United States District Court, Northern District of Illinois, E.D
March 6, 1964
WILLIAM WATERS, CLARENCE OTIS, WILLIAM SMITH, THEODORE ALSTON, AND CHARLIE BOOKER, PLAINTIFFS,
PASCHEN CONTRACTORS, INC., CROUCH-WALKER COMPANY, BRICKLAYERS, MASON & PLASTERERS INTERNATIONAL UNION OF AMERICA LOCAL 21, EDWARD T. JOYCE AS PRESIDENT OF LOCAL 21, JOHN MCCARTHY AS SECRETARY-TREASURER OF LOCAL 21, HENRY JURGENSON AS AGENT OF PASCHEN CONTRACTORS, INC., CROUCH-WALKER COMPANY AND LOCAL 21, DEFENDANTS.
The opinion of the court was delivered by: Marovitz, District Judge.
This is a motion of plaintiffs for a temporary restraining
order and a motion of defendants for judgment on the pleadings.
In this class action, brought by five Negro bricklayers, it is
charged that defendants have conspired to discriminate against
Negroes in hiring practices, in connection with the construction
and erection of the Federal Center in Chicago, Illinois. In a
general manner, plaintiffs allege violation of the Federal Civil
Rights Act, and the Fifth and Fourteenth Amendments to the
Constitution of the United States. Plaintiff seeks immediate
issuance of a temporary restraining order and preliminary
injunction, followed by a permanent injunction and damages in the
amount of $100,000.
Before any such relief may be granted, this Court must be
satisfied that the complaint states a cause over which we
maintain jurisdiction. Turning first to the labor dispute,
primarily the Labor Management Relations Act (Sec. 141 et seq.,
Title 29 U.S.C.), this Court is unable to uncover any federal
right to employment which can be protected in this particular
suit. And I don't mean by that that it can't be in a proper suit.
This view was stated in Ball v. Yarborough,
(5th Cir., 1960), 281 F.2d 789 where the court dismissed for lack
of jurisdiction, holding that there is no federal right to
employment guaranteed by the Constitution or the Civil Rights
Act. Similarly, the Court in Ferrer v. Fronton Exhibition Co.,
(5th Cir., 1951), 188 F.2d 954, 956, held that the right to
employment is exclusively within the domain of the state. See
also Love v. Chandler (8th Cir., 1942), 124 F.2d 785.
The defendant union correctly asserts, if it has discriminated
in hiring practices, this is, in effect, an alleged violation of
Sections 8(a)(2) and (3), 8(b)(1)(A), and 8(b)(2) of the
National Labor Relations Act (Sec. 158(b)(1)(A), and (2), Title
29 U.S.C.). Such violations are within the sole jurisdiction of
the National Labor Relations Board, and not of this Court. San
Diego Building Trades Council Millmen's Union Local 2020 v.
Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).
"When an activity is arguably subject to § 7 or § 8
of the Act, the States as well as the federal courts
must defer to the exclusive competence of the
National Labor Relations Board * * *." (359 U.S. at
pp. 244-245, 79 S.Ct. at p. 780, 3 L.Ed.2d 775.)
See Marine Engineers Beneficial Ass'n v. Interlake Steamship Co.,
370 U.S. 173
, 82 S.Ct. 1237, 8 L.Ed.2d 418; Green v. Local 705,
Hotel and Restaurant Employees', (D.C.Mich., 1963), 220 F. Supp. 505.
Secondly, plaintiffs have generally pointed to the Federal
Anti-Trust laws and asked the Court to find jurisdiction. There
can be no conspiracy in restraint of trade in this matter in view
of the clear language of Section 17, Title 15 U.S.C. That section
reads in part,
"The labor of a human being is not a commodity or
article of commerce. * * *"
There would appear to be an absence of further provisions in
the antitrust laws prohibiting discrimination in hiring. In
addition, there is present no valid allegation that the flow of
commerce is being restrained by defendants' actions. It therefore
follows that no federal jurisdiction can be asserted under Title
15. See Courant v. International Photographers, (9th Cir., 1949),
176 F.2d 1000; Levering & Garrigues Co. v. Morrin, 289 U.S. 103
53 S.Ct. 549, 77 L.Ed. 1062 (1933).
It is well settled law that the Civil Rights Acts, Sections
1981-1983, Title 42 U.S.C. apply only to acts done under color
of state law. The Constitutional authority for the enactment of
these statutes is found in the Fourteenth Amendment, which
unequivocally limits state action alone.
The action at bar is brought against a number of individuals
and private corporations. At no point in the complaint is it
claimed that the state or federal government acted to deny
plaintiffs equal protection of the laws to abridge the
constitutional privileges and immunities of plaintiffs, or to
deprive plaintiffs of life, liberty or property without due
process of law. Nor are any factual allegations presented to
demonstrate that the individual defendants acted under color of
state or federal law while carrying on their allegedly
It has repeatedly been held that the Fourteenth Amendment is
not directed against individual action, but rather it is solely
aimed at the action of states. Shelley v. Kraemer, 334 U.S. 1, 68
S.Ct. 836, 92 L.Ed. 1161 (1948). More specifically, the Supreme
Court, in Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95
L.Ed. 1253 (1951), dealt with the predecessor of Section 1985,
Title 42 U.S.C. The Court, stating that the Civil Rights Act did
not apply in the absence of some official act, or action under
color of state law, held that the action of individuals in
interfering with a meeting of plaintiffs and therefore, their
first amendment rights, could not be redressed by the Federal
"Such private discrimination is not inequality before
the law unless
there is some manipulation of the law or its agencies
to give sanction or sanctuary for doing so." (341
U.S. at p. 661, 71 S.Ct. at p. 942, 95 L.Ed. 1253.)
The Seventh Circuit, affirming Judge Igoe of this Court, has
ruled in a similar manner in Miles v. Armstrong, (7th Cir.,
1953), 207 F.2d 284
"Obviously before any liability will attach under
this section, the acts complained of must have been
done under color of authority of the state. Yet we
find in the complaint no averment that defendants
actually acted under color of any such prerogatives."
See also Shemaitis v. Froemke, (7th Cir., 1951), 189 F.2d 963.
The case at bar may be distinguished from Judge Campbell's
ruling in Todd v. Joint Apprenticeship Committee of Steel Workers
of Chicago, (D.C.Ill., 1963), 223 F. Supp. 12. In that case, the
Court found that the three governmental agencies involved
"sanctioned" the discriminatory conduct of the defendant union
and joint committee, within the language of the Civil Rights
Cases. There, both State and Federal Governmental agencies were
made party to the law suit, and the Court found denial of equal
protection of the laws, both by the State, under the Fourteenth
Amendment, and by the Federal Government under the Fifth
Amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98
L.Ed. 884. In the complaint before this Court, no such charges of
involvement are made against either State or Federal agencies.
The action is brought solely against private persons and
corporations. Their relationship with the Federal Government is
too tenuous to justify a "government" label on their activities.
With the absence of diversity of citizenship, plaintiff is
unable to demonstrate a substantial federal base on which
jurisdiction may rest. Accordingly, this Court must dismiss the
complaint for lack of federal jurisdiction.
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