Kirker v. Moore

Decision Date12 January 1970
Docket NumberCiv. A. No. 69-61.
Citation308 F. Supp. 615
PartiesLyle KIRKER, Secretary-Treasurer and Business Manager of the Laborers' District Council of Charleston, West Virginia, Laborers' District Council of Charleston, West Virginia, and Vernon R. Gollihugh et al., Plaintiffs, v. Arch A. MOORE, Jr., individually and in his capacity as Governor of the State of West Virginia, William S. Ritchie, individually and in his capacity as State Road Commissioner of the State of West Virginia, Ted R. Riffle, individually and in his capacity as Cabell County Supervisor of the State Road Commission of West Virginia, and State Road Commission of West Virginia, Defendants.
CourtU.S. District Court — Southern District of West Virginia

Jules Bernstein, Washington, D. C., and James B. McIntyre, Charleston, W. Va., for plaintiffs.

F. Paul Chambers, John R. Lukens and Louis Southworth II, Jackson, Kelly, Holt & O'Farrell, Charleston, W. Va., for defendants Governor Arch A. Moore, Jr., William S. Ritchie, State Road Commission and Ted R. Riffle in his official capacity as county road supervisor.

Richard E. Tyson, Huntington, W. Va., for Ted R. Riffle individually.

MEMORANDUM OPINION

FIELD, Chief Judge.

This action was instituted by Lyle Kirker in his capacity as Secretary-Treasurer and Business Manager of the Laborers' District Council of Charleston, West Virginia (hereinafter referred to as "Council") which is a labor organization and a voluntary unincorporated association affiliated with the Laborers' International Union of North America, AFL-CIO, the Council itself, and 20 individual citizens of West Virginia, which individual plaintiffs allege that they bring this action on behalf of themselves and "all of the approximately 3300 employees of the West Virginia State Road Commission who are similarly situated." The defendants are Arch A. Moore, Jr., Governor of West Virginia, William S. Ritchie, State Road Commissioner of West Virginia, and Ted R. Riffle, Cabell County Supervisor of the State Road Commission of West Virginia, each in their capacity as public officers and as individuals. Additionally, the State Road Commission of West Virginia is named as a defendant herein.

The complaint alleges that this action arises under the Civil Rights Act of 1871, 42 U.S.C. Section 1983, to redress the deprivation by the defendants, acting under color of the laws of the State of West Virginia, of the rights, privileges and immunities secured and guaranteed to the plaintiffs by the first, fifth and 14th amendments to the Constitution of the United States as well as under the constitution and laws of the State of West Virginia. Jurisdiction is based on 28 U.S.C. Sections 1331 and 1343.

The complaint states that prior to March 11, 1969, the employee-plaintiffs were employed by the State Road Commission of West Virginia and that on that date the defendant, Arch A. Moore, Jr., acting under color of the laws of the State of West Virginia discharged employee-plaintiffs. The complaint alleges that this action by defendant Moore was in violation of the designated amendments to the Federal Constitution and the constitution and laws of the State of West Virginia in the following respects:

(1) Defendant Moore lacked authority under the constitution and laws of the State of West Virginia to discharge the employee-plaintiffs.

(2) The discharge of the employee-plaintiffs was the result of their union affiliation and activity and as such contravened their rights to petition for redress of grievances and to engage in free speech and association guaranteed to them under the constitutions of the United States and the State of West Virginia.

(3) The discharge of employee-plaintiffs was for the purpose of effectuating the "spoils system" of political patronage in West Virginia, which system violates the designated amendments to the Federal Constitution as well as certain provisions of the constitution of the State of West Virginia.

(4) The refusal of the defendant Ritchie, as State Road Commissioner, to meet and confer with the representatives of the employee-plaintiffs relative to the redress of grievances arising out of their employment violated their rights under the designated amendments to the Federal Constitution as well as certain provisions of the constitution of the State of West Virginia.

(5) Plaintiffs were discharged from their employment without proper notice, written specific charges, opportunity for a hearing, right of confrontation and defense and other incidents of due process of law to which they are entitled under the designated amendments to the Federal Constitution and provisions of the constitution of the State of West Virginia.

The complaint seeks relief as follows:

(1) An order setting aside and nullifying the discharge of the employee-plaintiffs from their employment;

(2) Judgment against the defendant Moore and the Commissioner, jointly and severally, in favor of the employee-plaintiffs to reimburse them for their loss of income resulting from their discharge from March 11, 1969, to the date of judgment;

(3) A mandatory injunction requiring defendant Ritchie to meet and confer with plaintiff Kirker, as representative of the employee-plaintiffs, for the purpose of discussing redress of the grievances of the employee-plaintiffs;

(4) An injunction prohibiting the defendants Ritchie and Riffle, together with any other agent or employee of the Commission, from discriminating among employees or applicants for employment of the Commission on the basis of political or union affiliation or activity;

(5) An award of exemplary damages from the defendants, jointly and severally, in the amount of $250,000, together with reasonable attorneys' fees and costs.

Each of the defendants, Moore, Ritchie and Riffle, in their official capacities and as individuals, have filed motions to dismiss this action, and by leave of the Court the defendants, Moore and Ritchie, were also permitted to file their answer to the complaint prior to the Court's disposition of the dismissal motions. The plaintiffs filed a motion for a determination that the action is properly maintainable as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure, and also filed a motion for a preliminary injunction. All of these motions were brought on for hearing and argument on August 19, 1969, and at the conclusion thereof the Court advised counsel that the plaintiffs' motion for a temporary injunction would be denied and that the disposition of the remaining motions would be taken under consideration. In response to the joint request of counsel for the parties, the Court directed a letter to them under date of September 13, 1969, setting forth specific findings of fact and conclusions of law relative to the motion for the temporary injunction pursuant to Rule 52(a) F.R.Civ.P. In addition to the pleadings filed by the respective parties, the affidavit of the plaintiff Lyle Kirker, and the affidavit of Oliver W. Singleton, Regional Director for Region VI, AFL-CIO, were filed on behalf of the plaintiffs and the affidavits of Arch A. Moore, Jr., and William S. Ritchie were filed on behalf of the defendants. In addition thereto at the hearing on the several motions counsel for the plaintiffs were permitted to file the affidavit of Cecil H. Underwood and counsel for defendants were permitted to file a memorandum dated July 7, 1969, directed to "THE STRIKING STATE ROAD COMMISSION EMPLOYEES" by the plaintiff Kirker. Counsel have also submitted briefs in support of their respective positions on these motions, the final brief having been received on September 22, 1969. To a large degree the facts incident to the disposition of these motions are undisputed, and my rulings thereon will be made based upon the pleadings, affidavits and exhibits to which reference has been made.

Briefly stated, the facts are as follows: The defendant Moore, the nominee of the Republican party, was elected Governor of West Virginia on November 5, 1968, and qualified and began his term of office on January 13, 1969. At the time of Moore's inauguration as Governor, the Legislature of West Virginia had already convened for its constitutional biennial 60-day session and continued in session until midnight on March 8, 1969. The defendant Ritchie was appointed Road Commissioner by Governor Moore effective February 1, 1969, which appointment was subject to confirmation by the Senate of West Virginia and was at the will and pleasure of the Governor.

Prior to the 1968 election, the plaintiff Kirker, as representative of the plaintiff Council, had been engaged in an organizing campaign to encourage employees of the Road Commission to designate the Council as their representative for the purpose of dealing with the Commission relative to conditions of employment, establishment of seniority rights, protections against wrongful discharge, grievance procedures and other matters customarily falling within the area of the collective bargaining process. In the organizing campaign the Council sought to obtain authorization cards from the employees of the Commission designating the Council as their representative. The authorization card contained the following language:

"I hereby designate the Laborers District Council of Charleston, W. Va. to represent me for the purpose of collective bargaining and in any and all other situations that may arise under the operation of the National Labor Relations Act and/or with any individual employer where the provisions of the National Labor Relations Act are not invoked."

Between August 24, 1968, and March 1, 1969, approximately 4,000 employees of the Commission signed such authorization cards.

Shortly after his appointment as Road Commissioner, Ritchie received a call from Don Smith, a representative of the Laborers' International Union of North America, AFL-CIO, who requested an appointment for himself and Kirker. Pursuant thereto, Ritchie...

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12 cases
  • Jefferson County Bd. of Educ. v. Jefferson County Educ. Ass'n
    • United States
    • West Virginia Supreme Court
    • 12 April 1990
    ...reached this conclusion in a case involving employees of the West Virginia State Road Commission who had gone on strike. Kirker v. Moore, 308 F.Supp. 615 (S.D.W.Va.1970), aff'd, 436 F.2d 423 (4th Cir.), cert. denied, 404 U.S. 824, 92 S.Ct. 49, 30 L.Ed.2d 51 Some jurisdictions have reinforce......
  • City of Fairmont v. Retail, Wholesale, and Dept. Store Union, AFL-CIO
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    ...presented in this case nor is the related issue of the right to discharge public employees who have engaged in a strike. Kirker v. Moore, 308 F.Supp. 615 (S.D.W.Va.1970), aff'd, 436 F.2d 423 (4th Cir. 1970), cert. denied, 404 U.S. 824, 92 S.Ct. 49, 30 L.Ed.2d 51 (1971); cf., Olshock v. Vill......
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