Atkins v. City of Charlotte, Civ. No. 2274.

• Decision Date: 25 February 1969
• Docket Number: Civ. No. 2274.
• Citation: 296 F. Supp. 1068
• Court: U.S. District Court — Western District of North Carolina
• Parties: Jesse E. ATKINS, T. W. Arant, J. B. Atkins, John Auten, C. R. Bacot, Lewis Bacot, et al., Plaintiffs, and International Association of Fire Fighters, an International Labor Union, Plaintiff-Intervenor, v. CITY OF CHARLOTTE, a municipal corporation; Walter J. Black, Chief of City of Charlotte Fire Department; John E. Ingersoll, Chief of City of Charlotte Police Department; Elliott M. Schwartz, Solicitor of 14-A Solicitorial District, Defendants.

296 F. Supp. 1068

Jesse E. ATKINS, T. W. Arant, J. B. Atkins, John Auten, C. R. Bacot, Lewis Bacot, et al., Plaintiffs and International Association of Fire Fighters, an International Labor Union, Plaintiff-Intervenor, v. CITY OF CHARLOTTE, a municipal corporation; Walter J. Black, Chief of City of Charlotte Fire Department; John E. Ingersoll, Chief of City of Charlotte Police Department; Elliott M. Schwartz, Solicitor of 14-A Solicitorial District, Defendants.

Civ. No. 2274.

United States District Court W. D. North Carolina, Charlotte Division.

February 25, 1969.

COPYRIGHT MATERIAL OMITTED

J. LeVonne Charbers, Chambers, Stein, Ferguson & Lanning, and Reginald S. Hamel, Charlotte, N. C., for plaintiffs.

H. L. Riddle, Jr., Riddle & McMurray, Morganton, N. C., for plaintiff-intervenor.

W. A. Watts, Charlotte, N. C., for defendants.

William W. Van Alstyne, Durham, N. C., amicus curiae.

Before CRAVEN, Circuit Judge, and JONES and WARLICK, District Judges.

CRAVEN, Circuit Judge:

This is a civil action brought to obtain a declaratory judgment and injunctive relief declaring unconstitutional and preventing enforcement of Sections 95-97, 95-98 and 95-99 of the General Statutes of North Carolina. We hold G.S. 95-97 unconstitutional on its face. We hold G.S. § 95-98 a valid and constitutional exercise of the legislative authority of the General Assembly of North Carolina. As for G.S. § 95-99, we hold it to be so related to G.S. § 95-97 that it cannot survive the invalidation of that section.

Counsel have not been able to agree on findings of facts. We have carefully examined their separate submissions, and, although we note variances, we are more impressed with the similarities. The differences are almost entirely those of degree and emphasis, and, we think, are without legal significance. From the pleadings, answers to interrogatories, depositions, exhibits, briefs and statements of counsel, the court finds the facts to be a follows:

FACTS

The statutes sought to be invalidated are these:

N.C.G.S. § 95-97: Employees of units of government prohibited from becoming members of trade unions or labor unions.—No employee of the State of North Carolina, or of any agency, office, institution or instrumentality thereof, or any employee of a city, town, county, or other municipality or agency thereof, or any public employee or employees of an entity or instrumentality of government shall be, become, or remain a member of any trade union, labor union, or labor organization which is, or may become, a part of or affiliated in any way with any national or international labor union, federation, or organization, and which has as its purpose or one of its purposes, collective bargaining with any employer mentioned in this article with respect to grievances, labor disputes, wages or salary, rates of pay, hours of employment, or the conditions of work of such employees. Nor shall such an employee organize or aid, assist or promote the organization of any such trade union, labor union, or labor organization, or affiliate with any such organization in any capacity whatsoever. The terms "employee," "public employee" or "employees" whenever used in this section shall mean any regular and full-time employee engaged exclusively in law enforcement or fire protection activity.

N.C.G.S. § 95-98: Contracts between units of government and labor unions, trade unions or labor organizations concerning public employees declared to be illegal.—Any agreement, or contract between the governing authority of any city, town, county, or other municipality, or between any agency, unit, or instrumentality thereof, or between any agency, instrumentality, or institution of the State of North Carolina, and any labor union, trade union, or labor organization, as bargaining agent for any public employees of such city, town, county or other municipality, or agency or instrumentality of government, is hereby declared to be against the public policy of the State, illegal, unlawful, void and of no effect.

N.C.G.S. § 95-99: Penalty for violation of article.—Any violation of the provisions of this article is hereby declared to be a misdemeanor, and upon conviction, plea of guilty or plea of nolo contendere shall be punishable in the discretion of the court.

All of the plaintiffs are members of the Charlotte Fire Department, and the gist of the complaint is that the statutes are overbroad and prohibit constitutionally guaranteed rights of the plaintiffs in violation of the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution of the United States. Specifically, plaintiffs want to become dues paying members of a Local which would become affiliated with International Association of Fire Fighters, the intervenor. Affidavits of some 400 fire fighters of the Charlotte Fire Department have been put into evidence to the effect that, if allowed to do so by law, affiants would join the Union.

The City of Charlotte is a municipal corporation which operates and maintains the Charlotte Fire Department pursuant to the City Charter. The Chief of the Department is appointed by the City Council and is accountable to the Council for the faithful performance of his duties. He is responsible for the discipline and efficiency of the Department and for carrying out all orders, rules and regulations approved by the Council. He is also responsible for approving all promotions of members in the Department subject to the approval of the Civil Service Board.

The Department has approximately 438 employees, consisting of the Chief, two assistant chiefs, 14 deputy chiefs, 60 fire captains, and 56 fire lieutenants, with the remainder being fire fighters, inspectors, fire alarm personnel and office personnel. The plaintiffs consist of deputy chiefs, captains, lieutenants and fire fighters and range in service with the department from two to 40 years.

For many years prior to the enactment in 1959 of the North Carolina General Statutes complained of, the International Association of Fire Fighters operated or maintained a union made up of Charlotte Fire Department members and designated as Local 660, an affiliate of the International Association of Fire Fighters. A number of Fire Department members paid dues to that organization which was engaged in collective bargaining activity. Further, the City checked off dues for union membership.

During 1959, the North Carolina Legislature enacted General Statutes §§ 95-97 through 95-99. Following the enactment of these statutes, Local 660 terminated its affiliation with the International Association of Fire Fighters and became, or took the name, Charlotte Fire Fighters Association. This organization continued the activities and representations very much as had been the practice with Local 660. The Fire Fighters Association continued to negotiate with the City and to represent the Charlotte firemen with respect to wages, grievances, and other conditions of employment, and the City continued its recognition of the association and permitted dues check-off. This practice continued from 1959 until 1962. On January 29, 1962, the City Council received and approved a report compiled by the City Manager. One of the recommendations of this report as it was approved established as a condition of continued employment in the Fire Department non-membership in the Fire Fighters Association or in any successor thereto. The City Council approved this report after having been advised by the City Attorney that the Fire Fighters Association was not illegal per se under the statutes complained of, but that the association and its recognition by the City was in violation of public policies of the State. Sometime after this action on the part of the City Council, the Fire Fighters Association terminated its activities and the City discontinued its recognition and dues checkoff. A grievance procedure was established to allow individual employees to process grievances, but no provisions were made for group grievance procedure or for collective bargaining with respect to grievances, wages, and conditions of employment.

During March of 1967, members of the Charlotte Fire Department, the plaintiffs herein, organized the Charlotte Firemen's Assembly. This organization has as its purpose collective bargaining with the City of Charlotte with respect to wages, grievances, hours of employment and other conditions of employment. It would like to become a local affiliate of intervenor but is prevented by the statutes. The Firemen's Assembly has not been recognized by the City as a representative of firemen.

PROCEDURAL QUESTIONS AND PLEAS IN BAR

We resolve all procedural questions and pleas in bar against the defendants:

(1) As will appear more fully below, it is clear that the complaint states a claim for relief.

(2) We reject the argument that the statutes involved are within the sovereign power of the State of North Carolina under the Tenth Amendment to the Constitution of the United States and thus beyond the reach of other amendments to the Constitution. The attempted interposition of sovereignty is utterly lacking in merit, and is especially so on behalf of a municipal corporation.

(3) Contrary to Charlotte's contention, the Eleventh Amendment does not provide immunity for counties, cities or other governmental units smaller than the states themselves. Wright, Federal Courts § 46 at 151 (Hornbook ed. 1963). Although notice of the pendency of this action was served upon the Attorney General of the State of North Carolina, he did not seek to intervene and is not a party, nor is the State.

(4) There is nothing to the contention that there is a misjoinder of parties defendant and parties plaintiff. Even if there were it would be of no moment, for the basis of jurisdiction is the presence of a federal question and not the alignment of parties under diversity jurisdiction.

(5) This case is properly before a

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