Love v. Temple University-Of the Cmwlth. Sys. of H. Ed., Civ. A. No. 72-1717.

Decision Date25 October 1973
Docket NumberCiv. A. No. 72-1717.
Citation366 F. Supp. 835
PartiesAda 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.
CourtU.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.

HIGGINBOTHAM, District Judge.

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:

"The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part "(a) to protect a class of persons which includes the one whose interest is invaded, and
"(b) to protect the particular interest which is invaded, and
"(c) to protect that interest against the kind of harm which has resulted, and
"(d) to protect that interest against the particular hazard from which the harm results."

Furthermore, federal courts have been instructed that "where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief. And it is also well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." 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:

"A reading of the statute Section 6(d) of the Fair Labor Standards Act and its legislative history does not disclose a purpose to make the union jointly liable in damages, but rather to give the Secretary of Labor power to enjoin violations of the Fair Labor Standards Act where a union is responsible, as well as power to enjoin employers from future violations and require payment for past ones. 29 U. S.C. § 215(a)(2) makes it unlawful for any person to violate any of the provisions of Section 206, and 29 U.S. C. § 217 gives the District Courts jurisdiction to restrain violations of section 215 (a) (2) where there has been a withholding of payments found by the court to be due to employees under the chapter. If the courts are given the express power to restrain the withholding of payments due employees by reason of past sex discrimination in violation of the Act it is impliedly only given that power against the employer, for the union would not be `withholding . . . payment of minimum wages . . .'. Therefore, the only power given the District Courts against unions by this Act would be an injunction under section 217 to restrain the conduct prohibited in section 206(d)(2)." 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:

"This does not mean, however, that a suit could never lie in a third-party complaint against a union for contribution in a case arising under this Act, for a third-party plaintiff may state a claim grounded upon common law theories of recovery, or upon the evolving body of federal labor law being fashioned by the federal courts. If, as in the instant case, the third party complaint were on its face proper under Rule 14 of the Federal Rules of Civil Procedure, the fact that the Secretary of Labor did not originally join the union would not bar the third-party complaint and force a separate suit, for that would contravene the very purpose behind the existence of Rule 14." 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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