Holliday v. Railway Express Company, Inc.

• Decision Date: 08 December 1969
• Docket Number: Civ. A. No. 12987.
• Citation: 306 F. Supp. 898
• Parties: Clinton H. HOLLIDAY, for Himself and All Others Similarly Situated v. RAILWAY EXPRESS COMPANY, Inc. and Local Unions 2040 and 2281, Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO.
• Court: U.S. District Court — Northern District of Georgia

306 F. Supp. 898

Clinton H. HOLLIDAY, for Himself and All Others Similarly Situated v. RAILWAY EXPRESS COMPANY, Inc. and Local Unions 2040 and 2281, Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO.

Civ. A. No. 12987.

United States District Court N. D. Georgia, Atlanta Division.

December 8, 1969.

Howard Moore, Jr., Peter E. Rindskopf, Atlanta, Ga., Jack Greenberg, Vilma Singer, New York City, for plaintiff.

Dale M. Schwartz, Atlanta, Ga., for Railway Express Co., Inc.

Tom Watson Brown, Atlanta, Ga., for Local Unions 2040 and 2281.

ORDER

EDENFIELD, District Judge.

We have before us motions to dismiss or in the alternative for summary judgment, filed by the defendant local unions.

Plaintiff, a Negro, began working for Railway Express Company in 1962, as a laborer, loading and unloading trucks, and became a member of Local 2281. On May 22, 1967, along with numerous other Negro employees, plaintiff filed charges with the Equal Employment Opportunity Commission alleging that Railway Express discriminated on grounds of race in their employment practices and maintained segregated restroom facilities. The defendant unions were charged with the failure to adequately represent Negroes, in terms of promotions within the company, and with maintenance of segregated locals, Local 2281 being all black, and Local 2040 all or heavily white. The official report of the Commission states that the employer, Railway Express, was served with a copy of the charges on June 26, 1967, and the defendant unions on July 27, 1967. While Railway Express admits receipt of the charges, the local unions urge that they were not served with the charges, and knew nothing about them until 1969. The Commission on March 7, 1969, found that reasonable cause existed to believe that both the employer and the unions engaged in unlawful practices in derogation of rights protected by Title VII of the Civil Rights Act of 1964. The Commission's investigation indicated that Railway Express in Atlanta employed approximately 800 persons, 283 of whom were Negroes, and that 95% of the Negro employees were classified as laborers. The Commission further found that Negro employees were precluded from holding positions above that of transfer clerk and that the company's promotion policies were discriminatory. The Commission stated that the company's subsequent installation of a door connecting the white and Negro bathroom facilities did not bring the facilities into compliance with Title VII of the Act. As to the local unions, the Commission found that the unions were segregated and that the segregated representation, by itself, precluded fair and equal representation of Negro union members, without analyzing the merits of the various instances cited by the complainants. On July 11, 1969, plaintiff allegedly received a letter from the Commission authorizing a suit in federal court within 30 days.

On October 3, 1968, during the pendency of the plaintiff's initial complaint with the Commission, the plaintiff was charged with the violation of certain company rules, namely Rule 70(a) which proscribes drinking liquor, gambling, or use of vulgar or abusive language, and Rule 64, which requires employees to comply with the instructions of their supervisors. A hearing was held on October 10, 1968, at which plaintiff was represented by Mr. Joe Ingram, Local and Vice Chairman of the Brotherhood of Railway Clerks. On October 16, plaintiff was found guilty and his employment with Railway Express was terminated on the following day. Mr. Ingram, on the plaintiff's behalf, appealed this decision to the highest officer on the property of Railway Express in Atlanta designated to handle such matters, Mr. J. R. Sowell, City Manager for Railway Express in Atlanta. On November 11, 1968, Mr. Sowell sustained the guilty finding. Two days later Ingram requested Mr. W. A. Johnson, General Chairman for Railway Express employees in Atlanta, to further appeal plaintiff's termination, and on November 22, 1968, such an appeal was made to the Regional Vice President of Railway Express. No further appeals were taken and no decision by the Regional Vice President was made, after plaintiff filed, on November 5, 1968, a second charge with the Equal Employment Opportunity Commission.

The unions admit that they were served with a copy of plaintiff's second complaint before the Commission. In his second complaint plaintiff charged that Railway Express had terminated his employment in retaliation for the initial discrimination complaint filed with the Commission, and charged the unions with failure to properly represent him in grievance procedures leading to his dismissal.

On July 10, 1969, the Regional Director of the Commission informed Railway Express and the local unions that plaintiff had requested authorization to institute a civil suit in federal court. This request was made, according to plaintiff, so that when plaintiff filed suit on his first complaint, he might also include those acts of discrimination complained of in his second complaint to the Commission, to avoid a multiplicity of actions. Under the Commission's regulations, 29 C.F.R. § 1601.25a(b), "the Commission shall not issue a notice pursuant to § 1601.25 prior to a determination under § 1601.19 or, where reasonable cause has been found, prior to efforts at conciliation with respondent, except that the charging party or the respondent may upon the expiration of 60 days after the filing of the charge or at any time thereafter demand in writing that such notice issue, and the Commission shall promptly issue such notice to all parties." In its July 10 letter, the Commission stated that it was issuing notice to the charging party and that the Commission was willing to offer its services in an effort to resolve the matter through conciliation. Thus, on July 11, 1969, authorization to sue was granted on the initial charge to the Commission and on August 1, 1969, authorization was given on the second complaint. On August 5, 1969, this suit was filed in federal court, incorporating the issues raised in both the first and second charge.

The defendant unions base their motion to dismiss on the unions' alleged failure to receive copies of the initial charges to the Commission and on the Commission's failure to make a finding of probable cause as to the second complaint filed with the Commission.

Under 42 U.S.C. § 2000e-5(a), after the complainant files a charge with the Commission, "the Commission shall furnish such employer, employment agency, or labor organization * * * with a copy of such charge." It is defendants' contention that the Commission's alleged failure to serve the unions with charges as to plaintiff's initial complaint is cause for dismissal of this civil suit in federal court. We cannot agree.

First, the Commission's records clearly indicate that the unions were served on July 27, 1967, with a copy of the plaintiff's initial charge, thus creating a dispute of fact not resolvable on the cold record as it stands. Second, the local unions did receive, by their own admission, notice of the charges from the AFL-CIO in March, 1969, after the Commission's finding of probable cause was issued. Moreover, the second complaint filed with the Commission, a copy of which was admittedly given to the unions, makes reference to the initial charge. Defendants contend that they were denied an opportunity to conciliate, due to the failure to receive a copy of the charges. However, they received notice, as noted above, long before this action was filed in federal court, yet they initiated no conciliation efforts. Third, the failure of the Commission to supply respondents with a copy of the charges should not be a fatal bar to a private action in federal court. Mondy v. Crown Zellerbach Corp., 271 F.Supp. 258 (E.D. La.1967), rev'd. on other grounds, Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (1968), cf. Pullen v. Otis Elevator Co., 292 F.Supp. 715 (N.D.Ga.1968); International Brotherhood of Electrical Workers Local Union No. 5 v. United States EEOC, 398 F.2d 248 (3d Cir. 1968), cert. denied, 393 U.S. 1021, 89 S.Ct. 628, 21 L.Ed.2d 565, reversing 283 F.Supp. 769 (W.D.Pa.1967). One judge in this district has held to the contrary. Long v. Georgia Kraft Co., 71 LRRM 2016 (N.D.Ga.1969); Long v. Georgia Kraft Co., 71 LRRM 2018 (N.D.Ga. 1969), in two holdings with which this court must respectfully disagree. There are but a few jurisdictional prerequisites to suit, among which are a charge properly filed with the Commission against the parties named in the civil suit, and receipt by the complainant of statutory notice that the Commission has been unable to secure voluntary compliance through conciliation, followed by a filing within 30 days. Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir. 1967), cert. denied, 389 U.S. 877, 88 S.Ct. 177, 19 L.Ed.2d 166; Dent v. St. Louis-San Francisco Ry., 406 F.2d 399 (5th Cir. 1969); Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th Cir. 1968).

Thus, for example, even though the Commission has the affirmative obligation to attempt conciliation under § 2000e-5(a), (c), its failure to act cannot bar the plaintiff's right of action. The basis of this decision is that "the complainant should not be made the innocent victim of a dereliction of statutory duty on the part of the Commission." Choate, supra, at 361. Likewise, the statutory failure of the Commission to serve charges on the defendants should not bar the plaintiff's...