The opinion of the court was delivered by: Napoli, District Judge.
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
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 plan of
discrimination that would warrant disregard for the literal
meaning of the statute.
The defendant locals have moved to dismiss the complaint on the
ground that the plaintiffs have failed to join indispensible
parties under Rule 19 of the Federal Rules of Civil Procedure. It
is argued that this action can not proceed without the District
Council, the other affiliated locals and representatives of the
employers' associations, all of whom are parties to or affected
by collective bargaining agreements entered into by the District
Council on behalf of the union. This argument is without merit
because it misconceives the nature of the remedy sought by the
plaintiffs. The plaintiffs seek an injunction against unlawful
employment practices by the defendants and damages for themselves
and the class they seek to represent resulting from past
discrimination. In addition, they ask this Court, either directly
or through a special master, to oversee the establishment of a
non-discriminatory hiring and referral procedure.
Rule 19 of the Federal Rules of Civil Procedure governs the
joinder of persons
needed for a just adjudication. The rule states in part:
(a) Person to be Joined if Feasible. A person who
is subject to service of process and whose joinder
will not deprive the court of jurisdiction over the
subject matter of the action shall be joined as a
party in the action if (1) in his absence complete
relief cannot be accorded among those already
parties, or (2) he claims an interest relating to the
subject of the action and is so situated that the
disposition of the action in his absence may (i) as a
practical matter impair or impede his ability to
protect that interest or (ii) leave any of the
persons already parties subject to a substantial risk
of incurring double, multiple, or otherwise
inconsistent obligations by reason of his claimed
The essence of the alleged discrimination is that the officials
of the defendant locals have not made referrals and have not made
known information concerning job opportunities on an equal basis.
Each of the collective bargaining agreements that have been filed
here as exhibits specifically excludes the use of hiring halls by
the union. Hiring is to be done by the employer on the job site.
The plaintiffs contend that they have been denied employment in
that the locals have supplied the employer with lists of persons
to be employed, excluding the plaintiffs' names, and have failed
to inform the plaintiffs as to where good jobs are available. In
addition they charge that the union has discriminated in the
appointment of stewards, who have an advantage in the event of a
lay-off or overtime, and foremen who receive a premium wage.
Although the complaint does refer to the collective bargaining
agreement in paragraph three, the reference is ambiguous and the
plaintiffs have made it clear they do not wish to change any
provision of the agreement and do not consider it discriminatory
in itself. What is alleged is that the defendants have
discriminated on the basis of race in the performance of their
duties to their members under the bargaining agreement. Contrary
to the defendants' assertion the plaintiffs do not seek the
creation of a hiring hall in violation of the contracts but
rather they allege the existence of a de facto hiring hall by
which the locals have referred their members and provided
employment information on an unequal basis.
If, at a trial on the merits, the plaintiffs should prove their
case, an order directed at the defendant locals could provide
complete relief. In addition such an order could be shaped in
such a manner as to leave unaffected the rights or interests of
all parties to the collective bargaining agreements. Since it is
clear that no person described in Rule 19(a) is not presently
before the Court, the motion of the defendant locals to dismiss
will be denied.
The plaintiffs have brought this action on behalf of themselves
and all other Negro members of their locals and all other locals
affiliated with the District Council. It is alleged that there
are approximately 300 Negro members of Local 4, approximately 340
Negro members of Local 269 and a total of approximately 11,000
Negro members of all of the affiliated locals. The defendants
object to the maintenance of a class action again asserting the
absence of indispensible parties.
It is obvious that a class action can not be maintained on
behalf of all Negro members of all the locals affiliated with the
District Council. The only defendants properly before the Court
are Local 4 and Local 269. An order of this Court directed to
those two defendants could not be effective to eliminate
discrimination in other locals or to compensate members of other
locals for past discrimination carried out by persons not before
the Court. There is no allegation that either of these two
defendants have been responsible for any alleged discrimination
occurring in other locals. Therefore the maintenance of an action
on behalf of the large class,
all Negro members of all affiliated locals, must be denied.
That difficulty does not exist with respect to classes
including only the Negro members of the two defendants. The
complaint alleges that these defendants have been guilty of
unfair employment practices toward a racially defined group of
their members. Under the facts alleged it would be possible for
this Court to fashion appropriate relief which would in no way
affect the provisions of the collective bargaining agreements or
persons not party to this action.
The prerequisites to a class action are stated in Rule 23(a) of
the Federal Rules of Civil Procedure.
One or more members of a class may sue or be sued
as representative parties on behalf of all only if
(1) the class is so numerous that joinder of all
members is impracticable, (2) there are questions of
law or fact common to the class, (3) the claims or
defenses of the representative parties are typical of
the claims or defenses of the class, and (4) the
representative parties will fairly and adequately
protect the interests of the class.
The first requirement is met by the fact that the two classes of
plaintiffs here contain 300 and 340 members respectively.
Secondly, all the persons sought to be represented are Negro
members of the respective locals and the existence of a plan of
discrimination and its effectuation are questions common to all
members. The claims of the plaintiffs here are necessarily
typical of the class and, finally, the representatives have a
vested interest in the elimination of the wrong which they
allege, and no question has been raised as to the technical
competence of the plaintiffs' counsel.
In addition to the presence of these prerequisites, it is also
apparent that the alleged conduct of the defendants has been on
grounds generally applicable to the class which would make
injunctive relief appropriate to the class as a whole as provided
in Rule 23(b)(2). Therefore, in accordance with section (c)(3)
of the same rule, any judgment in this action must include all of
those described below as members of the classes.
Class actions have been consistently upheld under Title VII of
the Civil Rights Act. Bowe v. Colgate-Palmolive Co., 416 F.2d 711
(7th Cir. 1969); Jenkins v. United Gas Corp., 400 F.2d 28 (5th
Cir. 1968); Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th
Cir. 1968). Indeed, as was stated in Bowe:
A suit for violation of Title VII is necessarily a
class action as the evil sought to be ended is
discrimination on the basis of a class
characteristic, i.e., race, sex, religion or national
The defendants' contentions that each member of the class must
have filed a charge before the EEOC before he may be included in
the class and that a class action may be maintained for
injunctive relief only and not for damages are without merit.
Bowe v. Colgate-Palmolive Co., supra.
Therefore it is the opinion of this Court that the named
plaintiffs may maintain this action on behalf of themselves and
as representatives of the class of which each is a member. Since
the representative must be a member of the class, it is necessary
that there be two classes, each made up of the Negro members of
one of the defendant locals and each represented by the named
plaintiff who is a member of that local.
MOTIONS TO STRIKE
The defendants have moved to strike from Count I, paragraph 2,
of the complaint the finding of the Equal Employment Opportunity
Commission on the charges filed by the plaintiffs. It is
contended that the finding is immaterial and prejudicial. In
addition, the defendants have moved to strike all of the
affidavits filed by the plaintiffs in opposition to the
defendants' motions, portions of the amicus brief filed by the
EEOC and the plaintiffs have moved to strike certain affidavits
filed by the defendants.
The motion to strike the portion of the complaint referred to
above will be granted. The finding of the Commission quoted in
the complaint is not necessary to establish the jurisdiction of
All other motions to strike will be denied. Motions to strike
are not favored under the Federal Rules and the number of such
motions filed in this case is simply having the effect of
clouding important issues. The motion to strike provided for in
Rule 12(f) refers to matter contained in the pleadings and not to
matter contained in briefs. As far as the affidavits in this case
are concerned, the Court is well aware of which statements are
admissible in evidence and which are not and they have been
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