Johnson v. City of Albany, Ga.

• Decision Date: 06 May 1976
• Docket Number: Civ. A. No. 1200.
• Parties: Johnnie JOHNSON, Jr., et al., Plaintiffs, v. The CITY OF ALBANY, GEORGIA, a Municipal Corporation, et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

413 F. Supp. 782

Johnnie JOHNSON, Jr., et al., Plaintiffs, v. The CITY OF ALBANY, GEORGIA, a Municipal Corporation, et al., Defendants.

Civ. A. No. 1200.

United States District Court, M. D. Georgia, Albany Division.

May 6, 1976.

COPYRIGHT MATERIAL OMITTED

C. B. King, King & Phipps, Herbert E. Phipps, Albany, Ga., for plaintiffs.

James V. Davis, Landau & Davis, Albany, Ga., for defendants.

OWENS, District Judge.

In the fall of 1971 plaintiff Julian Arthur Mayo, a City of Albany water department employee since 1955, and plaintiff Johnnie Johnson, a City of Albany public works department employee since 1958, through the Albany, Georgia, labor council contacted the Laborers International Union of North America, AFL/CIO, and as a result that union sent two of its full-time paid organizers — E. G. Bartlett and Alfred Hazel — to Albany during late 1971 to talk with them and other city employees about organizing city employees. Mr. Bartlett and Mr. Hazel met with a group of city employees and learned of their employee concerns which included segregated restrooms, segregated water fountains and blacks being paid less than whites for the same job. After the initial meeting Mr. Bartlett and Mr. Hazel remained in Albany and began meeting at least weekly with city employees. Those meetings were held to convince city employees that their concerns could best be remedied by joining and being represented by the Laborers International Union. In late March or early April Mr. Bartlett, Mr. Hazel and various employee representatives requested and obtained a private meeting with the late Mayor Motie M. Wiggins. No other city officials were present. According to Mr. Bartlett, he as the spokesman told Mayor Wiggins "of the conditions that prevailed in the City of Albany, discrimination relative to rates, the segregated restrooms and other areas of the city, the problems. I asked him for — we wanted a way of achieving recognition either by an election or by card check. He questioned whether we represented them or not and I showed him a stack of possibly two hundred and some odd authorization membership cards. He said that he did not have the authority to recognize us but would get us a meeting with the full council . . .." Record at 41.

A few days later on April 5, 1972, a meeting was held between the Mayor, Albany's five Commissioners, Mr. Bartlett, Mr. Hazel and employee representatives. Other city officials including City Manager S. A. Roos were present. A tape recording, Exhibit D-3, of that meeting shows that Mr. Bartlett acted as chief spokesman. The meeting lasted about thirty minutes and included both Mr. Bartlett's impassioned plea for union recognition and questions asked by city officials and answered by Mr. Bartlett and Mr. Hazel. Mr. Bartlett mentioned that employees had many grievances and when questioned about those indicated that the main grievance was unequal treatment. While grievances were mentioned Mr. Bartlett always returned to and stuck with his request for a bargaining agreement with the city to include an agreement not to strike and compulsory arbitration of grievances. Mr. Bartlett identified the employees he represented as being blue collar employees of the public works and water, gas and light departments. Asked what would happen if the city chose not to negotiate, Mr. Bartlett responded that the decision would be left to the members of Local 1309, an already chartered local union composed of these blue collar workers. Questioned extensively on whether or not the City of Albany could legally recognize and bargain with a union, Mr. Bartlett suggested they could, and Mayor Wiggins indicated he had been told by a labor lawyer that the city could not. With Mr. Bartlett stressing the benefits of union recognition to the city and its employees — "if you work for a living, you need a union to represent you" — the meeting concluded with an indication from Mayor Wiggins that the matter would be taken under advisement.

By letter dated April 18, 1972, Exhibit D-2, the City of Albany advised that a decision was made that morning to deny the request of Laborer's Local 1309 for recognition and collective bargaining.

The following day, Wednesday, April 19, plaintiff Johnnie Johnson in the early morning got into a dispute with his boss, Mr. Gilbert, the City Building Inspector, over not being paid the previous Friday pay-day for the two days he spent in connection with employee meetings. An argument ensued, and Mr. Gilbert told him "if you can't do what I say on my job you hit the gate." Record at 17. He told Mr. Gilbert "to take it as he wanted it and he said, `You're fired', just like that." Record at 18. Plaintiff Johnson told other employees of being fired, and other black employees walked off the job. As he described it: "they said, `If you go, we go.' . . . `We are one hundred percent with you.'" Record at 18. The news of the firing of plaintiff Johnson and of the walkout spread rapidly and as fast as it spread black employees of the public works and water, gas and light departments walked off the job. At the peak of the walkout it is estimated that some 260 black employees had walked off.

After the walkout or strike began Mr. Hazel and about 100 black employees went to see City Manager Roos, met with him and asked what the city's position was. Mr. Roos asked Mr. Hazel and those present to request employees to come back to work and told them that those employees who fail to return to work within 24 hours would be fired. The Mayor and Commissioners had already adopted this policy, and the Water, Gas and Light Commission had concurred. The following Monday the city began hiring new employees to take the place of striking employees.

The strike continued; the city did not alter its position; the union furnished some money to the strikers; but soon they and the union ceased their efforts through striking to force the city to recognize and bargain with the union.

To the extent that job openings were available the city as to public works employees who returned within 90 days restored them to their former position without penalty other than subtraction of time absent from total time of employment. Water, Gas and Light employees who returned within 90 days were rehired as if they were new employees thus losing all longevity credit for pay and employee benefit purposes. Of a total of 124 terminated, 48 public works employees were rehired, and of a total of 62 terminated, 23 Water, Gas and Light employees were rehired. On April 24, 1972, charges of employment discrimination in violation of 42 U.S.C. § 2000e were filed with the Equal Employment Opportunity Commission in behalf of plaintiffs Culbreath, Foggy, Johnson, Mayo and Roberts.

On August 31, 1972, Johnnie Johnson, Jr. and Ernest Culbreath, as public works employees and Willie Foggy, June Mayo, Lindberg Roberts and Julius Cobb, as Water, Gas and Light employees filed their complaint alleging a cause of action under 42 U.S.C. § 1981¹ and § 1983² and the Fourteenth Amendment³ against the City of Albany, a municipal corporation; the individual persons then constituting the Board of City Commissioners, to wit: Motie Wiggins, Proctor M. Johnson, Jr., T. W. McCorkle, B. C. Gable, Harry Goldstein, Richard H. Rhodes and J. B. Lanier; S. A. Roos, City Manager; the Water, Gas and Light Commission of the City of Albany; the individual members of the Board of the Water, Gas and Light Commission, to wit: James B. Holloway, Walter Keenan, Sam Meeks and William P. Westbrook; and W. W. Rodemann, General Manager of the Water, Gas and Light Commission. In their complaint they sought to proceed individually and as representatives of all others similarly situated pursuant to Rule 23 of the Federal Rules of Civil Procedure, the class action rule.

On April 13, 1975, the Department of Justice of the United States by letter advised those plaintiffs in whose behalf EEOC complaints were filed of their right to sue under 42 U.S.C. § 2000e, and their complaint was amended to allege a cause of action thereunder.

Since a municipal corporation is not a person within the meaning of 42 U.S.C. §§ 1981 or 1983, Bennett v. Gravelle, 323 F.Supp. 203 (D.Md.1971), aff'd. 451 F.2d 1011 (4th Cir. 1971), the City of Albany has been dismissed as a party defendant as to those causes of action, but remains a defendant as to all other alleged causes of actions.

On the basis of stipulated facts the court determined by Order dated October 2, 1974, that this action could be maintained as a class action pursuant to Rule 23(a), (b)(2), and (3), Federal Rules of Civil Procedure. At the expense of plaintiffs individual "opt-out" class action notices were mailed by the clerk to all discharged black employees and all present black employees. Four hundred ninety-nine (499) notices were mailed. Of those 104 were returned undelivered and have not since been delivered. Of the 395 who received notices 79 requested exclusion from the class. The class therefore consists of a total of 316 persons. As finally defined it includes for purposes of injunctive relief "All past, present and future Black employees; including applicants for employment with the City of Albany or the Water, Gas and Light Commission" and for all other purposes "All past and present Black employees of the City of Albany or the Water, Gas and Light Commission." Order of March 8, 1976.

The plaintiffs allege that the defendants are engaged in a pattern or practice that discriminates on the basis of race against black job applicants, incumbent black employees and black dischargees. They allege that it was the pursuit of this discriminatory pattern or practice that caused the discharge of black employees who were lawfully and constitutionally protesting the matters herein complained of. The defendants denied these allegations and further asserted that the firing or termination of black employees resulted solely from their unlawfully striking to...