Byrd v. Local Union No. 24, Int. Bro. of Electrical Wkrs.

• Decision Date: 19 March 1974
• Docket Number: Civ. A. No. 72-848-M.
• Citation: 375 F. Supp. 545
• Parties: Nathaniel C. BYRD et al., Plaintiffs, and Eddie Hudson, Individually and on behalf of others similarly situated, Intervening Plaintiff, v. LOCAL UNION NO. 24, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, et al., Defendants.
• Court: U.S. District Court — District of Maryland

375 F. Supp. 545

Nathaniel C. BYRD et al., Plaintiffs and Eddie Hudson, Individually and on behalf of others similarly situated, Intervening Plaintiff, v. LOCAL UNION NO. 24, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, et al., Defendants.

Civ. A. No. 72-848-M.

United States District Court, D. Maryland.

March 19, 1974.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Alan S. Davis, Legal Aid Bureau, Inc., and Kenneth L. Johnson, Baltimore, Md., Dennis R. Yeager and E. Richard Larson, National Employment Law Project, New York City, for plaintiffs.

James P. Garland, Carl E. Eastwick, and Thomas E. Bracken, Baltimore, Md., and Thomas X. Dunn and Robert L. Barton, Jr., Washington, D. C., for Local Union No. 24, I.B.E.W., and Joint Apprenticeship Training Committee.

James P. Garland and Carl E. Eastwick, Baltimore, Md., for Maryland Chapter N.E.C.A., Howard P. Foley, Inc., and Howard P. Foley, individually and as co-counsel for the Electrical Industry.

Leonard E. Cohen and Monte Fried, Baltimore, Md., for Mechanical Contractors, Sheet Metal Contractors, Baltimore Steamfitters, Lloyd E. Mitchell, Plumbers & Gasfitters, and Trustees, Steamfitters Local 438, Medical Fund.

Stanley Mazaroff, Baltimore, Md., for Piracci Const. Co., Inc.

Cosimo C. Abato and Anthony A. Abato, Jr., Baltimore, Md., for Baltimore Steamfitters, Trustees, Maryland Electrical Industry Welfare Fund, Baltimore Steamfitters' Area Joint Apprenticeship Committee, and Trustees, Steamfitters Local 438, Medical Fund.

Paul E. Gaeng and John J. Hirsch, Baltimore, Md., for Baltimore Sheet Metal Workers and Plumbers and Gasfitters Joint Apprenticeship Committee, Locals 37, 37A, 37B, 37R, and 122, and Trustees of the Health and Welfare Funds of Local 48.

Stanley Mazaroff, Baltimore, Md., for Steel Erectors Assn., Associated Gen. Contractors, and Ehrhardt & May, Inc.

W. Hamilton Whiteford and Nevett Steele, Jr., of Baltimore, Md., for Trustees of the Health and Welfare Fund of Sheet Metal Workers Local 122.

John H. Somerville, Baltimore, Md., for R. E. Linder Steel Erection.

Sidney Blum, Baltimore, Md., for Trustees of the Health & Welfare Funds, Local Union No. 16, Local No. 16, Joint Apprenticeship Training Committee, and Local Union No. 16, Intern. Assn. of Bridge, Structural & Ornamental Ironworkers.

JAMES R. MILLER, Jr., District Judge.

This action has been brought by 10 individual plaintiffs, for themselves and as putative representatives of a class of persons allegedly similarly situated, against labor unions, contractors and others associated with one or more of six trades forming a part of what could generically be called "the building industry" in the Greater Baltimore area. The gravamen of the plaintiffs' complaint is that the policies, practices, and customs of the defendants relating to the recruitment, apprenticeship, union membership, training, referral, hiring, and representation of workers within these six trades have resulted in unlawful racial discrimination against qualified black persons. The complaint, as amended, and an intervening complaint allege that the respective causes of action lie under 42 U.S.C. §§ 1981, 1983, 1985(3) and 1988, 28 U.S.C. §§ 2201 and 2202, and 29 U.S.C. § 151 et seq. The intervening plaintiff, Eddie Hudson, additionally claims a right of action under 42 U.S.C. § 2000e et seq.

Recently, a consent decree (Paper No. 193) was entered by this court, granting certain relief to Dennis Harlee and Lorenzo Campbell individually and as representatives of a class more specifically defined in an order certifying a portion of this case as a class action (Paper No. 192). The aforesaid consent decree and related orders disposed of all issues in the case concerning the steamfitter trade.

The five remaining trades are the electrical trade, the operating engineering trade, the plumbing and gasfitting trade, the ironworking trade, and the sheet metal trade. The court will now dispose of the myriad of motions pending as to the issues and parties concerned with the remaining trades.

I Unions' Motions to Dismiss

A. Failure to exhaust Title VII remedies.

Defendant unions, Local 24, International Brotherhood of Electrical Workers (I.B.E.W.); Local Nos. 37, 37A, 37B, 37R, International Union of Operating Engineers (Operating Engineers); Local 122, Sheet Metal Workers; Local 48, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry (Local 48); and Local No. 16, International Association of Ironworkers (Local 16) have filed motions to dismiss the plaintiffs' complaint. The defendant unions claim that plaintiffs'¹ admitted failure to exhaust their remedies under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) before bringing the present action under 18 U.S.C. § 1981 was improper and thus deprives this court of jurisdiction. Defendant unions rely on Waters v. Wisconsin Steel Works of Int'l Harvester Co., 427 F.2d 476 (7th Cir. 1970), cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970), as support for their position. The court in Waters held that 42 U.S.C. § 1981 provides an independent cause of action to remedy racial discrimination in employment only in circumstances in which the plaintiffs have pleaded "a reasonable excuse" for failing to exhaust Title VII's administrative remedies. No such "reasonable excuse" was pleaded in this case.

The approach taken by the Waters case has not been adopted by this court. See oral opinion in Lewis v. Bethlehem Steel, C.A. No. 70-1127-M (D.Md.1971), and Lane v. Bethlehem Steel, C.A. No. 71-580-M (D.Md.1971). Contra, Harper v. Mayor and City Council, 359 F. Supp. 1187 (D.Md.1972). Cf. Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir. 1972), cert. denied, 409 U.S. 982, 93 S.Ct. 319, 34 L.Ed.2d 246 (1972); see also, Alexander v. Gardner-Denver Co., 415 U.S. 36 at 47-51, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); Young v. IT & T Co., 438 F.2d 757 (3rd Cir. 1971); Brady v. Bristol Meyers, Inc., 459 F.2d 621 (8th Cir. 1972); Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir. 1971), cert. denied, 405 U.S. 916, 92 S.Ct. 931, 30 L.Ed.2d 785 (1972). There is no reason to conclude that Title VII administrative remedies were designed to supplant, limit, or delay the utilization of § 1981.

B. Failure to state a claim under § 1983 and the 14th Amendment.

Defendant unions contend that under the standards set forth in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), the plaintiffs have failed to allege the necessary state action or action "under color of state law" required to state a § 1983 or 14th Amendment claim.

Plaintiffs' answer to the defendants' contention is in two parts. First, plaintiffs contend that the Joint Apprenticeship Training Committee (JATC) programs in each trade are encouraged, supervised, registered, and partially financed by the State of Maryland under statutory authority, i.e., Md. Ann.Code, Art. 89 §§ 50(3), 53(2), 54 (4), and 55, and Art. 100 § 97(e) (1957 as amended). Furthermore, according to the plaintiffs, the JATCs are, in effect, mere agents of the defendant unions (See ¶¶ 31-38 of the complaint). The argument of the plaintiffs is that the connection of the JATCs with the State is so close that their actions are "under color of state law" and that, therefore, the actions of the defendant unions, as principals of the JATCs, are also "under color of state law." Several of the defendant unions have filed affidavits of their respective presidents in connection with their motions to dismiss, denying any agency relationship between the JATC and the union. These affidavits do not deny, however, that the defendant unions partially fund the JATCs nor that the JATCs are composed of union and contractor representatives who conceivably might act to further alleged union and contractor policies designed to discriminate against blacks. One of the major allegations of the complaint is that the contractors and unions in the respective trades have conspired to deprive the plaintiffs of their constitutional rights. A motion to dismiss should not be granted unless it is clear that the plaintiffs could not prove any set of facts under the pleadings which would entitle them to relief, Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Similarly, a motion for summary judgment may not be granted where conflicting inferences can be reasonably drawn from admitted facts. Pierce v. Ford Motor Co., 190 F.2d 910 (4th Cir. 1951). Whether treated as motions to dismiss or as motions for summary judgment under Rule 12(b), F.R.Civ.P., the defendant unions' motions on this point must be denied at this stage of these proceedings since it is not absolutely certain that defendant unions are not acting "under color of state law" through their relationship with the JATCs.

Plaintiffs' second contention with respect to state action is that vast expenditures of public funds go to members of defendant unions who work on public projects as employees of contractors which have been successful bidders on government work, and thus the unions are sufficiently connected with the State so that the unions' allegedly discriminatory activities are "under color of state law." (See ¶¶ 23, 30, 44 of complaint). The distance between the State and the unions is substantial under these allegations, and the argument of the plaintiff is tenuous. The Moose Lodge case clearly states that the Court has never held and does not intend to hold that "an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State . . . ." 407 U.S. at 173, 92 S.Ct. at 1971. At most, the money earned by union members who work on public projects is an incidental benefit to the union which receives dues money from its working members. The unions are at least one step removed from the public expenditure. State...