PERCY v. BRENNAN Cite as
PERCY v. BRENNAN Cite as 384 F.Supp. 800 (1974) 803 natory practices, then greater efforts Robert G. Benisch, Berman, Paley, were mandated by Constitution and fed- Goldstein & Berman, Robert J. Fink, eral law, and until more rigorous plan French, Fink, Markle & McCallion, New was imposed, rights of minorities dis- York City, for the New York Plan for criminated against were being violated. Training, Inc. etc. 20. Civil Rights €:=>46 Where evidentiary hearing was· necessary to establish facts which were critical to determination of affirmative action plan's constitutional validity, preliminary injunction of operation of plan was denied. Executive Order No. 11246, 42 U.S.C.A. § 2000e note. 21. Administrative Law and Procedure €:=>408 Civil Rights €:=>31 Letter from Department of Labor, establishing guidelines for imposition of affirmative action plans on local construction industry was invalid because it was not published in accordance with requirements of Administrative Procedure Act, and because it was unauthorized attempt to preempt local equal employment opportunity efforts. Executive Order No. 11246, 42 U.S.C.A. § 2000e note; 5 U.S.C.A. §§ 552, 553. 22. Administrative Law and Procedure €:=>408 Civil Rights €:=>61 Letter from New York State Industrial Commissioner establishing procedure for future approval of affirmative action plans was invalid for failure to meet constitutional and statutory publication requirements. Executive Law N.Y. § 102; Const.N.Y. art. 4, § 8. Dennis R. Yeager, Diana Greene, Isabelle Katz Pinzler, Nathaniel R. Jones, William D. Wells, New York City, for plaintiffs. Paul J. Curran, U. S. Atty., S. D .. N. Y., Steven Glassman, Asst. U. S. Atty., Louis J. Lefkowitz, Atty. Gen., Lloyd G. Milliken, Asst. Atty. Gen., New York City, for defendants. Walter H. Colleran, Doran, Colleran, O'Hara, Pollio & Dunne, P. C., New York City, for Building and Construction Trades Council of New York, etc. LASKER, District Judge. 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 Af-
804 384 FEDERAL SUPPLEMENT fairs 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.1 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 A. FACTS 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 federallyfunded 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 ter- I. Plaintiffs' motion to consolidate this case with a related one, City v. Diamond, 379 F. Supp. 503 (S.D.N.Y., 1974) is moot in light minatiori; 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 tradeby-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 submitof our having rendered a decision in that case.
