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MCDONALD v. AM. FED. OF MUSICIANS OF U.S. AND CAN.

January 13, 1970

LANEY MCDONALD, ALONZO SMITH, ADAM LAMBERT, KING FLEMING, ALAN LANE, CHARLES WALTON AND FRANK DERRICK, JR., PLAINTIFFS,
v.
AMERICAN FEDERATION OF MUSICIANS OF THE UNITED STATES OF AMERICA AND CANADA, AFL-CIO, CHICAGO FEDERATION OF MUSICIANS, LOCAL 10-208, AMERICAN FEDERATION OF MUSICIANS OF THE UNITED STATES OF AMERICA AND CANADA, AFL-CIO, AND H. LEO NYE, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

This action was brought by the plaintiffs, all members of Local 10-208 of the Chicago Federation of Musicians, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The defendants are the international union, the plaintiffs' local and the recording secretary of the local. Each of the defendants has moved for dismissal or for summary judgment. The Equal Employment Opportunity Commission has filed an amicus curiae brief in support of the plaintiffs.

Prior to the enactment of the Civil Rights Act of 1964 the defendant American Federation of Musicians (hereinafter referred to as AFM) maintained two affiliate locals in Chicago, the Chicago Federation of Musicians, Local 10 and Musicians Protective Union, Local 208. Local 10 was composed predominantly of Caucasians and Local 208 was made up exclusively of Negroes. In 1963, some of the members of Local 208, including the plaintiffs, attempted to transfer to Local 10 in order to take advantage of better job opportunities available through that local. Transfer was permitted in accordance with the bylaws of the two locals and the international, however, a $100 transfer fee was assessed against any member of Local 208 wishing to join Local 10. Each of the plaintiffs paid the transfer fee on the condition that if the two locals eventually merged the assessment would be refunded. The right to the refund depended upon the plaintiffs remaining in good standing with both locals, thus requiring them to pay dues to both.

In January, 1966, the two locals merged to form Local 10-208 and all Negro members of the former Local 208 became members of the new organization without the payment of any fee. The plaintiffs petitioned for the return of their transfer fee and on August 25, 1966, the Board of Directors of Local 10-208 voted to make the refund which was accomplished shortly thereafter. However the former president of Local 208 appealed the decision to the AFM. Contrary to the constitution and by-laws of both the local and the AFM, the plaintiffs were not given notice of the appeal, and on January 20, 1967, the AFM reversed the Board of Directors. A letter from the AFM to H. Leo Nye, Recording Secretary of the local, advised him of the action on the appeal and directed him to inform the international when the money had been recollected from each of the plaintiffs. Nye conveyed a copy of this letter to the plaintiffs requesting that they comply with its instructions. After repaying the fee under protest, the plaintiffs filed a charge against AFM and their local with the Equal Employment Opportunity Commission (hereinafter referred to as EEOC). The inability of the EEOC to resolve the dispute resulted in this lawsuit.

Local 10-208 has moved to dismiss or for summary judgment on the ground that the EEOC did not find reasonable cause to believe that it had violated Title VII of the Civil Rights Act. It is argued that a finding of reasonable cause by the EEOC is a jurisdictional prerequisite to filing of an action in this Court. There is considerable disagreement as to whether reasonable cause was found and whether it was or was not is far from clear. The EEOC's written memorandum of decision states under the heading of "Summary of Investigation":

  Since the merger materialized after the effective date of Title
  VII (July 2, 1965), Local 10's continuing refusal to return the
  money as required by the contract places it in violation of the
  Act.

In the same document, under the heading of "Decision", the EEOC concluded:

  Reasonable cause does not exist to believe that Respondent
  Chicago Federation of Musicians Local 10-208 has violated Title
  VII of the Civil Rights Act as charged.

The affidavit of Elmer W. McLain, Regional Director of the Equal Employment Opportunity Commission of Chicago, Illinois, filed on behalf of the defendant local, authenticates the document of decision finding no reasonable cause with respect to the local and further states that because of this decision no conciliation efforts were or could be undertaken. Local 10-208 also points out that the caption of the right to sue letter sent to the plaintiffs contained only the International and not the local.

The plaintiffs have filed an affidavit of the same Elmer W. McLain which again authenticates the EEOC's document of decision and which specifically refers to the portion already quoted indicating that Local 10-208 was in violation of Title VII. The affidavit also states that the decision of "no reasonable cause" as to the local "was limited solely to the Local's failure to notify the charging parties of an appeal to the International." The latter statement is to some extent substantiated by a document which specifies the date on which the EEOC's decision would become official. After naming the charging parties and the respondents the following conclusions appear: "(Local: No Cause/race-failure to notify of appeal to International) (International: Cause/race-ordering repayment of membership fee)."

In addition to arguing that reasonable cause was found with respect to Local 10-208, the plaintiffs and the EEOC maintain the question is irrelevant since a charging party has the right to sue in the United States District Court irrespective of the findings of the EEOC.

The wording of the jurisdictional statute, 42 U.S.C. § 2000e-5(e), is of little assistance in resolving this question.

    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 Commission 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 * * *.

The cases decided under this section have consistently held that an actual conciliation effort by the Commission is not a jurisdictional prerequisite. Miller v. International Paper Co., 408 F.2d 283, 288-291 (5th Cir. 1969); Johnson v. Seaboard Air Line R. R., 405 F.2d 645 (4th Cir. 1968); Choate v. Caterpillar Tractor Co., 402 F.2d 357, 361 (7th Cir. 1968); Sokolowski v. Swift & Co., 286 F. Supp. 775 (D.C.Minn. 1968); Mondy v. Crown Zellerbach Corp., 271 F. Supp. 258 (E.D.La. 1967), rev'd on other grounds sub nom. Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968); Moody v. Albemarle Paper Co., 271 F. Supp. 27 (E.D.N.C. 1967); Evenson v. Northwest Airlines, 268 F. Supp. 29 (E. D.Va. 1967). The only requirements are that the plaintiff file a charge with the EEOC, receive statutory notice that the EEOC has been unable to obtain voluntary compliance with the Act and then bring an action under section 706(e) within thirty days of receipt of the notice. Choate v. Caterpillar Tractor Co., supra; Mondy v. Crown Zellerbach Corp., supra. However, a charging party has ...


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