Service Employees Internat'l U. v. County of Butler, Pa.

• Decision Date: 03 December 1969
• Docket Number: Civ. A. No. 69-1155.
• Citation: 306 F. Supp. 1080
• Parties: SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, Laura M. Herold and Sara G. Russell, Plaintiffs, v. The COUNTY OF BUTLER, PENNSYLVANIA; Leon Gant, Jr., Charles T. Chew and James A. Green, Butler County Commissioners; Sunnyview Home of Butler County, and W. H. McCune, Superintendent of Sunnyview Home of Butler County, Pennsylvania, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

306 F. Supp. 1080

SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, Laura M. Herold and Sara G. Russell, Plaintiffs, v. The COUNTY OF BUTLER, PENNSYLVANIA; Leon Gant, Jr., Charles T. Chew and James A. Green, Butler County Commissioners; Sunnyview Home of Butler County, and W. H. McCune, Superintendent of Sunnyview Home of Butler County, Pennsylvania, Defendants.

Civ. A. No. 69-1155.

United States District Court W. D. Pennsylvania.

December 3, 1969.

Herman L. Foreman, Pittsburgh, Pa., for plaintiffs.

Lee C. McCandless and Frank P. Krizner, Butler, Pa., for defendants.

OPINION

WEBER, District Judge.

Plaintiffs, being an unincorporated labor association and two of its members, have brought this action against the County of Butler, its three Commissioners in their official capacity, and a supervisory employee of the County. Jurisdiction is claimed under the Civil Rights Act of 1871 42 U.S.C.A. § 1983. The cause of action asserted is that the individual defendants, in their official capacities as County Commissioners and Superintendent of the County home, have harassed and discriminated against employees who are members of plaintiff Union and have discharged the two individual plaintiffs from employment, solely because of their membership and activities in said labor union. Defendants have moved to dismiss on several grounds.

The Complaint alleges a discharge from employment because of membership in the labor association. Plaintiffs do not allege the breach of any contract of employment, or the denial of protection of any civil service or tenure statute. It is admitted that their employment was at will. Does such an allegation state a cause of action under the Civil Rights Act of 1871 42 U.S.C. A. § 1983. We believe that such a cause of action has been recognized in the reported decisions dealing directly with similar situations, as well as the general judicial construction of the Act. In American Federation of State, County, & Municipal Employees, AFL-CIO v. Woodward, 406 F.2d 137 8th Cir., 1969, it was held that a complaint alleging discharge from public employment because of membership in a labor union stated a cause of action under the Civil Rights Act of 1871. It held that the action of the employer deprived the plaintiffs of rights, privileges and immunities secured them by the Constitution of the United States, the right of a citizen to associate with other citizens for any lawful purpose. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 1965. Union membership is protected by the right of association under the First and Fourteenth Amendments. Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 1945. Plaintiffs to establish jurisdiction under the Civil Rights Act must allege that defendants acted under color of law. Because it is averred that the defendant County Commissioners and the defendant Superintendent acted in their official capacity in the hiring and firing of County employees, the plaintiff has sufficiently averred that defendants acted under "color of law". Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 1961. In the Woodward case the defendant Woodward was the City Commissioner of the Street Department, having the power of hiring and discharge of employees as part of his official duties.

Also in McLaughlin v. Tilendis, 398 F.2d 287 7th Cir., 1968, the allegation that plaintiff, a non-tenure school teacher, was dismissed because of his membership in a union, stated a claim under the Civil Rights Act of 1871.

There is no public policy in Pennsylvania restricting union membership of public employees. "Public employees while prohibited from striking are not prevented from the formation of employe unions or restricted from lawful activities therein." Broadwater v. Otto, 370 Pa. 611, 88 A.2d 878 at p. 881 1952. See also Phila. Teachers' Ass'n v. Labrum, 415 Pa. 212, 203 A.2d 34 1964.

Thus stated, the allegation of this Complaint states a cause of action under the Civil Rights Act of 1871. Are all of the plaintiffs proper parties? We note that in Woodward, supra, both the union and the employees were parties plaintiff, as here, and no question of proper parties was raised. We find no necessity that the union be party to a contract with an employer, as is required for jurisdiction under Sec. 301 et seq. of the Labor-Management Relations Act, 29 U.S.C.A. § 185 et seq., because that Act is not the basis of jurisdiction alleged here. Nor is an employment contract essential to this cause of action. Similarly, in McLaughlin v. Tilendis, cit. supra, no objection was raised to the inclusion of the union as a party plaintiff. The plaintiff union here faces real disadvantage from the alleged action of the defendants, its membership and financial support may be affected adversely, therefore it has standing to complain on behalf of its members. National Ass'n for Advancement of Colored People v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 1958. Smith v. Bd. of Education, 365 F.2d 770 8th Cir., 1966.

We find no requirement that the administrative procedure provided by the Civil Rights Act of 1964 42 U.S.C. A. § 2000e et seq. be followed. That Act applies to discrimination because of an individual's race, color, religion, sex or national origin, none of which are alleged here.

Defendants also move to dismiss as to the various categories of defendants named i.e.:

(a) The County of Butler, a municipal corporation;

(b) Sunnyview Home of Butler County, an institution owned, operated, maintained and controlled by Butler County;

(c) Leon Gant, Jr., Charles T. Chew, and James A. Green, Commissioners of Butler County, Pennsylvania, acting in their official capacity;

(d) W. H. McCune, Superintendent of Sunnyview Home acting in his official capacity.

As to Sunnyview Home we have no evidence as to its legal capacity as an independent entity subject to suit sufficient to determine whether or not it is a separate legal entity from the County of Butler, and we will, therefore, treat the Sunnyview Home as an alter ego of the County of Butler until evidence to the contrary appears.

As to the ...