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December 31, 1963


The opinion of the court was delivered by: Decker, District Judge.

This case arises on a motion to dismiss the amended complaint. The amended complaint is in two counts. Count I alleges jurisdiction under the Taft-Hartley Act (29 U.S.C. § 141, et seq.) and 28 U.S.C. § 1331. The plaintiffs are all Negro members of certain locals of the International Hod Carriers Union. It is not alleged in what way the Construction and General Laborers District Council is related to either the International Hod Carriers Union or its locals. However, the four plaintiffs allege that they are bringing this suit in their own behalf and on behalf of all other Negro members of the local unions similarly situated. Officers of the various local unions, the International Union and the District Council are also sued in their individual and representative capacities.

It is alleged that the labor unions are the exclusive bargaining agents of units in which the plaintiffs work, having been so designated by Section 9 of the Taft-Hartley Act (29 U.S.C. § 159), and that as such, the unions have an obligation to represent all employees within the bargaining units fairly, without discrimination because of race. It is alleged that it is the duty of the District Council "to exercise general supervision over the Local Unions named as defendants herein and their officers."

Prior to June, 1958, all of the labor union defendants operated what are known as "hiring halls" by which the plaintiffs were assigned work for employers by the unions. Since June, 1958, the "hiring halls" have been discontinued, and the plaintiffs now report directly to employers with whom the labor unions hold contracts for work. However, the employers still require the plaintiffs to present either "referral slips" from the unions or, at the very least, telephone calls from the unions before they will employ the plaintiffs.

The plaintiffs allege that in issuing "referral slips" and when advising members of job opportunities with employers by means of telephone, the defendants have discriminated against the plaintiffs solely because of their race. All of the individual defendant union officers are alleged to be white. Plaintiffs allege that they have no adequate remedy at law and seek injunctive relief against all of the defendants. Plaintiffs allege that they have exhausted all of the remedies available to them within the local unions, the District Council and the International Union; and that without injunctive relief, they will continue to lose large amounts of money in the form of wages and earnings, the exact sum of which can only be determined by the hearing of evidence.

In addition to injunctive relief, each plaintiff seeks $250,000. compensatory and punitive damages. (It is not clear if each of the four plaintiffs bringing this suit only seeks the $250,000. or if each of these plaintiffs is seeking $250,000. both for each of themselves and for each of the numerous other Negro laborers in the class in whose behalf they bring the suit.)

Count II alleges jurisdiction in the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. § 411 and 412) and also 28 U.S.C. § 1331. Plaintiffs specifically reallege and incorporate by reference paragraphs 3, 5 and 6 through 16, inclusive, of Count I. The only distinctive feature of Count II is that Section 101 of the L.M.R.D.A. of 1959 (29 U.S.C. § 411) gives each member of a labor organization equal rights and privileges to nominate candidates, to vote in labor union elections, to attend membership meetings and to participate in the business of such meetings; and also each member of a labor union is given the right to meet and assemble freely with other members and to express views at such meetings on the election of candidates for office in labor unions.

Further, Section 102 of the L.M.R.D.A. of 1959 (29 U.S.C. § 412) says specifically:

  "Any person whose rights secured by the
  provisions of this subchapter have been infringed
  by any violation of this subchapter may bring a
  civil action in a district court of the United
  States for such relief (including injunctions) as
  may be appropriate. Any such action against a
  labor organization shall be brought in the
  district court of the United States for the
  district where the alleged violation occurred, or
  where the principal office of such labor
  organization is located."

It is alleged that the plaintiffs have consistently protested the alleged racial discrimination set out in Count I and have attempted without success to nominate candidates at meetings of the labor unions in question who were "members of the class represented by the named plaintiffs" (presumably Negro candidates for office in the labor unions). The plaintiffs allege that while the racial discrimination that is alleged in Count I was going on they were not deprived of all work opportunities but were deprived of their "equitable share of work." However, since the plaintiffs have protested the practice of racial discrimination at labor union meetings and have attempted to nominate candidates for office, the plaintiffs allege that "job opportunities for the named plaintiffs have been substantially curtailed and in some instances completely abrogated, for no other reason but for their attempt to exercise their rights pursuant to law and as members in good standing of the labor organization defendants." The plaintiffs seek the same relief sought under Count I.

Motion to Dismiss

The defendants argue that the Court lacks jurisdiction over the subject matter in the first count in that the conduct of the labor unions complained of amounts to unfair labor practices in violation of Sections 8(b)(1) and 8(b)(2) of the Taft-Hartley Act, 29 U.S.C. § 158, in that primary and exclusive jurisdiction over such unfair labor practices is vested in the National Labor Relations Board pursuant to 29 U.S.C. § 160. Further, as regards to Count II of the amended complaint, the defendants make the same argument that violations of the L.M.R.D.A. of 1959 are also within the exclusive jurisdiction of the National Labor Relations Board, and that therefore this Court lacks jurisdiction over the subject matter.

Finally, the defendants argue in effect that the plaintiffs have failed to state claims upon which relief can be granted in either count.

Count I

The sole substantive question for the Court is whether the acts of the labor unions alleged amount to violations of the National Labor Relations Act, as amended, and amount to ...

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