P., to dismiss the action.

 Background Facts

 Plaintiffs are electrical contractors and members of United, a New York membership corporation which conducts collective bargaining negotiations and enters into collective bargaining agreements on behalf of its members with Local 363, International Brotherhood of Teamsters ("Local 363"). The local is comprised of journeymen and apprentice electricians.

 United and Local 363 formed the Joint Apprenticeship Committee ("JAC") to sponsor an apprenticeship training program, see Article 23 (Apprenticeship Training) of New York's Labor Law, and filed a Master Agreement, pursuant to §§ 811(1)(d) and 220 (3-e) of the Labor Law, *fn1" with the State Department of Labor on or about December 1, 1971. Under the terms of the Master Agreement and Labor Law §§ 811, 812 and 815 (McKinney's 1965), the registered apprentices were to receive on-the-job training in the processes of the electrician's trade according to a schedule of work processes contained in the Master Agreement. The apprentices were also to receive 144 hours of related and supplemental classroom instruction. Master Agreement, Appendix B; Labor Law, § 815(3).

 On June 17, 1974, defendant Industrial commissioner, pursuant to 12 N.Y.C.R.R. 601.7, served a notice of proposed deregistration of the apprenticeship agreement and program upon JAC, Local 363, and United. The notice set forth certain allegations by the Department of Labor, summarized by the Commissioner as follows:

 
"1. The Joint Apprenticeship Committee sponsor allegedly failed to complete the training of apprentices as provided under the standards contained in Article 23 of the Labor Law and under the terms and conditions of the Master Agreement entered into by the Joint Apprenticeship Committee.
 
"2. Some of the employers who were participants in the J.A.C. allegedly failed to pay prevailing wages or used apprentices in excess of the proper ratio for electricians in the locality.
 
"3. That long after the violations and shortcomings of the program were originally made known to the sponsor in June of 1973, the sponsor allegedly failed to correct the violations and to comply with the rules and regulations in their own Master Agreement. These allegations resulted from a survey initiated by the Department in March of 1974, which purported to show that the apprentices were not receiving proper related instruction and that the participating employers were still using excessive apprentices."
 
Order and Determination of the Industrial Commissioner, at 1-2.

 Upon request of JAC, United and Local 363, five hearings were thereafter held, and the three respondents were all represented by separate counsel at these hearings. The recommendations of the hearing panel were reviewed and subsequently sustained by the Commissioner, who found:

 
"1. From the inception of the program in 1961 until 1973, not one of the 574 apprentices achieved completion of the program or certifiable journeyman status.
 
"2. The sponsor not only failed to meet its obligations to provide related classroom instruction but by its own actions made it impossible for any apprentice to obtain the necessary 144 hours of related classroom instruction.
 
"3. The sponsor in a Joint Apprenticeship Committee consists of the union and each contractor having a collective bargaining agreement with said union. Therefore the act of each participating contractor in an ...

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