The opinion of the court was delivered by: Poos, Chief Judge.
This is an action for declaratory judgment brought by the
Southern Illinois Builders Association and Southern Illinois
Contractors Association (hereinafter referred to as S.I.B.A.
and S.I.C.A. respectively). Jurisdiction is based upon the
Labor Management Relations Act of 1947, Section 301 (29 U.S.C.
Sec. 185), and Title VII of the Equal Employment Opportunities
Act of 1964 (42 U.S.C. § 2000e), and 28 U.S.C. § 1331.
All parties have stipulated as to the jurisdiction.
S.I.B.A. and S.I.C.A. are not-for-profit corporations duly
organized and existing under the laws of the State of
Illinois. S.I.B.A. is an organization whose members are
contractors engaged in the building and construction industry
in southern Illinois, including Madison and St. Clair
Counties. The members of S.I.C.A. are also members of
S.I.B.A., and are engaged in highway construction and
reconstruction in southern Illinois, including Madison and St.
The plaintiffs, (S.I.B.A. and S.I.C.A.) are employers
engaged in commerce and in an industry affecting commerce
within the meaning of 29 U.S.C. § 152 and 185. The
S.I.B.A. and S.I.C.A. also represent their members, who are
employer contractors, and bargain for employer contractors who
are also employers engaged in an industry affecting commerce
within the meaning of 42 U.S.C. § 2000e et seq. S.I.B.A.
and S.I.C.A. have been, in the past and at the present time
are representing their member employer contractors for all
purposes with respect to all equal opportunity laws, orders
Plaintiff S.I.B.A., on behalf of its members who have
assigned their bargaining rights to it, including all of its
members who constitute the membership of S.I.C.A., bargained
and entered into a labor agreement with the International
Association of Bridge, Structural and Ornamental Ironworkers,
Local No. 392, AFL-CIO (hereinafter Ironworkers Local 392), on
or about August 1, 1969.
Plaintiff, S.I.C.A., on behalf of its members who have
assigned their bargaining rights to it, bargained and entered
into labor agreements with the Operative Plasterers and Cement
Masons International Associations, Local No. 90, (hereinafter
Cement Masons Local 90), on or about August 1, 1969, and the
International Union of Operating Engineers Local 520) on or
about March 23, 1970; all of the hereinabove labor unions are
labor organizations within the meaning of 29 U.S.C. § 152
and Sec. 185, and 42 U.S.C. § 2000e et seq.
Metro-East Labor Council, Inc. is an organization composed
of representatives of the black community in Madison and St.
Clair Counties and has represented that community in matters
involving equal employment opportunities in the construction
Richard B. Ogilvie, Governor
William F. Cellini, Director, Department of
Public Works and Buildings,
Richard H. Golterman, Chief Highway Engineer,
Division of Highways, Department of Public
Works and Buildings,
Robert E. Kronst, District Engineer, District No.
8, Division of Highways, Department of
Buildings & Public Works.
The United States, upon motion duly filed, over the
objection of the defendant unions, was granted leave to
intervene in this action pursuant to Rule 24, Federal Rules of
In July 1968, the United States Department of Transportation
instituted a freeze on the letting of new contracts for
federally assisted highway construction in Madison and St.
Clair Counties because of high costs and a determination that
equal employment opportunities did not exist for blacks, as
was required by Executive Order 11246.
The following statistics adequately portray the inequality
of minority representation in the highway construction
industry with respect to the defendant unions.
In December 1968, Operating Engineers Local 520 had
approximately 1124 members in construction work, none of whom
were black. In October 1969, Local 520 had 1738 members, of
whom 18 were black. Local 520 has no training program for
members. However, unskilled persons frequently began working
in the oiler classification and received informal on-the-job
training leading to qualification for employment as operating
engineers. There is nothing in the record to suggest that at
least as of December 1968, blacks had ever received informal
on-the-job training with respect to construction work through
In December 1968, Cement Masons Local 90 had approximately
278 members of whom one was black. The Local 90 apprenticeship
program at that time had 14 indentured apprentices, all of
whom were white, and no black had ever completed the
apprenticeship program. Local 90 began its apprenticeship
program in 1964. Prior to that time unskilled persons entered
the trade by receiving informal on-the-job training. In
October 1969, Local 90 had 280 members of whom three were
In December 1968, Ironworkers Local 392 had approximately
480 journeyman members, all of whom were white. The Local 392
apprenticeship program had at that time approximately 23
apprentices, all of whom were white, and no black had ever
completed the apprenticeship program. In November 1969 Local
392 had 509 members, of whom three were black.
Subsequent to the imposition of the freeze, federal
officials from the Department of Transportation, Labor and
Justice, along with officials from the State of Illinois,
representatives of the S.I.B.A., representatives from six
labor organizations having jurisdiction in the said two-county
area, (The Teamsters, Laborers, Carpenters, Cement Masons,
Ironworkers, and Operating Engineers), and representatives of
the black community in the two-county area met on numerous
occasions for the purpose of resolving the problems by way of
an affirmative action plan relating to equal employment
opportunities for minority group persons seeking thereby to
alleviate the freeze.
The State of Illinois became active as a party to the
negotiations sometime after August 1968. At that time the
Congress of the United States passed the Federal Aid Highway
Act which requires States which receive federal funds for
highway construction to certify to the Federal Government that
there exist training programs in the trades involved in
highway construction sufficient to provide equal employment
opportunity for minority groups. As a result of this mandate
by Congress, and at the request of the parties, the State of
Illinois began assisting in the development of a training
program so that federal highway construction
in the two-county area could resume.
In drafting a plan to satisfy federal law, the State
received information from S.I.B.A., the State agencies,
Federal agencies, and the black community. The unions were
requested to give information relating to the statistics by
race of their membership and apprenticeship classes, but
refused to cooperate.
The United States filed suits against each of the defendant
unions under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. in the United States District Court for
the Eastern District of Illinois, alleging a pattern and
practice of racial discrimination, including inter alia an
allegation that the defendants' unions failed and refused to
take reasonable and adequate steps to eliminate the effects of
racially discriminatory policies and practices. The United
States sought relief enjoining the unions from hindering or
discouraging the contractors from meeting their contractual
obligations imposed on the contractors under Executive Order
11246. The suits against the Operators and Cement Masons were
filed on January 17, 1969, Civil Nos. 69-9 and 69-11. The suit
against the Ironworkers was filed on June 2, 1970, Civil No.
70-78. As a result of this action, consent decrees were
entered into by each of the respective parties in the United
States District Court for the Eastern District of Illinois.
In January, 1970, a first draft of "An Agreement to
Facilitate Equal Employment Opportunities in State Highway
Construction in Madison and St. Clair Counties", (hereinafter
Ogilvie Plan) was presented to all interested parties by the
State of Illinois. Suggestions were made by the parties and
changes were made. Prior to the execution of the Ogilvie Plan,
the unions refused to sign the plan. The Plan was then
modified to provide for two-party (S.I.B.A. and Metro-East)
agreement, with an addendum for unions who wished to
participate in the Plan. The S.I.B.A. and the Metro-East Labor
Council signed the agreement with his signature on June 3,
1970. In addition, Teamster Locals 525 and 729 signed the
addendum to the Plan, thereby agreeing with the provisions of
After the execution of the Ogilvie Plan by the S.I.B.A. and
the Metro-East Labor Council, the State of Illinois highway
construction and reconstruction and all federally assisted
highway construction resumed in the two-county area by order
of the Department of Transportation. Following the resumption
of work, the State of Illinois incorporated the Ogilvie Plan