Commonwealth of Pa. v. Local U. No. 542, Int. U. of Op. Eng.

• Decision Date: 04 August 1972
• Docket Number: Civ. A. No. 71-2698.
• Parties: COMMONWEALTH OF PENNSYLVANIA et al., v. LOCAL UNION NO. 542, INTERNATIONAL UNION OF OPERATING ENGINEERS et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

347 F. Supp. 268

COMMONWEALTH OF PENNSYLVANIA et al., v. LOCAL UNION NO. 542, INTERNATIONAL UNION OF OPERATING ENGINEERS et al.

Civ. A. No. 71-2698.

United States District Court, E. D. Pennsylvania.

August 4, 1972.

COPYRIGHT MATERIAL OMITTED

Harold I. Goodman, Andrew S. Price, Community Legal Services, Philadelphia, Pa., for class and named plaintiffs.

Thomas J. Oravetz, J. Shane Creamer, Atty. Gen., Harrisburg, Pa., for the Com. of Pennsylvania.

Abraham E. Freedman, Philadelphia, Pa., for Local 542.

Ralph B. Powell, Jr., Philadelphia, Pa., for General Bldg. Contractors Assn.

OPINION

HIGGINBOTHAM, District Judge.

I.

In Philadelphia 196 years ago, a prophetic national vision was uttered in the Declaration of Independence: "We hold these truths to be self evident, that all men are created equal . . .". Yet, when proclaimed, the vision was not being implemented for many persons¹ in the new nation, since nearly one-fifth of the population was held in the chains of slavery.² Non-property owners seldom had the power to vote, and women were generally excluded from direct participation in the political process.³ Through the subsequent corridors of history extraordinary strides have been made towards expanding liberty, justice and equality. For labor, blacks, the weak and the poor have had many doors open since 1776.⁴ But the task of securing full equality for some of our citizens is still an urgent and unfinished business. As recently as 1964, the Congress of the United States emphasized that:

"In various regions of the country there is discrimination against some minority groups. Most glaring, however, is the discrimination against Negroes which exist throughout our Nation. Today, more than 100 years after their formal emancipation, Negroes who make up over 10 percent of our population, are by virtue of one or another type of discrimination not accorded the rights, privileges, and opportunities which are considered to be, and must be, the birthright of all citizens."⁵

The instant petition for an injunction pendente lite and a protective order is directly related to the expansion of rights which were assured by Congress in Title VII (Equal Employment Opportunity) of the Civil Rights Act of 1964. 80 Stat. 662, as amended, 86 Stat. 103, 42 U.S.C. § 2000e et seq. So far as the present emergency motion for an injunction pendente lite, the instant case is also a tragic reflection of a partial failure in the twentieth century to make real for all Americans the elusive rhetoric in the Declaration of Independence and the more precise rights guaranteed by the Civil Rights Acts of 1964 and 1972.

The instant case involved two interrelated phases or, as some might describe it, a lawsuit within a lawsuit. The first phase involves a lawsuit filed on November 8, 1971 and the second phase a petition filed on June 21, 1972,⁶ which claims that the defendant union and some of their members and agents are pursuing a course of conduct designed to intimidate, harass and preclude named and class plaintiffs from pursuing the lawsuit of November 8, 1971.

The first suit, filed on November 8, 1971, was initiated by the Commonwealth of Pennsylvania as a plaintiff, through the Attorney General of Pennsylvania, and twelve named individuals as plaintiffs and also as a class action on behalf of all others similarly situated. The causes of action are predicated on 42 U.S.C. §§ 1981, 1982, 1983, 1985(3), 1988,⁷ and 2000d and 2000e et seq.

Federal jurisdiction was based, inter alia, on 42 U.S.C. § 2000e-5(f) and (g), 28 U.S.C. §§ 1331, 1343(3) and (4).⁸

The first phase of the suit alleges employment discrimination by Local 542, International Union of Operating Engineers, and all contractors and contractor associations who have negotiated or are subject to collective bargaining agreements negotiated with Local Union 542.

On March 13, 1972 I entered an Order granting plaintiffs' motions (1) for leave to maintain this action as a class action as to class plaintiffs under Rule 23(b)(2) of the Federal Rules of Civil Procedure, (2) for leave to maintain this action as a class action as to class defendants under Rule 23(b)(2) and, (3) denied defendants motions to dismiss certain party plaintiffs, to drop the Commonwealth of Pennsylvania as a plaintiff, to strike certain matters from the complaint, and to strike certain matters from the prayer for relief. Further, I reserved jurisdiction to modify the order as to the scope of the class action.

Until June 9, 1972, this law suit proceeded in a normal, though vigorously contested fashion. I have not made, nor do I now make, any findings as to whether there is any legal merit in plaintiffs' original charges of racial discrimination as alleged in their November, 1971 complaint. The sole issue now before me is whether there is merit in plaintiffs' June 21, 1972 petition for an injunction pendente lite on the ground that the union and some of its members, officers, and agents are pursuing a course of violence, harassment and other similar acts to intimidate plaintiffs from pursuing the original law suit and from seeking the relief claimed therein.

After careful consideration of the extensive, and often intense, arguments of counsel, the records and briefs, I conclude that:

(1) plaintiffs have clearly met their burden of proof⁹ in establishing that through some of its members, officers and agents, the union has conspired to harass, to intimidate, and to commit acts of violence with the intent to deter plaintiffs from pursuing the November 8, 1971 law suit; and

(2) this Court has jurisdiction to grant an injunction pendente lite because of those acts of intimidation and violence designed to discourage plaintiffs from pursuing their November 8, 1971 law suit.

(3) During the course of the injunction pendente lite hearings there was no evidence introduced to connect even inferentially the defendant contractors or their association with any acts of intimidation, violence or harassment. Thus defendant contractors and association are dismissed as parties to this injunction pendente lite proceeding.

II. FINDINGS OF FACT

As in most litigation, the instant case cannot be simplistically cast by a finding that only angels dwell on one side and only villains on the other. The reality and complexity of human affairs usually encompass a broader spectrum and mixture of characters who at various times ambivalently display qualities of good or evil. Thus, necessarily, several singular events must be broadly probed to ascertain their interrelationship with prior and subsequent acts. Through the testimony of witnesses, the panorama of this case is not one of only blacks on one side and whites on the other. This case has less of the continuous, brutal racist conduct which was so often legendary in many of the classic southern civil rights cases of the 1960's.¹⁰ Instead, this matter has a northern syndrome where individuals have professed commitment to civil rights, but some (though by no means all) of their actions repudiate their rhetoric for equality.

A. The Events Prior To And Of June 9, 1972.

Prior to June 9, 1972, some blacks felt that black operating engineers and potential applicants were not receiving equal opportunities for jobs and privileges by reason of discrimination of the unions and the contractors. The Union and the contractors have steadfastly denied any acts of racial discrimination. Prior to June 9, 1972, there is no evidence of record to indicate racial violence or any acts of intimidation against blacks by reason of the November, 1971 lawsuit.

Apparently, the several depositions have been intense episodes; on no fewer than three or four occasions while in the midst of depositions, Counsel have requested this Court's ruling as to whether witnesses or parties should be sequestered and for other deposition rulings.

On June 6, 1972 Marion J. Eaddy (hereinafter referred to as "Eaddy") a black and a named plaintiff, was deposed at the law offices of Freedman, Borowsky and Lorry, Philadelphia, Pennsylvania, counsel for the Union. At his deposition, Eaddy testified, inter alia, that George A. Holland (hereinafter referred to as "Holland") had represented and assured him that as an operating engineer he would earn as much as $15,000.00 to $20,000.00 per year. Holland is, like Eaddy, black and a member of Local 542. Since 1969, Holland has been an appointed business agent for Local 542.

On Friday, June 9, 1972, while outside the union hiring hall, Eaddy alleges that he was questioned by Holland concerning the testimony which Eaddy had purportedly given at the June 6, 1972 depositions about Holland's prior promises and assurances. In Holland's words, the events took place as follows:

"I parked the car across from the gas station, and I walked over to the Hall at the Vine Street entrance. Mr. Eaddy was standing there with one foot on the step and one on the sidewalk. I said, `Hello, Marion, how are you?' He said, `Okay'. I said, `I would like to ask you a question, Marion.' I said, `You know I never promised you $20,000.00 a year'." (N.T. 225).

From that point of the conversation, there is complete disagreement as to the events which took place between Holland and Eaddy. Eaddy testified that he "could smell alcohol on him Holland before he got there a few yards," that Holland cursed at him and then said: "When did I ever ask you—when did I ever promise you $15,000 or $20,000?" (N.T. 55.) and he started pushing Eaddy

". . . with both hands and put his hand in his pocket and started easing up on me. He pulled a razor and he was waiving the razor in the air." (N.T. 55.)

Eaddy further testified that Holland was ". . . yelling so hard and loud that Bill Ciavaglia a union official and some men came out and had to drag him into the union hall and get him away from me." (N.T. 55.) Holland denies the altercation outside the union hall and claims that all he did was walk into the union office after...