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BUTLER v. LOCAL NO. 4 AND LOCAL NO. 269

October 9, 1969

CHARLIE BUTLER A/K/A CHARLES BUTLER AND CURTIS BUSH, INDIVIDUALLY AND AS REPRESENTATIVES OF A CLASS, PLAINTIFFS,
v.
LOCAL NO. 4 AND LOCAL NO. 269, LABORERS' INTERNATIONAL UNION OF NORTH AMERICA (AFL-CIO) AND DISTRICT COUNCIL OF CHICAGO AND VICINITY OF THE LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, DEFENDANTS.



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

MEMORANDUM OPINION

This action was brought by the plaintiffs under section 706(e), Title VII, of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e). The complaint alleges that defendant locals, of which the plaintiffs are members respectively, and their District Council are guilty of unlawful employment practices against the plantiffs and other Negro members of the union. They seek to maintain this suit as a class action on behalf of themselves and all other Negro members of the defendant locals and all other locals which are members of the defendant District Council. The District Council has moved for summary judgment for lack of jurisdiction. The defendant Locals have moved to dismiss because of the absence of indispensible parties. In the alternative the locals have moved for an order prohibiting the maintenance of a class action and have moved to strike portions of the plaintiffs' complaint. The Equal Employment Opportunity Commission has filed a brief as amicus curiae in opposition to defendants' motions. All defendants have moved to strike certain portions of the Commission's brief and affidavits filed by the plaintiffs. The District Council's motion for summary judgment will be treated as a motion to dismiss.

Butler, a member of Local 4 of the Laborers' International Union of North America, and Bush, a member of Local 269 of the same union, each filed verified charges of discrimination with the Equal Employment Opportunity Commission against their respective locals. After deferment to the State of Illinois Fair Employment Practices Commission pursuant to 42 U.S.C. § 2000e-5(b-d), the Equal Employment Opportunity Commission began an investigation of the charges and subsequently notified the plaintiffs, in accordance with 42 U.S.C. § 2000e-5(e), that a civil action could be brought within thirty days against the respondents named in the charge. The plaintiffs then filed this action against their locals and the District Council.

JURISDICTION

In support of its motion to dismiss, the council contends that the statute authorizing an action in the District Court makes it a jurisdictional prerequisite that any party sought to be sued must have been a respondent in the charge brought before the Commission. It is argued that since the District Council was not charged before the Commission it can not be sued here. The section in question, 42 U.S.C. § 2000e-5(e), provides in part:

    If within thirty days after a charge is filed with
  the Commission or within thirty days after expiration
  of any period of reference under subsection (c) of
  this section * * *, the Commisson has been unable to
  obtain voluntary compliance with this subchapter, the
  Commission shall so notify the person aggrieved and a
  civil action may, within thirty days thereafter, be
  brought against the respondent named in the
  charge * * *.

This language has consistently been held to make the naming of a respondent in a charge before the Commission a jurisdictional prerequisite to a civil action against that party under Title VII of the Civil Rights Act. Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir. 1967); Sokolowski v. Swift & Co., 286 F. Supp. 775, 782 (D.C.Minn. 1968); Cox v. United States Gypsum Co., 284 F. Supp. 74, 76 (N.D.Ind. 1968), aff'd 409 F.2d 289 (7th Cir. 1969); Mondy v. Crown Zellerbach Corp., 271 F. Supp. 258, 266 (E.D.La. 1967). There is, however, language in some of these cases indicating that the rule need not be strictly applied where there exists between the defendants, one of whom was not charged before the Commission, an agency relationship by which a common enterprise of discrimination is being carried out. Taylor v. Armco Steel Corp., C.A. 68-H-129 (S.D.Tex. June 9, 1969), so held. This construction of the statute was expressed in Sokolowski v. Swift & Co., supra 286 F. Supp. at 782.

    The rationale of the above-cited cases seems to be
  that in the absence of allegations in the complaint,
  and later supported by evidence, that something in
  the nature of an agency relationship exists whereby
  one party is carrying out the plan of another to
  effect a discriminatory employment practice, each
  defendant must be named in the charge before the
  Commission in order that suit later may be brought
  against such person. The allegation in the complaint
  in Sokolowski, et al consisting only of the simple
  statement that the Local and the International are
  "affiliated" falls far short of such requirement.

The plaintiffs urge that Armco Steel and the dicta in Sokolowski should be followed and that the relationship between the defendants here is sufficiently close and their activities sufficiently dependent that technical compliance with the statute should not be required. The District Council is composed of delegates from each of the union's locals in the Chicago area. These delegates in turn elect the officers of the Council which bargains for and binds the locals to agreements with the employers in the industry. The plaintiffs rely on the functional connection between the locals and the District Council and affidavits of the plaintiffs and other members of the locals, indicating that members of the District Council have in the past exercised influence and control over the locals.

It is the opinion of this Court that the District Council's motion to dismiss must be granted. The language of the statute is clear and unequivocal that a party must be a respondent before the EEOC before he may be sued under Title VII. In Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969), the Court stated:

    It is a jurisdictional prerequisite to the filing
  of a suit under Title VII that a charge be filed with
  the EEOC against the party sought to be sued.
  42 U.S.C. § 2000e-5(e). This provision serves two
  important purposes. First, it notifies the charged
  party of the asserted violation. Secondly, it brings
  the charged party before the EEOC and permits
  effectuation of the Act's primary goal, the securing
  of voluntary compliance with the law. While we
  believe that the Union was not entirely blameless in
  permitting discrimination to exist and could have
  worked harder to eliminate the residual and
  continuing effects of the blatant prior
  discrimination, it is undisputed that at no time was
  the Union ever charged before the EEOC as a party in
  violation of Title VII. Accordingly, the Union cannot
  be held liable for any damages resulting from
  discrimination and the trial court's determination in
  favor of the Union is affirmed.

It is the position of the plaintiffs and the holding of Taylor v. Armco Steel Corp., supra, that the statute's definition of labor organization to include any agent of such organization, 42 U.S.C. § 2000e(d), extends jurisdiction in this Court to any agent of a party charged before the Commission. This Court does not agree. Defining a labor organization to include its agents delineates the scope of application of the sections of Title VII prohibiting unlawful employment practices. It does not suggest that the term "respondent" as used in 42 U.S.C. § 2000e-5(e) has the same meaning. According to the definition, the activities of agents of labor organizations are subject to the provisions of Title VII. However, the charging of one before EEOC does not make a respondent of the other.

The situation may be different where there is substantial identity between the parties but that is not the case here. The plaintiffs have submitted affidavits which relate incidents suggesting that members of the District Council have exercised influence over the locals. These affidavits, however, do not establish an identity of parties or a coextensive ...


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