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SOUTHERN ILLINOIS BUILDERS ASSOCIATION v. OGILVIE

May 7, 1971

SOUTHERN ILLINOIS BUILDERS ASSOCIATION, A CORPORATION, ET AL., PLAINTIFFS,
v.
RICHARD B. OGILVIE, GOVERNOR OF ILLINOIS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Poos, Chief Judge.

  OPINION

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. Clair Counties.

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 and regulations.

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 industry.

The plaintiffs named the Ironworkers Local 392, Cement Masons Local 90, Operating Engineers Local 520, the Metro-East Labor Council, Inc., as defendants, in addition to the following State officials:

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 Civil Procedure.

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 Local 520.

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 black.

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 the Plan.

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 by ...


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