Russell v. American Tobacco Company

• Decision Date: 18 January 1973
• Docket Number: No. C-2-G-68.,C-2-G-68.
• Citation: 374 F. Supp. 286
• Parties: Edgar RUSSELL et al., Plaintiffs, v. The AMERICAN TOBACCO COMPANY and Local 192, Tobacco Workers' International Union, an affiliate of AFL-CIO, Defendants.
• Court: U.S. District Court — Middle District of North Carolina

374 F. Supp. 286

Edgar RUSSELL et al., Plaintiffs, v. The AMERICAN TOBACCO COMPANY and Local 192, Tobacco Workers' International Union, an affiliate of AFL-CIO, Defendants.

No. C-2-G-68.

United States District Court, M. D. North Carolina, Greensboro Division.

January 18, 1973.

COPYRIGHT MATERIAL OMITTED

J. LeVonne Chambers and Robert Belton, Charlotte, N. C., for plaintiffs.

Charles T. Hagan, Jr., and Daniel W. Fouts, Greensboro, N. C., for defendant The American Tobacco Co.

Julius J. Gwyn, Reidsville, N. C., for Union.

MEMORANDUM OPINION

GORDON, Chief Judge.

This action was instituted pursuant to the provisions of the Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e et seq. The purpose of the action is to enjoin the defendants from alleged violation of the Act as well as to secure certain affirmative relief for the plaintiffs, and their class, as a result of prior alleged violations of the Act.

Messrs. Edgar Russell, Frederick Broadnax, Alvis Motley, Jr., James R. Vaughn, Lawrence Price, Jr., Glen A. Lee, Haywood Gilliam and James R. Kaylor are Negro citizens of the United States and residents of Reidsville, North Carolina. Messrs. Edgar Russell, Frederick Broadnax, Alvis Motley, Jr., James R. Vaughn, Lawrence Price and Glen A. Lee are employed by the defendant The American Tobacco Company (Company) at its Reidsville Branch in Reidsville, North Carolina. Messrs. Haywood Gilliam and James R. Kaylor are employed by the defendant Company at its Rockingham County Leaf Operation. All are members in good standing of defendant Local Union 192, Tobacco Workers' International Union, AFL-CIO.

Defendant Company is a corporation organized and existing under the laws of the State of New Jersey. The Company operates facilities for the handling and processing of leaf tobacco and the manufacturing of cigarettes in the City of Reidsville and in Rockingham County, North Carolina. The Company is an employer in an industry affecting commerce within the meaning of Section 701(b) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(b).

The defendant Local 192, Tobacco Workers' International Union, AFL-CIO (Local) is a labor organization representing hourly paid employees of the Company in dealing and negotiating with the Company concerning terms, conditions, and privileges of employment of employees of the Company. The Local is a labor organization within the meaning of Section 701(d) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(d).

The Company operates a plant in Reidsville, North Carolina, and one in Rockingham County, North Carolina, at which plants it conducts two major operations. More particularly, these are:

(a) The Reidsville branch of The American Tobacco Company (Branch) which receives tobacco from the Leaf Department, blends, processes and manufacturers it in its filter and non-filter cigarettes for sale to the general public.

(b) The Reidsville Leaf Department of The American Tobacco Company located outside the corporate limits of the City of Reidsville but within Rockingham County (Leaf), which handles green leaf tobacco, such as burley, bright, Maryland, etc., processes and stores it until needed in Branch. Leaf also handles Turkish tobacco.

The departments or areas of employment utilized by the Company in its Branch operations are:

(a) Fabrication: Where cigarettes are made and packed, filters for cigarettes are made and where cigarettes are stored. The shipping and receiving operations are classified under fabrication; and

(b) Pre-fabrication: Where tobacco is received, conditioned, blended, cut and dried until needed in Fabrication.

The departments or areas of employment utilized by the Company in its Leaf operations are:

(a) Stemming: Where green leaf tobacco is first received, processed and handled;

(b) Storage: Where tobacco is stored until needed;

(c) Blending: Where tobacco is initially blended according to the brand of cigarettes to be produced; and

(d) Turkish: Which handles its special type of tobacco.

Employees in the Leaf department are classified as either regular employees or seasonal employees. Regular employees are employed on a year round basis. Seasonal employees are employed on a seasonal or temporary basis, usually from July to January of the following year.

Craft jobs such as electrician, machinist, tinsmith, welder, etc., are jobs classified in Fabrication although employees in these categories might perform duties in Fabrication and Pre-fabrication.

JURISDICTION

By order filed January 20, 1971, motions to dismiss filed by the defendants on the ground that the action was not timely instituted, as well as upon the ground that there was a variance between the allegations contained in the complaint and the charges filed by the plaintiffs with the Equal Employment Opportunity Commission (EEOC or Commission), were denied. A complete recapitulation of that order at this point would serve no purpose. However, suffice it so say that although it is important that the parties defendant be named in the charge lodged with the EEOC, Mickel v. S. C. State Employment Service, 377 F.2d 239 (4th Cir. 1967), cert. denied, 389 U.S. 877, 88 S. Ct. 177, 19 L.Ed.2d 166 (1967), and that grievances be set out so that EEOC investigators can ascertain their substance, the specificity associated with legal expertise is unnecessary. When the charge provides a general notice of the situation, a subsequent court action may include those issues which grow out of or are reasonably related to the Commission's investigation. Sciaraffa v. Oxford Paper Co., 310 F.Supp. 891, 898 (D.Me.1970); Younger v. Glamorgan Pipe and Foundry Co., 310 F.Supp. 195 (W.D.Va.1969); Logan v. General Fireproofing Co., 309 F.Supp. 1096 (W.D.N. C.1969).

The gist of plaintiff Russell's letter to the EEOC was that for some time, allegedly, the Company had discriminated by reason of race in the promotion and transfer of black employees, specifically in two departments and that Local 192 had acquiesced in this conduct. This notice is sufficient to encompass the issues raised by the evidence.

In its earlier order, the Court reaffirmed, as it does here, the interpretation of the Civil Rights Act of 1964 which requires that suit be brought within thirty days of receiving the EEOC cause letter. Goodman v. City Products Corp., Ben Franklin Division, 425 F.2d 702 (6th Cir. 1970). As stated in the earlier order, although the others might be precluded from maintaining individual actions by reason of the time limitation, they are included in the class of black employees of the Company, represented by the plaintiffs, James Kaylor, Edgar Russell, and Haywood Gilliam. Russell as an employee of the Branch operation has standing to represent similarly situated persons, while Kaylor and Gilliam, as employees of the Leaf operation of the Company have standing to represent other persons similarly situated.

Russell's letter of July 26, 1967, to the EEOC specifically charged an acquiescence by Local 192 in the discrimination allegedly committed by the Company. Russell, as a member in good standing of Local 192, has standing in this action to represent the class of all other blacks who are members of Local 192.

Local 192 relies originally on the contention that the charging letter not being under oath by Russell, jurisdiction has never been established for the EEOC to act or for this Court to subsequently hear this action. The statute conferring jurisdiction, 42 U.S.C.A. § 2000e-5(a), does contain the words, "Whenever it is charged in writing under oath by a person claiming to be aggrieved, . . ." The defendant Local 192 relies heavily on the words, "under oath," contending they are jurisdictional in nature. However, these words have been held to have an administrative meaning. "When the statute is thus considered, it is clear that the requirement for verification of charges lodged with the Commission relates solely to the administrative rather than to the judicial features of the statute." Choate v. Caterpillar Tractor Co., 402 F.2d 357, 359 (7th Cir. 1968). Verification of the statement is required by the EEOC for its protection, not for the protection of the Court.

"If the Commission undertakes to process a charge which is not `under oath', we perceive no reason why the district court should not treat the omission of the oath as a permissive waiver by the Commission. To deny relief under these circumstances would be a meaningless triumph of form over substance." Choate, supra, at 360.

The Commission's decision to act on and process an unsigned letter alleging discrimination constitutes a waiver of the "under oath" verification requirement. McGriff v. A. O. Smith Corporation, 51 F.R.D. 479 (D.S.C.1971).

In the same jurisdictional vein, Local 192 maintains that a failure by the EEOC to serve a copy of the charge, tendered by the plaintiff Russell, on Local 192 destroys the viability of this action. The Local cites Long v. Georgia Kraft Co., et al, 1 FEP Cases 719 (N.D.Ga.1969) for the proposition that while it may be conceded that actual conciliation by the EEOC need not be conducted, the opportunity for conciliation has been held to be essential. The Local urges the view that it never received statutory notice of the charge filed by Edgar Russell, and was therefore unprepared to defend itself against any such charge.

This jurisdictional defense is almost entirely lacking in substance. Local 192 has plucked one isolated case from a veritable thicket of contradictory cases to bolster its assertion. Elucidation is found in Holliday v. Railway Express Company, Inc., 306 F.Supp. 898, 901 (N.D.Ga.1969).

"Third, the failure of the Commission to supply respondents with a copy of the charges should not be a fatal bar to private action in federal court. Mondy v. Crown Zellerbach Corp., 271 F.Supp. 258 (E.D.La.1967), rev'd on other grounds, . . . International Brotherhood of Electrical Workers Local Union No. 5 v. United States EEOC, 398 F.2d

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