contractors, in signing it, are duty bound by it.
Defendant unions have also raised a number of objections to
the Ogilvie Plan, based in large part upon alleged conflicts
between the provisions of the Plan, the consent decrees, and
the collective bargaining agreements between the unions and
The objections must fail, in view of the provisions in each
of the consent decrees with the United States which provide
for cooperation with the training plans such as the Ogilvie
Plan, and the provisions in two of the consent decrees, those
with the Ironworkers and the Cement Masons, which specifically
provide that trainees may be requested by contractors and
referred out of order. Nothing in either of those decrees are
in conflict with the provisions of the Ogilvie Plan. The
Operators Engineers Local 520 decree imposed upon that Local
a temporary obligation to modify its referral for employment
procedures to the extent of creating a totally separate and
distinct supplemental referral list for trainees in the
limited geographical area of East St. Louis, Illinois, and its
immediate environs. The requirement that this supplemental
list be maintained expired under the terms of the decree on
September 1, 1970. Since that time, even though Local 520 has
continued to maintain a supplemental list, there is no
requirement in the decree which is inconsistent with the
provisions of the Ogilvie Plan. The Operators' decree was
fashioned before the Ogilvie Plan was developed, and as a
result is less specific than the other decree, but it does
provide for cooperation with any such training program,
including on-the-job training. Since the essence of any
on-the-job training program is referral for work, the decree
cannot be taken as requiring the union not to refer trainees
in such a manner as would allow the contractors to comply with
the Plan, since such a reading would require the Union in
effect to not cooperate with the Plan. Thus the consent
decrees require the unions to cooperate with the contractors
in complying with the referral provisions of the Plan, and,
indeed, require the unions to cooperate with the Plan.
Upon finding that a requirement is a lawful and proper
exercise of authority under the Executive Order and Section
22(a) of the Federal Highway Act (as has been shown the
Ogilvie Plan to be), there is no question that all contractors
who wish to contract for highway construction in these two
counties must meet these requirements, and that the S.I.B.A.,
as representative of its member contractors, has bound its
members, by signing the Plan, to comply with the provisions of
the Ogilvie Plan.
The existence of collective bargaining agreements which
contain provisions in conflict with some provisions of the
Ogilvie Plan is no defense to noncompliance with the Plan's
provisions by the contractors. See Contractors Association of
Eastern Penna. v. Schultz, Secretary of Labor, supra. 442 F.2d
p. 175; United States v. Sheet Metal Workers, Intern. Ass'n,
Local Union No. 36, A.F.L.-CIO., 416 F.2d 123, 132 n. 16 (8th
To hold that the existing obligations under the collective
bargaining agreement constitute a valid defense would readily
subvert attempts by the Government to regulate the terms under
which it will contract. It is a well settled principle that
"immunity from federal regulation is not gained through
forehanded contracts." Federal Housing Authority v.
Darlington, 358 U.S. 84, 91, 79 S.Ct. 141, 146, 3 L.Ed.2d 132
(1958); Fleming v. Rhodes, 331 U.S. 100, 107, 67 S.Ct. 1140,
91 L.Ed. 1368 (1947).
The remaining conflicts relate to trainee wage rates and
grievance procedures. The latter conflict, in reality, does
not exist as unions which sign the addendum to the Plan are
not required to follow the Plan's grievance procedure. Any
disputes between the contractors and the unions (as
distinguished from disputes among signatories to the Plan)
therefore may continue to follow the procedures in their
agreements. Likewise, with regard to wage rates, the
difficulty is more apparent than real, since wage rates do not
appear to have been a stumbling block thus far. In the
apprenticible trades there appears to be no reason under the
collective bargaining agreements why the trainees who are not
yet fully qualified journeymen cannot be treated (for pay
purposes) as first, second or third year apprentices. With
respect to the Operating Engineers I do not read the Plan as
precluding payment to trainees at full Oiler rates (since
oilers typically are learners in the industry), which are
comparable to apprenticeship rates in the other trades.
In conclusion, the Ogilvie Plan represents an equitable
solution to the problem of equal employment opportunity for
minority group persons in the two-county area, and such plans
are well established by federal law.
It is therefore ordered, adjudged and decreed that:
(1) Defendant Unions' Counterclaim be denied.
(2) Defendant Unions' Crossclaim be denied.
(3) Defendant Metro-East Labor Council's
Counterclaim be denied.
(4) Defendant Metro-East Labor Council's Motion
to Dismiss the Complaint be denied.
(5) Defendant State Officials' Motion tion
Dismiss the defendant unions' nied.
(6) Defendant State Officials' Motion Dismiss the
defendant unions' crossclaims be allowed,
inasmuch as this Court has heretofore denied
defendant unions' crossclaims.
This cause came on for hearing on the motion to vacate
orders and declaratory judgment, on a motion for new trial on
behalf of defendant Unions, on a motion to amend the judgment
by plaintiff S.I.B.A. and S.I.C.A., and on a conditional
motion for a new trial by defendant Metro-East Labor Council.
This Court had anticipated that in its determination of the
constitutionality of the Ogilvie Plan, the parties involved
herein would meet and attempt to implement the Ogilvie Plan in
a most expedient manner possible. Inasmuch as the parties
herein have failed to reach any agreement among themselves as
to certain specific areas in facilitating the implementation
of the Ogilvie Plan, this Court shall assume the duty of
clarifying these specific areas.
It is therefore ordered, adjudged and decreed:
(1) The orders entered by this Court this date are made a
part of the Order and Decree entered by this Court on May 7,
1971, thereby amending said Order and Decree.
(2) The sequential hiring pattern of trainees or minority
group individuals in the Kronst memorandum of January 12, 1971
is not prohibited nor required by the Ogilvie Plan.
(3) The intent of the Ogilvie Plan in establishing its
minimum ratios is to require referral and employment of
minority group individuals on a craftwide basis in highway
construction, in the aggregate, throughout the jurisdictional
area covered by the Ogilvie Plan, and not to require referral
employment of minority group individuals in a fixed ratio on
any particular job site.
(4) The terms and provisions of the Ogilvie Plan do not
require the contractors to employ more individuals than are
needed to perform any job according to the terms of the
collective bargaining agreements between the unions and the
It is further ordered, adjudged and decreed that:
(1) The Conditional Motion for a New Trial of Metro-East
Labor Council be denied.
(2) The Motion for New Trial and the Motion for Vacation of
Orders and Declaratory Judgment by defendant Unions be denied.
(3) The Motion to Amend the Declaratory Judgment by the
plaintiff Contractors, S.I.B.A. and S.I.C.A., be granted in
part and denied in part.