McFadden v. Baltimore Steamship Trade Association

• Decision Date: 03 January 1973
• Docket Number: Civ. No. 71-457-H.
• Citation: 352 F. Supp. 403
• Parties: Garris S. McFADDEN, Plaintiff, v. BALTIMORE STEAMSHIP TRADE ASSOCIATION et al., Defendants.
• Court: U.S. District Court — District of Maryland

352 F. Supp. 403

Garris S. McFADDEN, Plaintiff, v. BALTIMORE STEAMSHIP TRADE ASSOCIATION et al., Defendants.

Civ. No. 71-457-H.

United States District Court, D. Maryland.

January 3, 1973.

Whitworth Stokes and Boasberg, Hewes, Klores, Smith & Kass, Washington, D. C., for plaintiff.

Anthony A. Abato, Jr., and Cosimo C. Abato, Baltimore, Md., for defendants International Longshoremen's Association and Local 953, ILA.

Barrett W. Freedlander and Niles, Barton & Wilmer, Baltimore, Md., for defendant Terminal Shipping Co.

HARVEY, District Judge:

In this civil action, plaintiff, a Negro longshoreman, seeks injunctive relief and damages under Title VII of the Civil Rights Act of 1964 from International Longshoremen's Association (ILA), from one of its Locals (Local 953) and from Terminal Shipping Company (Terminal), a former employer. Also named as a defendant in the amended complaint was Steamship Trade Association of Baltimore, Inc. (STA), which plaintiff incorrectly referred to as "Baltimore Steamship Trade Association." STA's motion for summary judgment has previously been granted by the Court.

In Count 1 of the amended complaint, plaintiff alleges that the union defendants have violated 42 U.S.C. § 2000e et seq. by denying him membership in Local 953 and equal employment opportunities because of his race. Count 2 is based on § 301 of the National Labor Relations Act, 29 U.S.C. § 141 et seq., and alleges that the union defendants have violated their duty to fairly represent plaintiff as a member of the ILA. Count 3, like Count 1, is also brought under Title VII of the Civil Rights Act but names Terminal alone as the defendant. In Count 3, it is alleged that Terminal discharged plaintiff in 1969 as retaliation for his having filed charges of discrimination against that company with the Equal Employment Opportunity Commission (EEOC), in violation of 42 U.S.C. § 2000e-3(a). In his prayer for relief under Counts 1 and 2, plaintiff asks this Court to enjoin and restrain the union defendants from denying him employment as a checker and from denying him membership in Local 953. Under Count 3, plaintiff asks the Court to enjoin Terminal from intimidating him by firing or threatening to fire him for filing charges of discrimination. Plaintiff further seeks damages in the amount of $26,586 from the unions and $10,739 from Terminal, together with attorneys fees and costs.¹

The background facts

The history and racial composition of the ILA's two general cargo locals in the Port of Baltimore is discussed in some detail in this Court's opinion in United States v. International Longshoremen's Association, 319 F.Supp. 737 (D.Md. 1970), aff'd, 460 F.2d 497 (4th Cir. 1972), cert. den. 409 U.S. 1007, 93 S.Ct. 439, 34 L.Ed.2d 300 (1972).² Plaintiff is a member of Local 858 which at all times since it was formed in 1914 has been composed almost entirely of blacks. Local 829, since it was chartered in 1913, has been composed almost entirely of whites. In the ILA case, this Court held that the maintenance of separate locals for blacks and whites performing the same duties in the same geographical area violated § 703(c)(2) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(c) (2). As injunctive relief, it was ordered that Locals 829 and 858 should be merged into a single local and that such one remaining local should maintain a single hiring hall. This Court further ordered that the new local should undertake to adopt seniority system which was fair and objective for all its members, both black and white, and should take affirmative steps to require that the stevedoring companies in the Port employ mechanics, gearmen and foremen on the basis of ability and seniority rather than on the basis of race. However, this Court declined to order that the gang system of hiring longshoremen should be discontinued in the Port of Baltimore, requiring instead certain modifications of the existing system, as more fully set forth in the opinion. This Court's rulings on all of these points in the ILA case were affirmed by the Fourth Circuit, and the Supreme Court has recently denied certiorari.³

In addition to Locals 829 and 858, the large general cargo locals, there are other smaller labor organizations in the Port of Baltimore that represent longshoremen. These other ILA locals include No. 921 (the grain handlers' local), No. 1355 (the ship ceilers', cattle fitters' and carpenters' local), No. 1429 (the freight handlers' local), and the defendant Local 953 (the checkers' and tallymen's local). None of these small locals was named as a defendant by the government in the ILA case, and none is subject to the decree therein entered.

In the Port of Baltimore, STA represents all the stevedoring companies in the area and bargains collectively with all the ILA unions on behalf of its member companies. The collective bargaining agreement negotiated by these parties includes provisions applicable generally to all ILA locals and also other provisions specifically applicable to each separate local. The collective bargainin agreement between STA and ILA for the period October 1, 1968 through September 30, 1971 thus contains a "Checkers' and Tallymen's Agreement" which covers tallying and checking work done by members of Local 953 and by others referred for this work.

The principal duties of a longshoreman employed as a checker include checking cargo from dock to ship and ship to dock, noting its physical condition and count, and supervising the separation of cargo by bills of lading and sub-marks within the bills of lading. Other duties of a checker include checking cargo received from and delivered to trucks, lighters, barges, railroad cars and containers. Such work involves counting items of cargo, checking marks and numbers, making notations of the physical condition and measurement of cargo and other record keeping functions. While there are no specific details or special skills required for the performance of the duties of a checker, it is necessary that a checker be able to read and write legibly, have knowledge of and be able to understand shipping documents, and possess better than average mathematical ability.

Checkers' work is generally more desirable than general cargo work because of certain pay benefits and guarantees included in that portion of the collective bargaining agreement applicable to checkers and tallymen. For example, persons employed as general laborers or tractor operators under the jurisdiction of Locals 829 and 858 were guaranteed a minimum of 4 hours work under the agreement in effect during the contract years 1968 to 1971, while persons employed as checkers were guaranteed a minimum of 8 hours work under provisions of the same agreement applicable to those referred by Local 953.

Any longshoreman, whether a member of Local 953 or not, can apply for work as a checker. To do so, he must telephone the office of Local 953 between two o'clock P.M. and two-thirty P.M. on the day before the date that he will be available for work. His name is then placed by a representative of Local 953 on the "available for work" list. Between two-thirty P.M. and four o'clock P.M., stevedoring companies place their orders for checkers by telephone. After four o'clock P.M., each longshoreman seeking checkers' work again telephones the office of Local 953 and is advised whether his name has been reached on the list for checkers' work the next day. Referrals for work are made solely on the basis of seniority without regard to whether the individual whose name is on the list is a member of Local 953 or not. A longshoreman who has placed his name on the list and who has recorded a greater number of hours of checkers' work is therefore referred before one on the list with a lesser number of hours.

Plaintiff, who is 42 years of age, has been a member of Local 858 since February 19, 1957. Most of his work has been as a tractor operator, and like other longshoremen in the Port, plaintiff has worked for many different stevedoring companies depending on the availability of work. In the contract years between 1966 and 1971, plaintiff recorded the following hours of work:

                          Contract Year      Total Hours
                              66-67             1,637
                              67-68             1,824
                              68-69             1,502
                              69-70             1,265
                              70-71             1,183
                

His gross earnings from longshoring work were some $6800 for 1969, $7300 for 1970 and $7600 for 1971. In addition, plaintiff owns two music stores where he works when he is not employed as a longshoreman.⁴

Since 1968, plaintiff has sought work as a checker and in fact has been so employed on occasion during various contract years before the filing of this action. His checkers' work has been as follows:

                       Contract Year     Total Hours
                           67-68             51
                           68-69            134
                           69-70             53
                           70-71             16
                

In the contract years 1963-1966, a substantial part of plaintiff's employment as a longshoreman was spent working for Terminal as a tractor-driver. In the contract years from 1966 through 1969, plaintiff spent a considerably lesser portion of his time employed with Terminal. On or about May 24, 1969, plaintiff was discharged by Terminal, and although he has regularly worked for other companies since then, he has spent only a few hours in the employ of Terminal since that date.⁵

Plaintiff's claim under Count 1

In Count 1 of the amended complaint, plaintiff claims that the union defendants have denied him membership in Local 953 and have further denied him employment as a checker because of his race, in violation of 42 U.S.C. § 2000e-2(c). In opposing these contentions, the unions assert (1) that plaintiff has failed to satisfy the statutory prerequisites for the filing of a suit under Title VII of the Civil Rights Act; and (2) that the facts here do not show racial discrimination on...