Love v. Temple University-Of the Cmwlth. Sys. of H. Ed., Civ. A. No. 72-1717.
Decision Date | 25 October 1973 |
Docket Number | Civ. A. No. 72-1717. |
Citation | 366 F. Supp. 835 |
Parties | Ada LOVE et al. v. TEMPLE UNIVERSITY—OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, Defendant and Third-Party Plaintiff, v. The INTERNATIONAL BROTHERHOOD OF UNIVERSITY EMPLOYEES et al. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Peter Platten and Richard Z. Freemann (Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa.), for defendant and third-party plaintiff, Temple University.
Richard B. Sigmond (Meranze, Katz, Spear & Bielitsky, Philadelphia, Pa.), for third-party defendants, Building Service Employees, International Union (Local 69) and David M. Russo, Trustee ad litem.
Robert J. Sugarman (Dechert, Price & Rhoads, Philadelphia, Pa.), for thirdparty defendants, International Brotherhood of University Employees, Earl Mack, Willie L. Reeves, Wesley Allen, William E. DeVan, Craig Bond, Melvin Reddish, Wilbur Love, James Moore, Ashmore Johnson, and Theophilus Woodson.
William J. Kilberg, Solicitor of Labor, Carin A. Clauss, Associate Solicitor of Labor, Washington, D. C., Louis Weiner, Regional Solicitor, Stephen K. Ernst, Atty., Philadelphia, Pa., for Secretary of Labor.
OPINION
This matter is before the Court on motions by the third-party defendants to dismiss a third-party complaint filed against them by Temple University (hereinafter referred to as "Temple"). The third-party defendants include the Building Service Employees International Union, Local No. 69 ("Local 69"); the International Brotherhood of University Employees ("IBUE"); David M. Russo, Earl Mack; Willie L. Reeves, Wesley Allen, William E. DeVan, Craig Bond, Melvin Reddish, Wilbur Love, James Moore, Ashmore Johnson, and Theophilus Woodson. The named individuals, excluding David M. Russo who is a trustee ad litem for Local 69, are or had been officers, shop stewards and/or negotiating committee members of IBUE.
The question presented is whether an employer sued for violating the Equal Pay Act of 1963, Section 6(d)(1) of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 206(d)(1),1 can implead a labor organization seeking reimbursement for any damages which might be incurred as a result of violations of said Act? The issue is in some ways apparently one of first impression, though language on this precise point can be found in several decisions. Because of the significance of any ruling, the Secretary of Labor who is responsible for the administration and enforcement of the Act, has requested and been granted leave to file a brief as amicus curiae.2 For reasons which follow, the Court finds that the motions to dismiss as to Local 69 and David M. Russo will be granted, but rulings on motions of the other third-party defendants will be reserved at this juncture until the conclusion of trial once all the evidence has been adduced and the Court has a complete factual record before it.
The facts are not complex and can be stated in an abbreviated fashion.
Last Fall, several females who have been employed by Temple in the capacity of "cleaners" or "maids", instituted an action against Temple under Section 16(b) of the Act, 29 U.S.C. § 216(b),3 for non-compliance with the equal pay provisions of the Act. The complaint alleged that under the governing collective bargaining agreements (1) employees classified as "janitors" received higher wages than the maids or cleaners; (2) only men were hired as janitors and only women as maids; (3) the duties performed by each group were essentially identical.
Temple filed a third-party complaint against the above-named unions and individuals, contending that if Temple breached the Act it did so only because the unions and their agents caused it to pay the differential wages in contravention of Section 6(d)(2) of the Act, 29 U.S.C. § 206(d)(2).4 In support of this allegation Temple asserts that the collective bargaining agreements specified that janitors be paid at a higher rate than maids and that this wage structure was proposed and designed solely by the unions.
The only other facts which need be preliminarily mentioned are that from August 1, 1968 to June 30, 1970, Local 69 was the collective bargaining representative for Temple and the designated employees in question. Local 69 was thereafter replaced by IBUE which has been the relevant labor organization from July 1, 1970 to the present.
I.
At the outset it should be emphasized that Temple acknowledges that there is no explicit statutory authority in the Fair Labor Standards Act or anything in the legislative history which specifically recognizes or creates a civil cause of action in the employer for recovery of damages against a labor organization. Temple argues, however, that federal courts can and in fact have in the past fashioned a federal remedy where a federal right existed but there was no extant remedy to protect or enforce that right. Accordingly, Temple urges that this Court, either by premising the appropriate relief on its equitable powers or bottoming it on common law tort principles, provide the remedy necessary for complete implementation and effectuation of any rights which require vindication.
Initially, the Court notes that tort liability will be imposed on an individual whose conduct has been proscribed by certain legislation. The Restatement (Second) of Torts § 286 (1965) has enunciated the criteria as follows:
Furthermore, federal courts have been instructed that Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 777, 90 L.Ed.2d 939 (1946). Accord, e. g., Kardon v. National Gypsum Co., 69 F.Supp. 512 (E.D.Pa.1946); J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Gomez v. Florida State Employment Service, 417 F.2d 569 (5th Cir. 1969).
In Wirtz v. Hayes Industries, Inc., 58 CCH Lab.Cas. ¶ 32,085, at 43,556 (N.D.Ohio 1968) a court for the first time considered whether in an equal pay suit there was any substantive basis for a third-party complaint by the employer against the union.5 In ruling that a federal court lacked power to grant monetary relief to an employer who had allegedly been the victim of a Section 6(d)(2) violation, the Court offered the following insights and observations:
. Id. at 43,557-43,558.
Wirtz v. Hayes Industries, Inc., supra, can arguably be explained away by the alternative holding of the Court that irrespective of whether there could be a cause of action against a union, it was unchallenged that under the facts of that particular case, the third-party defendant was entitled to a motion for summary judgment pursuant to Fed.R. Civ.P. 56. Rather than causing the alleged discrimination, the union had "consistently attempted to abolish all differentiation between male and female press operators as to the rates of pay received." Id. at 43,558.
Moreover, the Court in the Hayes case carefully limited the scope of its ruling on the motion to dismiss the complaint by saying:
Id. at 43,558.
A similar result was reached in Murphy v. Miller Brewing Co., 307 F.Supp. 829, 839 (E.D.Wis.1969), where there the Court concluded that the...
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