Appeal from a judgment of the United States District Court for the Southern District of New York, Lloyd F. MacMahon, Judge, holding unconstitutional New York City union and union-label bidding requirements for flat-form printers, as a denial of equal protection to nonunion printers. The district court's conclusions on abstention, standing, ripeness and federal preemption are upheld. The judgment on the merits is reversed.
Smith, Anderson and Oakes, Circuit Judges. Anderson, Circuit Judge, concurring in part, dissenting in part.
This appeal raises the specter of Lochner v. New York, 198 U.S. 45, 49 L. Ed. 937, 25 S. Ct. 539 (1905), which, with the possible exception of Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1857) (the Dred Scott case), remains the most discredited of Supreme Court decisions. We reject the attempt to resurrect this apparition of the past.
At issue below,*fn1 as well as on this appeal, is a policy of the City of New York (City) whereby only printers employing union labor and exhibiting the union label are permitted to bid for the City's "flat-form printing" business.*fn2 Utilizing traditional equal protection analysis, thereby avoiding the substantive due process issue raised by appellees, the United States District Court for the Southern District of New York, Lloyd F. MacMahon, Judge, found the City's practice "irrational" and hence unconstitutional.*fn3 We reverse the district judge's equal protection holding and find no violation of appellees' due process rights. However, we agree with the district judge that this case is not appropriate for abstention, that appellees have standing to raise their constitutional claims and that Section 7 of the National Labor Relations Act (NLRA)*fn4 does not preempt the City's practice of favoring union printers.
Appellees, plaintiffs in the district court, are non-union printers. Appellants, defendants below, are City officials who enforce the practice of restrictive bidding on flatform printing contracts. The Allied Printing Trades Council of Greater New York, an umbrella organization of printing unions, has participated in these proceedings as intervenor.
The controversy arises over a Resolution (Resolution) adopted April 12, 1934, by the New York Board of City Record*fn5 requiring bidders for flat-form work to operate a union plant and to pay the "prevailing rate of wages."*fn6 In addition, the forms printed for the City must bear the union label. These requirements are followed by the Department of Purchase,*fn7 the Board of Education*fn8 and the Health and Hospitals Corporation.*fn9 We need not question the district court's factual findings that printing quality is not a function of union status*fn10 and that the 350 nonunion shops in New York, as compared to the 250 union shops, come closer to paying the required prevailing wage rate,*fn11 because we believe that a rational basis for the City's policy exists.
1. " Pullman " Abstention.
Judge MacMahon was correct in not exercising his discretionary authority under Railroad Commission v. Pullman Co., 312 U.S. 496, 500-01, 85 L. Ed. 971, 61 S. Ct. 643 (1941), to abstain when state law is uncertain and a state court construction might obviate the need for federal constitutional adjudication. This case, as in McRedmond v. Wilson, 533 F.2d 757, 759 (2d Cir. 1976), "does not present the narrowly limited circumstances permitting invocation of the doctrine . . . ." A decision on the constitutional claims does not depend on an interpretation of unclear or complex state law. See id. at 760, 762. There is no ostensible basis for interpreting the Resolution, or the bidding requirements implementing it, to permit nonunion shops to do flat-form printing for the City. Even if nonunion shops pay the prevailing wage rate, see note 6 supra, they are nevertheless precluded from bidding because the Resolution is drafted in the conjunctive: the printer must be "a union plant and pay the prevailing rate of wages." (Emphasis added.) The ...