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But we have no doubt that the contractors have sufficient standing as plaintiffs. The Executive Order is focused upon them; they will have to alter their previous method of hiring and a failure to exert the "good faith effort" to meet his commitment will expose them to the imposition of sanctions. This case is, therefore distinguishable from Perkins v. Lukens Steel Co., supra, and falls within the orbit of Abbot Laboratories v. Gardner, supra. The motion of the defendants for a dismissal of the cause of action instituted by the Contractors Association of Eastern Pennsylvania will be granted. The motion for dismissal ás it relates to the intervening plaintiffs will be denied.
Our next inquiry concerns itself with the problem of whether or not the provisions of the Philadelphia Plan for commitment to specific goals for minority group participation is in conflict with Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000(e) et seq. Initially, we note, that in support of their respective motions for summary judgment counsel concede that on this issue there is no genuine issue of material fact and thus, as a matter of law, the issue is ripe for judicial determination. We shall therefore consider and determine that question now. Having summarized the historical background relating to the issuance of past executive orders we will now review the conflicting issues raised by the parties. The plaintiffs contend that the executive branch is without the power to require a Philadelphia Plan commitment because the conduct required of a contractor under that Plan would violate Title VII of the Civil Rights Act. The Act provides in relevant part that it is an unlawful practice for an employer-
(1) to fail or refuse to hire or to discharge
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin.
The plaintiffs have forcefully and ably argued that the Philadelphia Plan will require a contractor to hire and employ on the basis of and with regard to race, color and national origin. They adhere to the theory that the Plan imposes racial "quotas''; that it requires ''preferential" treatment for minority persons and so creates reverse discrimination or in the ordinary context, the contractors, in order to meet his goals would necessarily have to discriminate against white persons in order to hire minority applicants.
In response the defendants deny that the Philadelphia Plan requires an employer to act in a manner which is unlawful under Title VII. They assert that the Philadelphia Plan is a lawful and appropriate implementation of the affirmative action obligation of Executive Order 11246.
The Court is of the opinion that the Plan is not in conflict with the provisions of the Civil Rights Act. We agree with the view expressed by the
. Court in Weiner v. Cuyahoga Community College District (14 CCF 1 83,244),
238 N, E. 2d 839, 844 aff'd 29 N. E. 2d 907 (1969), cert. denied. (1970) where the Court observed:
"The Court is satisfied that the Civil Rights Act of 1964,
If there is any one lesson that loomed above the others it is that the Civil Rights Act and the Executive Orders both have a common purpose to assure to all an equal chance of employment. Discriminatory obligations are not its intent. This is also the stated policy of the judiciary. The Supreme Court has stated that:
"[T]he Court has not merely the power but the duty to render a decree which will so far as possible elimi nate the discriminatory effects of the past as well as bar like discrimination in the future''. Louisiana v. United States, 385 U.S. 145, 154 (1965).
The pivotal question, therefore, is whether the Plan demands that the contractors hire on the basis of and with regard to race, color and national origin. Reassertion of this basic postulate becomes necessary because a significant portion of the legal conclusions advanced by the parties are derived from their respective interpretation of the legality of the Plan as it applies to those requirements which impose on the contractors the necessity of
(a) setting specific goals for minority group hiring;
(b) every good faith effort to meet these goals;
(c) that they may not, in so doing, discriminate against any qualified applicant or employee on grounds of race, color, religion, sex, or national origin.
We are in accord with that part of the opinion of the Attorney General2 which reads: "If a plan such as this conflicts with Title VII of the Civil Rights Act, its validity cannot be sustained".
Opinion of Attorney General, page 9, dated September 22, 1969.
Despite what would appear to be areas of overlap in Title VII and Executive Order 11246, we are not entirely without guidance in determining the propriety of the Order, given the overall goals of the Order and its executive history. The affirmative action requirement issued on September 24, 1965, has been tested and held to be a valid exercise of presidential authority. Farkas v. Texas Instrument Company, 375 F. 2d 629 (5th Cir. 1967); Executive Orders have been upheld as having the force and effect of law. Local 189 v. United States, 416 F. 2d 980 (5th Cir. 1969); Farmer v. Philadelphia Electric Company [9 CCF 1 72,490), 329 F. 2d 3 (3rd Cir. 1964). The heartbeat of "affirmative action is the policy of developing programs which shall provide in detail for specific steps to guarantee equal employment opportunity keyed to the problems and needs of members of minority groups, including when there are deficiencies, the development of specific goals and timetables for the prompt achievement of full and equal employment oprortunity. The Philadelphia Plan is no more or less than a means for implementation of the affimative action obligations of Executive Order 11246.
The compelling reed for implementation is clearly established. The Department of Labor found that "the most reliable data available" shows the following: in the ironworkers union, 1.4 percent of the membership consists of minority group persons; in the steamfitters union, .65 percent consists of minority group persons; in the sheetmetal workers union, 1 percent; in the electricians union, 1 percent; in the elevator construction workers union, .54 percent; and in the plumbers and pipefitters union, .51 percent.3
We return to the evocative question of whether the Plan conflicts with Title VII of the Civil Rights Act. We continue our analysis against the backgrop of the established principle that an interpretation of a Presidential order issued by the official charged with administering its provisions is entitled to great, if not controlling weight. Udall v. Tallman, 380 U.S. 1 (1964). It is also well settled that the Government has the unrestricted power to fix the terms and conditions upon which it will make needed purchases, Perkins v. Lukens Steel Co., supra; unless prohibited by statute. Abbot Laboratories v. Gardner, supra. Our analysis of the plaintiffs' argument indicates to us that the genesis of their complaint is that compliance with the Plan is tantamount to a guarantee of minority employment. The Court is not persuaded that the plaintiffs' theory is sound. The Plan does not require the contractors to hire a definite percentage of a minority group. To the contrary, it merely requires that he makes every good faith effort to meet his commitment to attain certain goals. If a contractor is unable to meet the goal but has exhibited good faith, then the imposition of sanctions, in our opinion, would be improper and subject to judicial review. See :
Copper Plumbing & Heating Company v. Campbell, 290 F. 2d 368 (C. A. D. C. 1964); Gonzalez v. Freeman (9 CCF 1 72,558], 334 F. 2d 570 (C. A. D. C. 1964). It is equally clear that if this plan is properly administered it will be a plan of inclusion rather than exclusion. This we feel is necessary as our times demand skilled craftsmen who have learned their craft and who must have an opportunity to make use of their abilities and skills. The strength of any society is determined by its ability to open doors and make its economic opportunities available to all who can qualify. It is fundamental that civil rights, without economic rights, are mere shadows. These two rights are not only equal but a must, and when realized will bring into full play that
3 Executive Order 11246, issued on September 24, 1965, 30 F.R. 12319; 32 F.R. 14303; 34 F.R. 12986.
protection to which our Constitution and statutes are dedicated. In summary, it is our conclusion that the Philadelphia Plan is not inconsistent with the requirements of Title VII of the Civil Rights Act of 1964.
Attacking the geographical aspect of the Plan, the plaintiffs contend that the requirement of the Plan's commitment is an unconstitutional exercise of Executive power because it is an arbitrary and capricious classification by the Executive branch, based solely and exclusively on artificial geographic boundaries without any other justification in fact or law and thus violated the Fifth and Fourteenth Amendment guarantees of equal protection of the laws.
It is abundantly clear that Congress has the authority to limit its attention to the geographic area where immediate action seems necessary. South Carolina v. Katzenbach, 383 U.S. 301, 328 (1964); and equal authority rests in legislative treatment by a state. McGowan v, Maryland, 366 U.S. 420, 426 (1961); Salsburg v. Maryland, 346 U.S. 545, 550 (1954). Also that the Equal Protection Clause relates to equality between persons as such rather than between areas. Salsburg v. Maryland, supra, at 551:
"The Fourteenth Amendment does not profess to secure
However, the plaintiffs submit that this is a legislative prerogative which is denied to the Executive branch. It is also suggested that a geographical selection, to be valid, must be based on some peculiarly local condition not present in other areas of the country.
While our research and that of the parties have failed to uncover any cases dealing explicitly with this doctrine, i.e. the legality of the Executive to designate a particular area, this Court, however, is of the opinion that the executive branch of the federal government has the right to issue an order that applies to a limited area. We are of the view that the instant order has the force of law. Cf. Farmer v. Philadelphia Electric Company, supra, and may be equated with the authority of a Congressional or legislative Act limiting legislation to a specific area.
The plaintiffs propose to the Court that the plan is arbitrary and capricious because its force is directed against the contractors, who admittedly are not responsible for the evil and not against the labor unions. It is urged that the findings of the Department of Labor, if legally acceptable, established a pattern of discriminatory membership adopted by the union. It is pointed out that the plaintiffs are not individually or collectively charged with racially discriminatory hiring practices. But, as a matter of common knowledge, as buttressed by the findings of the Department of Labor, we recognize that the contractors are compelled to rely on the construction
craft unions as their prime or sole source of their labor and that most people in these classifications are referred to the jobs by the unions.
We acknowledge that the position in which the contractors find themselves is rather unfortunate and perhaps the solution may become difficult. Nevertheless, as we had previously determined, the Government, unless forbidden by law law, has the unrestricted power to fix the terms, conditions and those with whom it will deal. Perkins v. Lukens Steel Company, supra; King v. Smith, 392 U.S. 309, 333 (1969). At this juncture it is appropriate to observe that the Plan requires the contractors to take minority group representation into account in their recruiting and hiring practices. This should be done. As stated in Norwalk Core v. Norwalk Redevelopment Agency, 395 F. 2d 920, 931 (2d Cir. 1968):
"What we have said may require classification by
That is something which the Constitution usually
See, also, Offerman v. Nitkowski, 378 F. 2d 22, 24 (2d Cir. 1967); Springfield School Committee v. Barksdale, 348 F. 2d 261 (1st Cir. 1965). The plaintiffs have not persuaded us that the Executive Order is constitutionally tainted. We believe that contractual bidding is subject to the terms and conditions set forth in the Order. In light of all the circumstances, and as the Plan sets forth a reasonable method to assure equal treatment for minority groups, if the contractor makes the required good faith effort, the charge of arbitrary and capricious is negated. Our examination of the record indicates to us that the findings of the Department of Labor with respect to minority group representation in the construction industry in the five-county Philadelphia area as compared with representation in the involved trades, representation in the craft unions, and the manner of hiring are amply supported by the evidence adduced at the hearings and also by the studies conducted by the Department of Labor.
The plaintiffs' additional challenge to the validity of the Plan enters into the area of separation of constitutional powers. They call upon the Court to say that Congress is the exclusive branch of our tripartite form of government that has the constitutional authority to design an employment program. We are urged to accept the thesis that the executive is without power to order social change. This contention is fallacious. Thirty years of executive mandates have been enunciated and their validity is established. We look to the initial executive order relative to discriminatory practices first enunciated by President Franklin D. Roosevelt in 1941 and by his successors in office .4 We have no doubt that the authority to issue the applicable executive orders will withstand any assault. They stem from
4President Harry S. Truman in 1951; Dwight D. Eisenhower, 1953, John F. Kennedy, 1961.