Bailey v. Boilermakers Local 667 of Intern. Broth.

• Decision Date: 29 November 1979
• Docket Number: Civ. A. No. 79-0004-P(H).
• Citation: 480 F. Supp. 274
• Parties: Tamara BAILEY and Nancy Blake, Plaintiffs, v. BOILERMAKERS LOCAL 667 OF the INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, Iron Shipbuilders, Blacksmiths, Forgers and Helpers; Southeastern Area Joint Apprenticeship Committee; William McCormack, in official capacity as Managing Agent of Local 667, and Richard E. Bradley, President of Boilermakers Local 667, or his successor in office, in his official capacity, Defendants.
• Court: U.S. District Court — Northern District of West Virginia

480 F. Supp. 274

Tamara BAILEY and Nancy Blake, Plaintiffs, v. BOILERMAKERS LOCAL 667 OF the INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, Iron Shipbuilders, Blacksmiths, Forgers and Helpers; Southeastern Area Joint Apprenticeship Committee; William McCormack, in official capacity as Managing Agent of Local 667, and Richard E. Bradley, President of Boilermakers Local 667, or his successor in office, in his official capacity, Defendants.

Civ. A. No. 79-0004-P(H).

United States District Court, N. D. West Virginia, Parkersburg Division.

November 29, 1979.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

J. David Cecil, Charleston, W. Va., for plaintiffs.

Robert J. Smith, Charleston, W. Va., for defendants.

MEMORANDUM AND ORDER

HADEN, District Judge.

Presently pending before the Court are motions to quash service of process or in the alternative to dismiss for failure to obtain jurisdiction over the person of defendant SAJAC, or insufficiency of service of process on the defendant SAJAC. The defendant, Boilermakers Local 667 does not question the in personam jurisdiction of the Court. Also pending are motions to dismiss filed by both defendants which, if successful, on the various grounds alleged would be dispositive of this action.

Plaintiffs commenced this civil action on January 15, 1979, against Boilermakers Local 667 et al., and against Southeastern Area Joint Apprenticeship Committee hereinafter referred to as SAJAC claiming violations of the Fifth and Fourteenth Amendments to the United States Constitution and violation of the following statutes: 42 U.S.C. § 1981, § 1983, § 1985(3), § 1988 and § 2000e et seq., and 29 U.S.C. § 151 et seq.

The gravamen of plaintiffs' complaint is that the defendants jointly or in concert or as agents for one another discriminated against the plaintiffs by refusing to admit them to an apprenticeship program operated by SAJAC at the direction of Local 667 and thus denied plaintiffs the potential of becoming union members which in turn would provide them more work and greater wages. Integral to these claims is a further allegation of plaintiffs that Local 667 is the exclusive bargaining agent for all those possessing boilermaker skills in 54 of the 55 counties of West Virginia. The plaintiffs allege that the discrimination practiced by the defendants in the foregoing areas was done by reason of their sex.

The plaintiffs are both female with at least some experience in the boilermaker trade. Both filed applications for admittance to the boilermaker apprenticeship program and both took the apprenticeship examination administered on February 20, 1978. Neither have been admitted to the program and both assert that they have been denied admittance because of their sex. To support their allegations of gender discrimination, plaintiffs aver that there is only one female member of Local 667, although the membership exceeds 850 people and that the defendants discourage attempts of women to gain admission to the boilermaker apprenticeship program or to inform them they may obtain work as boilermakers.

Local 667 is a labor organization and an unincorporated association with geographical jurisdiction covering every county in West Virginia except Hancock County. SAJAC is a joint labor-management committee which supervises and controls the boilermaker apprenticeship program in several states including West Virginia. It is alleged to operate out of an office in Charleston, West Virginia.

Plaintiffs filed charges of discrimination with the West Virginia Human Rights Commission and the Equal Employment Opportunity Commission alleging that they had been denied admission to the boilermaker apprenticeship program because of their sex. It appears uncontroverted that plaintiffs have thus exhausted any available state remedies or administrative remedy prior to the institution of this action. In that regard, plaintiffs received their right to sue notices from the EEOC by letter dated October 12, 1978, which were received by them October 16, 1978 by service on their lawyer. This action was instituted on Monday, January 15, 1979.

This Court will deal with defendants' motions seriatim beginning with SAJAC's attack on sufficiency of process.

I. DEFENDANT SAJAC'S MOTION TO QUASH SERVICE OF PROCESS, OR IN THE ALTERNATIVE, TO DISMISS PLAINTIFFS' COMPLAINT

The defendant SAJAC has moved the Court pursuant to Rules 12(b)(2) and 12(b)(5) of the Federal Rules of Civil Procedure to quash service of process against it, or in the alternative, to dismiss plaintiffs' complaint as to it for lack of jurisdiction over the person and because of insufficiency of service of process. It contends specifically that Billy Williamson, the purported recipient agent of the service of process, is not and has not, in fact, ever been an agent appointed for that purpose nor is he, for that matter, a member of the SAJAC committee. It further contends, and the record so reflects, that no return of service was made by the person appointed to make service that would reflect service of process upon SAJAC as an entity, unincorporated or otherwise.

SAJAC, as an unincorporated association, is a suable entity under one of the methods authorized by Rule 17(b) of the Federal Rules of Civil Procedure. It may be served pursuant to Rule 4(d)(3), Federal Rules of Civil Procedure. Such service must be made on an officer, a managing or general agent, and when service is made upon an agent he must be a person of sufficient character and rank to make it reasonably certain that the unincorporated association will be apprised of service made through that agent. Bailey v. Transportation-Communication Employees Union, 45 F.R.D. 444 (D.Miss.1968).

It appears to this Court that the plaintiffs have failed to obtain jurisdiction over the person of SAJAC, an unincorporated association, and the Court notes that plaintiffs have not countered the assertion that no member of SAJAC's committee has been properly served. It further appears that there was no attempt made to make proper return upon SAJAC through recognition of any of the recipients of process as an agent of SAJAC.

Nevertheless, the defects are curable. This Court has discretion to retain the case and yet quash the service of process colorably made upon the defendant, SAJAC. If the first service of process is ineffective, a motion to dismiss should not be granted, but rather the Court should treat the motion in the alternative, as one to quash the service of process and the case should be retained on the docket pending effective service. Stern v. Beer, 200 F.2d 794 (6th Cir. 1952); Buck v. Union Trustees of Plumbers and Pipefitters National Pension Fund, 70 F.R.D. 530 (E.D.Tenn.1976).

II. DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION UNDER 42 U.S.C. § 1981

Plaintiffs' complaint fails to allege a cause of action cognizable under 42 U.S.C. § 1981 since that statute is applicable only to allegations of racial discrimination, which are wholly absent here. The statute is not addressed to categories of selectivity based on sex. Runyon v. McCray, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); Raether v. Phillips, 401 F.Supp. 1393 (W.D. Va.1975).

III. DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION UNDER THE FOURTEENTH AMENDMENT TO THE CONSTITUTION AND UNDER 42 U.S.C. § 1983

In conclusory language, plaintiffs allege that the defendants by their acts, practice and conduct "under color of state law" have subjected plaintiffs to discrimination based solely on sex in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution and 42 U.S.C. § 1983. State Action is alleged to have occurred as follows: SAJAC because its apprenticeship program is registered with the United States Department of Labor; and Local 667 because it is the agent for referral of employees to boilermaker construction jobs in 54 of the 55 counties of West Virginia and because much of that construction is partially or wholly publically financed. Defendants counter that the above allegations wholly fail to demonstrate State Action.

This Court agrees with defendants. SAJAC cannot be made subject to claimed violations of the Fourteenth Amendment and 1983 since, under these facts, state nexus is wholly absent and derivative federal abuses, if any, are not actionable under the Fourteenth Amendment and 1983. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973).

Local 667 does not become an agent of the State or operate under authority of state law merely because of its status as labor provider for construction work which may be financed, in some aspect, by public funds. To invoke State Action the conduct of the state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity which caused the injury. Powe v. Miles, 407 F.2d 73 (2nd Cir. 1968). There is no direct state involvement with the hiring practices of Local 667, the activity alleged to have caused the injury herein. There is no contract between Local 667 and the State. State money is not received directly by the union nor can ordinary contracts between the State and contractors be said to join the union with the State or contractors as partners or joint venturers. See Byrd v. Local Union No. 24, Int. Bro. of Electrical Wkrs., 375 F.Supp. 545, 550-551 (D.C.Md.1974). Purely private action, whether discriminatory or not, is not prohibited by § 1983. Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). See also Moose Lodge, No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972).

IV.

DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION UNDER 42 U.S.C. § 1985(3)

Plaintiffs allege that defendants have conspired in violation of 42 U.S.C. § 1985(3) to deprive them of federally protected rights secured or given by the Fifth and Fourteenth...