Appeal from a judgment of the United States District Court for the District of Connecticut, M. Joseph Blumenfeld, Judge, for defendants, denying declaratory and injunctive relief. Affirmed.
Before Oakes and Van Graafeiland, Circuit Judges, and Nickerson, District Judge.*fn*
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 bargaining agreement in Hartford County, five other Connecticut 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 against non-minority Union members on the basis of race and thereby violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, 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.
The events leading to the enactment of the Ordinance and Plan commenced in 1970, soon after the City experienced serious disturbances in lower income minority neighborhoods. A group of community and civil rights leaders approached Deputy Mayor Nicholas Carbone, 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 pervasive pattern of discrimination.
Carbone proceeded to bring together for negotiations the contractors, the unions, and the civil rights leaders. In September 1972, after negotiating for about one and a half years they finally agreed upon and made public an affirmative action plan providing for every good faith effort to achieve at least a fifteen percent level of minority and female employment. The plan was substantially the same as that later adopted as the Plan.
However, the agreed plan provided no method of enforcement, and no further action was taken to implement it. Indeed, only a few of the union locals subscribed to what their representatives had negotiated. In mid-1974 community and civil rights leaders again approached 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 City jobs and that he would introduce legislation to implement the agreed plan. At his request representatives of the unions and the contractors helped draft the Ordinance.
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.
The Ordinance defines "minority group persons" to include persons of Black, Puerto Rican, Spanish-American, Oriental or American Indian ethnic or racial origin and identity and women, and declares and finds, among other things, 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 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 organizations that deny or have denied equal employment opportunity to minority group persons and women.
"(c) 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.
"(d) There is a sufficient number of qualified group workers and women in the Greater Hartford Area to make such an affirmative action plan feasible and desirable."
The Ordinance requires all City construction contracts 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 encouraging 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 substantial 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 participation in their operations and have submitted an affidavit 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 percent 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.
Incorporated in each of the union's collective bargaining agreements with the contractors is a so-called "Principle Labor Agreement" negotiated by the Union with the local chapter of the National Electrical Contractors Association, Inc. That agreement makes the Union "the sole and exclusive source of referral of applicants for employment" as electrical workers with the contractor 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 chronological 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 Committee, and have been employed for at least one year of the 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.
On October 31, 1975, the Union, which had collective bargaining agreements with numerous contractors having City contracts, was certified under the Ordinance, 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 provisions 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 including 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) seventeen ...