Franklin v. CROSBY TYPE. CO. & INT'L TYPO. UNION

Decision Date23 January 1976
Docket NumberCiv. A. No. CA 4-74-240.
Citation411 F. Supp. 1167
PartiesMorris W. FRANKLIN v. CROSBY TYPESETTING COMPANY AND INTERNATIONAL TYPOGRAPHICAL UNION.
CourtU.S. District Court — Northern District of Texas

Huey P. Mitchell, Fort Worth, Tex., for plaintiff.

William O. Callaway, Jr., Fort Worth, Tex., Edward B. Cloutman, III, Dallas, Tex., for defendants.

MEMORANDUM OPINION

MAHON, District Judge.

This is a suit in which Plaintiff Morris W. Franklin, a black citizen of the United States and resident of Tarrant County, Texas, is suing his former employer and union for back pay, punitive damages, attorney's fees, and injunctive relief. Franklin contends that he was denied twelve months experience credit as an apprentice printer, that he lost wages because the twelve month experience credit was denied, that he was discharged, and that the local union refused to represent him. He alleges that all of these things occurred solely because of his race. Crosby Typesetting Company, Inc. contends that it discharged Franklin for cause. The union contends that it did adequately represent Franklin but that it was unable to help him because he failed to give notice of his grievance within seventy-two hours of the act complained of as required by the employment contract. The case was tried before the Court on December 9, 10, and 15, 1975, and based on the evidence produced at trial the Court makes the following findings of fact and conclusions of law.

Morris W. Franklin, a Negro, was hired by Crosby Typesetting Company on March 29, 1967, as a deliveryman. His duties consisted of delivering proofs, wrapping prints, and performing various jobs in the shop. In 1968, Ted Wilkenson, owner and president of Crosby Typesetting, suggested that Franklin apply for union membership as an apprentice printer. Franklin agreed and Wilkenson recommended him to the union.1 On May 5, 1968, Morris W. Franklin was initiated into International Typographical Union, Local 198. There was no discussion at the union meeting that Franklin be accorded any experience credit for his job as deliveryman, but Wilkenson did tell him that he would be compensated at a rate sufficient to prevent a reduction in pay from the wages he received as a deliveryman.

Franklin worked as an apprentice from May 5, 1968, until December 31, 1970. In his first two years as an apprentice Morris Franklin was a model employee. During this period he made excellent grades on his apprentice lessons, he apparently had no complaints regarding his employment situation, and his fellow employees had no complaints about him or his work.

Following a reduction in his overtime hours in April 1970 and consequently a reduction in his pay, Franklin inquired about his rate of pay in May 1970.2 The company told him his hourly rate of pay and that it was in conformity with the contractual provisions for an apprentice with his experience. The plaintiff did not complain to either the company or the union that he had not received all the experience credit to which he claimed he was entitled.

Approximately six months prior to the Plaintiff's discharge, his fellow employees began to complain about the manner in which he cleaned type. The method objected to involved banging type against either a metal or stone counter in an attempt to remove burrs.3 The testimony of every witness except the Plaintiff revealed that slamming the type created a loud and startling noise. Further, this startling noise was both disruptive to work and produced a risk of harm to various machine and saw operators in the vicinity of the Plaintiff's work.4 Various employees complained of the noise and on four separate occasions the danger was explained to the Plaintiff and he was warned to discontinue slamming the type.5 Paul Markgraft, the assistant foreman, testified that after each warning the Plaintiff discontinued his excessive banging of the type for a period of time. The Plaintiff testified that he was warned not to slam the type on several occasions, but he denies he cleaned the type any differently from the other employees.

In the fall of 1970 Mr. Richard L. Clayton was appointed Chairman of the Apprentice Committee of Local 198. Mr. Clayton visited each chapel in the local union and attempted to talk to every member including apprentices. Clayton testified that the Plaintiff had no complaints of any problem regarding his job situation. Clayton did warn Franklin, however, that there had been several complaints regarding his loud slamming of type. The Plaintiff responded to this warning by stating that he would try to watch the noise.

In mid-December 1970 the Plaintiff was again warned by both the president and the foreman of the company that there were complaints regarding his continued slamming of type. Mr. Wilkenson discussed the situation privately with the Plaintiff, and determined that the disruptions were intentional. On December 31, 1970, the Plaintiff again slammed his type in a loud disruptive manner. Mr. Paul Markgraft, the assistant foreman, witnessed the disturbance and fired the Plaintiff pursuant to direct authority given him by the foreman. Mr. Wilkenson appeared immediately at the scene of the firing and upon learning the facts confirmed that Franklin was fired and directed him to draw his time.

On January 13, 1971, the Plaintiff filed a claim for unemployment benefits with the Texas Employment Commission. His application admits his practice of slamming type and his failure to discontinue that practice after being warned.6 The claim for unemployment benefits was opposed by the company on the basis that the discharge was for misconduct. The Commission found the discharge was for cause and denied the Plaintiff's claim. The Plaintiff appealed the decision and after a complete administrative hearing conducted before the Texas Employment Commission Appeal Tribunal, the Plaintiff was found to have been discharged for misconduct and he was disqualified from receiving unemployment benefits for six weeks. The Appeals Tribunal decision was affirmed on appeal by the Texas Employment Commission on March 16, 1971.

The Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission on February 6, 1971. Franklin's complaint alleged that he was denied twelve months credit and discharged from his employment because of the concerted racial discrimination of both the union and the company.

On February 12, 1971, Franklin contacted the Secretary-Treasurer of Local 198 and told him of his discharge. The Secretary-Treasurer referred the Plaintiff to Charles Renfro. Subsequently, the Plaintiff contacted Charles Renfro, president of Local 198, and complained of his discharge and rate of compensation. Renfro explained to the Plaintiff that he was untimely in his complaint but that he would do whatever possible under the circumstances to obtain reinstatement or back wages. Renfro met with the company but they refused to either reinstate the Plaintiff or pay him any amount of alleged back wages. Renfro reported these results to Franklin and stated that there was nothing more the union could do. Franklin then contacted the International Union by letter on two occasions. Subsequent to each letter, the local union met with Franklin, and at the second meeting in May 1971 the Executive Council again informed the Plaintiff that he was untimely in complaining of his discharge and that there was nothing the union could do.

In March 1971, Jerry Mendez, a member of the Apprenticeship Committee, contacted the Plaintiff and was informed that he no longer sought to be employed in the printing industry. In July 1971, the Plaintiff was refunded the dues he paid from January through June 1971. He was told that he would be continued on the job list and referred out at the first opportunity. The records reflect that the Plaintiff was suspended from the union on January 10, 1971. The testimony indicated that suspension meant that the individual was still a member in good standing of the union, but that he was not presently employed in a printing position and it was unnecessary for him to pay dues until he was so employed.

The Plaintiff bases his claim of jurisdiction over the defendants on three statutes. First, he contends jurisdiction is founded on 42 U.S.C. Section 1981. The Defendants contend that any claim based on 42 U.S.C. Section 1981 is barred by the Texas statute of limitations. The Court agrees. The action complained of in this suit occurred on December 31, 1970, and the suit was filed on September 13, 1974. The Supreme Court stated in Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), that an action brought under 42 U.S.C. Section 1981 must be filed within the applicable limitation period provided by state law and that the filing of a Title VII charge did not toll that limitation period. The Fifth Circuit Court of Appeals has held that the applicable Texas statute in Section 1981 actions is Tex.Rev.Civ.Stat. Ann. art. 5526 which provides for a two year limitation period. Johnson v. Goodyear Tire and Rubber Co., 491 F.2d 1364, 1378-79 (5th Cir. 1974); Guerra v. Manchester Terminal Corp., 498 F.2d 641, 647-48 (5th Cir. 1974). The Plaintiff's suit was filed more than two years after his discharge and his claim under 42 U.S.C. § 1981 is therefore barred.

The Plaintiff also contends that this Court has jurisdiction based on 42 U.S.C. § 2000e et seq. The Court finds that jurisdiction is proper under that statute.

A determination that Crosby Printing Co., Inc. discriminated against the Plaintiff in employment because of his race in violation of 42 U.S.C. Sections 2000e, et seq. is essentially a question of fact. Bradington v. International Business Machines, 360 F.Supp. 845 (D.Md. 1973), aff., 492 F.2d 1240 (4th Cir. 1974). In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court allocated the burden...

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