LOCATION: Residence of Fitzgerald
DOCKET NO.: 81-280
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Third Circuit
CITATION: 458 US 375 (1982)
ARGUED: Mar 03, 1982
DECIDED: Jun 29, 1982
Harold I. Goodman - on behalf of Respondents
John G. Kester - on behalf of Petitioners in 81-280 et al
John J. McAleese, Jr. - for petitioners in 81-330, et al.
Facts of the case
Media for General Building Contractors Association, Inc. v. Pennsylvania
Audio Transcription for Oral Argument - March 03, 1982 in General Building Contractors Association, Inc. v. Pennsylvania
Warren E. Burger:
We will hear arguments next in General Building Contractors Association against Pennsylvania.
I think you may proceed whenever you are ready.
You may raise that lectern if it is any more convenient for you.
No, no, the lectern, by the crank.
The other way.
John J. McAleese, Jr.:
That's all right.
Mr. Chief Justice, and may it please the Court:
In this case the courts below stretched the reach of the contract portion of Section 1981 of Title 42 to impose liability for racial discrimination on a private business organization and three private trade associations who themselves did not practice discrimination, did not have any intent to discriminate, did not conspire to discriminate, and neither knew nor had reason to know that the discrimination for which they were held liable was being practiced.
Thus, the general question presented hereby is whether Section 1981 does indeed reach so far.
The case began in the Eastern District of Pennsylvania in 1971 when 12 blacks in the Commonwealth of Pennsylvania sued, among others, a construction union, a construction contractor, and three contractor associations for racial discrimination under, among other statutes, Section 1981.
The focus of the complaint was the union's exclusive referral system which was found by the trial court and not challenged, was facially neutral.
The action was certified as a class action on both the Plaintiff and the Defendant's sides, the construction contractor, Glasgow, being the class representative for approximately 1500 other contractors, and the associations being the class representatives for other associations.
This afternoon I will argue on behalf of Glasgow, and Mr. Kester on behalf of the associations.
The case was bifurcated for trial into a liability phase and a damage phase.
The former has been completed.
The latter essentially has not started.
Following trial, the trial court imposed liability under Section 1981 on the union, on Glasgow, and on the three associations, and thus on the members of the defendant classes that these defendants represented.
It issued an extensive injunction against all defendants and class members, which included hiring quotas and training programs.
Stated in a somewhat simplified fashion, the trial court's decision under Section 1981 respecting Glasgow was that the union, defendant union intentionally discriminated against minorities in the operation of its referral system, and solely because Glasgow, acting pursuant to a lawful contractual duty, notified the union of its need for workmen, and thereafter hired persons referred by the union, it, too, was enveloped within the Section 1981 net.
I might again add that the trial court found... and those findings are unchallenged... that Glasgow itself did not discriminate, did not intend to discriminate, did not conspire to discriminate, and neither knew nor had reason to know that the union was practicing discrimination.
The Third Circuit en banc divided equally, thereby affirming, and did not seek... and did not issue any opinion.
The union did not seek review by this Court.
Some background facts are helpful.
In 1961 Glasgow, a Philadelphia unionized excavating contractor, had a collective bargaining agreement with the Operating Engineers Local Union which represented operating engineers employed by Glasgow.
Operating engineers run heavy construction equipment, cranes, bulldozers and the like.
Up until then, Glasgow was free to obtain operating engineers from any available source.
He could hire off the street.
Glasgow's labor agreement with the engineers was scheduled to expire around mid-1961.
In the negotiations that year for a new labor agreement Glasgow was represented by one of the contractor associations which is a petitioner here.
Glasgow was participating in these negotiations pursuant to its legal duty under federal law to bargain in good faith with the Engineers Union.