503 F.2d 294 (6th Cir. 1974), 74-1135, Afro Am. Patrolmen's League v. Duck

Docket Nº:74-1135, 74-1136, 74-1266 and 74-1267.
Citation:503 F.2d 294
Party Name:Dec. P 9697 AFRO AMERICAN PATROLMENS LEAGUE et al., Plaintiffs, Fraternal Order of Police Lodge #40, Applicant for Intervention-Appellant, v. Robert DUCK, Police Chief of Toledo, et al., Defendants-Appellees. AFRO AMERICAN PATROLMENS LEAGUE et al., Plaintiffs, Toledo Police Patrolmen's Association, Applicant for Intervention-Appellant, v. Robert DU
Case Date:September 26, 1974
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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503 F.2d 294 (6th Cir. 1974)

Dec. P 9697

AFRO AMERICAN PATROLMENS LEAGUE et al., Plaintiffs,

Fraternal Order of Police Lodge #40, Applicant for

Intervention-Appellant,

v.

Robert DUCK, Police Chief of Toledo, et al., Defendants-Appellees.

AFRO AMERICAN PATROLMENS LEAGUE et al., Plaintiffs, Toledo

Police Patrolmen's Association, Applicant for

Intervention-Appellant,

v.

Robert DUCK et al.

AFRO AMERICAN PATROLMENS LEAGUE et al., Plaintiffs-Appellees,

v.

Robert DUCK et al., Defendants-Appellants, John Bryant et

al., Defendants Intervenors.

AFRO AMERICAN PATROLMENS LEAGUE et al., Plaintiffs-Appellees,

v.

Robert DUCK et al., Defendants, John Bryant et al.,

Applicants for Intervention-Appellants.

Nos. 74-1135, 74-1136, 74-1266 and 74-1267.

United States Court of Appeals, Sixth Circuit

September 26, 1974

Argued June 14, 1974.

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Gerald S. Lubitsky, Toledo, Ohio, for Fraternal Order of Police Lodge No. 40; Richard M. Neller, Toledo, Ohio, on brief.

George R. Royer, Toledo, Ohio, for applicant-intervenor on brief for Toledo Police Patrolmen's Ass'n.

John J. Burkhart, Chief Counsel, Toledo, Ohio, on brief for Robert Duck, and others.

Merritt W. Green, II, Toledo, Ohio, on brief for Afro-American Patrolmens League, and others.

Feinberg, Meyers, Schumacher & Schumacher, by Robert H. Schumacher, Minneapolis, Minn., for Minneapolis Police Federation of Minneapolis, Minn., for amicus curiae.

George R. Royer, Toledo, Ohio, for Ohio Union of Patrolmen's Ass'n and Toledo Police Patrolmen's Assoc., Inc.

Before McCREE, LIVELY and ENGEL, Circuit Judges.

LIVELY, Circuit Judge.

This civil rights action is concerned with requirements for promotion within the police department of Toledo, Ohio. The plaintiffs in the district court were two black patrolmen and an association open to all members of the Toledo safety forces, with a membership composed largely of black policemen. Both of the individual plaintiffs have taken examinations for promotion to sergeant in the Toledo Police Department on a number of occasions, and each has passed the examination several times. However, neither of the individual plaintiffs has been promoted to sergeant. The defendants are the chief of police, the city manager, the safety director, to members of the Toledo Civil Service Commission and its executive director. The complaint alleges violations of 42 U.S.C. 1981 and 1983 and 42 U.S.C. 2000d in addition to denial of constitutional rights guaranteed by the Thirteenth and Fourteenth Amendments.

Three separate groups sought to intervene in the action. The court denied intervention to the Fraternal Order of Police and the Toledo Police Patrolmen's Association, two groups which claimed to have a 'joint exclusive' right to represent Toledo patrolmen in bargaining with the City of matters concerning wages, conditions of employment, 'and otherwise.' This right of representation exists by virtue of a provision of the Toledo Municipal Code. The court granted intervention to 15 white patrolmen who had passed the most recent line sergeant examination and had been chosen for promotion from patrolman to sergeant prior to the dates this suit was filed.

Following several days of proof, the district court concluded that the plaintiffs had carried their burden of demonstrating that discriminatory elements were present in the practices followed by the Toledo Police Department in promoting to command positions and that it was necessary to eliminate the discriminatory features of the system in order to avoid the perpetuation of a racial imbalance which was found to exist. The court specifically found that (1) a rule requiring a patrolman to have five years service before becoming eligible to take the examination for sergeant and two years of service in each succeeding rank before becoming eligible for examination for the next higher rank, and (2) a rule which gave a 'bonus' for seniority, had a discriminatory effect upon promotion in the Toledo Police Force. The opinion of the district court is reported at 366 F.Supp. 1095.

The original defendants and the 15 intervening defendants have appealed, as have the two organizations which were

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denied intervention. All appeals were heard by a single panel of the court on the same day and will be disposed of in this opinion.

The unsuccessful applicants for intervention maintain that as statutory bargaining agents for all patrolmen they were entitled to intervention as a matter of right under Rule 24(a), Fed.R.Civ.P., or in the alternative, should have been permitted to intervene under Rule 24(b). It is alleged that the district court order enjoining all promotions and appointments under existing practices will require the City of Toledo to breach its collective bargaining agreement with the representatives of the patrolmen. It is also contended that the Fraternal Order of Police should be permitted to assert the right of all the citizens of Toledo to have a high quality police department. We do not believe that either of the organizations established that it qualified for intervention as a matter of right under Rule 24(a). The rights of the patrolmen who are members of the Fraternal Order of Police and the Toledo Police Patrolmen's Association were adequately represented in this action by the existing parties and the 15 white patrolmen who were permitted to intervene. An applicant for intervention has the burden of showing that representation by existing parties is inadequate. Edmondson v. State of Nebraska ex rel. Meyer, 383 F.2d 123, 127 (8th Cir. 1967); 3B Moore's Federal Practice, para. 24.09-1(4). The provisions of the collective bargaining contract must give way to the constitutional requirement of equal protection, and the fact that these applicants have such agreements with the City of Toledo does not establish that they are...

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