United States v. Building & Const. Tr. Coun. of St. Louis, Mo.

• Decision Date: 26 July 1966
• Docket Number: No. 66 C 58(2).,66 C 58(2).
• Parties: UNITED STATES of America, Plaintiff, v. BUILDING AND CONSTRUCTION TRADES COUNCIL OF ST. LOUIS, MISSOURI, AFL-CIO et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

271 F. Supp. 447

UNITED STATES of America, Plaintiff, v. BUILDING AND CONSTRUCTION TRADES COUNCIL OF ST. LOUIS, MISSOURI, AFL-CIO et al., Defendants.

No. 66 C 58(2).

United States District Court E. D. Missouri, E. D.

July 26, 1966.

COPYRIGHT MATERIAL OMITTED

Richard D. FitzGibbon, Jr., U. S. Atty., R. H. Kubie, Asst. U. S. Atty., Gerald W. Jones and Wm. F. McCabe, Attorneys, Southwestern Section, Civil Rights Div. U. S. Dept. of Justice, Washington, D. C., for plaintiff.

Clyde Craig, Jean Souders and Harold Gruenberg, St. Louis, Mo., for defendant Laborers Local 42.

Charles A. Werner, Schuchat, Cook & Werner, St. Louis, Mo., for defendants Locals 1 and 36.

Malcolm L. Bartley and Donald Siegel, Bartley, Siegel & Bartley, Clayton, Mo., for defendants Bldg. & Const. Trades Council & Local 35 and St. L. Journeymen Plumbers.

MEMORANDUM

MEREDITH, District Judge.

This matter is pending on motions to dismiss, or in the alternative for a more definite statement, interposed by the various defendants. The defendants are the Building and Construction Trades Council of St. Louis (Trades Council), Pipefitters Local No. 562 (Pipefitters), Sheet Metal Workers Local No. 36 (Sheet Metal Workers), Electricians Local No. 1 (Electricians), Laborers Local No. 42 (Laborers) and Plumbers Local No. 35 (Plumbers). A short statement of the nature of the complaint is necessary before turning to the grounds urged as requiring dismissal.

Plaintiff's first claim is labeled a common law action for interference with contractual relations. More specifically, it is alleged that defendants (with the exception of the Plumbers) have tortiously interfered with the performance of the nondiscrimination clause, required by Executive Order 11246, in a contract between the National Park Service and Hoel-Steffen Construction Company. Hoel-Steffen is the prime contractor for the Visitors Center at the Jefferson National Expansion Memorial (Gateway Arch). This contract included the so-called "affirmative action" covenant which required Hoel-Steffen to take affirmative action to insure equal employment opportunities at the Visitors Center. Hoel-Steffen was required to insert a nondiscrimination clause in all subcontracts for work on the project. The complaint alleges that Hoel-Steffen, in order to comply with the "affirmative action" covenant, entered into a subcontract with a plumbing contractor (E. Smith Plumbing Company) who employs members of the Congress of Independent Unions which does not discriminate against Negroes. Subsequently, after unsuccessful efforts to get the E. Smith Plumbing Company taken off the job, the Trades Council, of which all the defendant unions are affiliates, issued a statement that the rank and file of its affiliates did not wish to work at the project because non-affiliates of the AFL-CIO were to be employed. The defendant unions complied with this policy and refused to work. Plaintiff contends these actions were taken for the purpose of preventing Hoel-Steffen from complying with the nondiscrimination clause in its contract with the United States. Plaintiff prays for an order enjoining the defendants (except Plumbers) from taking any action to interfere with or frustrate the nondiscrimination and affirmative action covenants in the contract between the United States and Hoel-Steffen.

Plaintiff's second claim charges the defendants (with the exception of Laborers) with a violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e through 2000e-15). This action is brought under § 707 of the Act, 42 U.S.C. § 2000e-6, and alleges that the defendants have engaged in a pattern or practice of resistance to the exercise by Negroes of rights secured by the statute and that the pattern or practice is intended to and does deny the full exercise of those rights. Plaintiff prays that the defendants (except Laborers) be enjoined from discriminating against any individual by reason of his race with regard to union membership, apprenticeship and training programs, or from in any way acting so as to deprive an individual of, or to limit his, employment opportunities by reason of his race, or from causing or attempting to cause any employer to discriminate against any individual because of his race.

The motions to dismiss presently before the Court attack this complaint from every conceivable direction. The following grounds are urged for the dismissal of the first claim: (1) that the actions and conduct complained of are subject to the exclusive primary jurisdiction of the National Labor Relations Board (NLR B); (2) that the NLRB has taken jurisdiction of a complaint involving this same subject matter and that an injunction entered on February 7, 1966, in this Court, in cause No. 66 C 50(3), in connection with the NLRB proceedings renders the present complaint moot; (3) that the requested injunctive relief is prohibited by the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115; (4) that an adequate remedy at law exists under Title VII of the Civil Rights Act of 1964; (5) that the first claim fails to state a claim upon which relief can be granted; (6) that the first claim violates Rule 8 (a) (3) of the Federal Rules of Civil Procedure in that it contains no request for judgment; and (7) that the defendants are voluntary, unincorporated associations and are not amenable to suit on this claim. The grounds urged for dismissal of the second claim are: (1) that injunctive relief is prohibited by the Norris-LaGuardia Act; (2) failure to state a claim upon which relief can be granted; (3) lack of subject matter jurisdiction due to the failure of the complaint to allege that the Attorney General had reasonable cause to believe that there is such a "pattern or practice", as allegedly required by § 707 of the Act, 42 U.S.C. 2000e-6, and the failure to set out the facts constituting such a pattern or practice, as required by the Act; and (4) that injunctive relief would violate § 703(j) of the Act, 42 U.S.C. 2000e-2, which prohibits preferential treatment.

In their separate motion to dismiss, the Laborers have urged that, in addition to the grounds stated above, the first claim fails to allege any facts to warrant the conclusion that Laborers intended or acted to cause Hoel-Steffen to violate the provisions of its contract with the United States. The allegation that Laborers supported the Trades Council's policy statement does not support such a conclusion, since that statement expressly declares that no consideration of race was involved in the refusal to work on the project.

We have found it difficult to categorize or classify plaintiff's first claim. In one respect, the claim relates to racial discrimination. However, the legal theory invoked is simply tortious interference with contract, alleging that the defendants have acted to induce and force Hoel-Steffen to breach its contractual obligation with the United States. Several hurdles must be overcome for us to hear this claim. First, and foremost, is the fact that the defendants are all voluntary, unincorporated associations. Rule 17(b), F.R.C.P., provides in pertinent part:

"In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, * * * may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States, * * *."

Plaintiff has conceded that a labor union, being a voluntary, unincorporated association, does not have capacity to sue or be sued under Missouri law. However, plaintiff contends that its first claim asserts a substantive right existing under the laws of the United States, therefore, coming within the Rule 17(b) exception, because there is a federal common law right which can be invoked to attack interference with the nondiscrimination clause in government contracts. Plaintiff relies on Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943); United States v. Standard Oil of California, 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947); Romero v. International Term. Operating Co., 358 U.S. 354, 393, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959); Wheeldin v. Wheeler, 373 U.S. 647, 663, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963); and United States v. Yazell, 382 U.S. 341, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966), among others, to support its proposition that the federal courts can resort to federal common law whenever necessary to deal with essentially federal matters that require uniform treatment. In the Standard Oil case, supra, speaking of the effect of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the Court said:

"Conversely there was no purpose or effect for broadening state power over matters essentially of federal character or for determining whether issues are of that nature. The diversity jurisdiction had not created special problems of that sort. Accordingly the Erie decision, which related only to the law to be applied in exercise of that jurisdiction, had no effect, and was intended to have none, to bring within the governance of state law matters exclusively federal, because made so by constitutional or valid congressional command, or others so vitally affecting interests, powers and relations of the Federal Government as to require uniform national disposition rather than diversified state rulings. Cf. Clearfield Trust Co. v. United States, 318 U.S. at 366-368 63 S.Ct. at pages 574-576, 87 L.Ed. 838. Hence, although federal judicial power to deal with common-law problems was cut down in the realm of liability or its absence governable by state law, that power remained unimpaired for dealing independently, wherever necessary or appropriate, with essentially federal matters, even though Congress has not acted affirmatively about the specific question." (332 U.S. at 307, 67 S.Ct. at

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