Stanley v. Local 926 of Int. U. of Op. Eng. of AFL-CIO

• Decision Date: 30 January 1973
• Docket Number: Civ. A. No. 16321.
• Citation: 354 F. Supp. 1267
• Parties: Jimmy L. STANLEY, for himself and others similarly situated, v. LOCAL 926 OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS OF THE AFL-CIO et al.
• Court: U.S. District Court — Northern District of Georgia

354 F. Supp. 1267

Jimmy L. STANLEY, for himself and others similarly situated, v. LOCAL 926 OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS OF THE AFL-CIO et al.

Civ. A. No. 16321.

United States District Court, N. D. Georgia, Atlanta Division.

January 30, 1973.

Moore, Alexander & Rindskopf, Atlanta, Ga., Jack Greenberg, William L. Robinson and Morris Baller, New York City, for plaintiff.

Adair, Goldthwaite, Stanford & Daniels, Atlanta, Ga., for Unions.

Arthur K. Bolton, Atty. Gen., Donald A. Langham, Asst. Atty. Gen., Atlanta, Ga., for the State.

ORDER

EDENFIELD, District Judge.

Plaintiff in this class action brought under 42 U.S.C. §§ 1981, 1983, and 2000e (1970) alleges that he was denied job placement by defendant Local 926 of the International Union of Operating Engineers, AFL-CIO "Local 926" after he successfully completed a training program set up by defendants solely because he was black. He seeks declaratory and injunctive relief on behalf of the class, and he seeks back pay, immediate employment, restoration of seniority rights, costs, and reasonable attorney's fees on his own behalf. The matter is before the court on motion of defendant International Union of Operating Engineers, AFL-CIO "International" to be dismissed from the suit and motion of defendant Georgia Department of Labor for summary judgment.

Pursuant to the Manpower Development and Training Act of 1962, 42 U.S. C. § 2571 et seq. (1970), defendant International entered into a "National MDTA-OJT Contract" with the United States Department of Labor and the United States Department of Health, Education and Welfare to provide new and better skills for unemployed and underemployed persons in the construction industry through a formal training plan. The national contract provided that the International could subcontract with other organizations to provide the training, and on February 19, 1971 defendant International and defendant Local 926 entered into such a cost-reimbursement type subcontract whereby Local 926 agreed to operate a training program in the Northern District of Georgia. Attached to the subcontract was an "Assurance of Compliance" executed by Local 926 in which Local 926 specifically committed itself to take all measures necessary to guarantee nondiscrimination in the operation of the training program. The subcontract also incorporated by reference all provisions of the national prime contracts between the International and the Government. One such provision, outlined in Section 14 of the "General Provisions for Cost-Reimbursement Type Contracts", bound the International to take "affirmative action" to ensure that trainees were not subjected to any discrimination and to enforce detailed nondiscrimination clauses which had to be included in all its subcontracts.

The training program devised by Local 926 was designed both for underemployed operating engineers who had a work history of limited or outdated skills and for unemployed individuals who had limited or no skills. Recruitment for the former or "skills conversion" course was restricted to individuals with a background in the construction industry who were selected for training by Local 926. Recruitment for the latter or "entry level" course was coordinated with the Urban League and other community organizations with priority given to members of minority groups.

The "entry level" course consisted first of orientation and then eight weeks of classroom instruction and vestibule training. Those trainees who successfully completed this phase of the course were supposed to be dispatched to jobs on the equipment or in the classification for which they qualified, subject to the provisions of existing collective bargaining agreements and the requirements of the industry, in order to get 18 weeks of on-the-job training. It was intended that successful trainees would compete and qualify for existing apprenticeship programs and, subsequently, union membership.

The Georgia Department of Labor, which was not a party to any of the contracts or subcontracts referred to above, participated in the training program only to the extent of certifying that a need for training existed in the occupation involved, completing trainee enrollment forms, determining that trainees met eligibility standards, and paying trainees a training allowance during the eight weeks of classroom instruction and vestibule training. This was done under a directive from the United States Department of Labor pursuant to the Manpower Development and Training Act.

According to the allegations of the complaint, plaintiff applied for and was accepted in the "entry level" course and successfully completed the classroom instruction and vestibule training. He received a certificate to this effect on June 18, 1971. The following Monday, June 21, plaintiff reported to the hiring hall of Local 926 and was the first person to sign the register indicating availability for employment. He reported to the hiring hall daily during the entire month of July, 1971. Plaintiff, however, was never dispatched to a job for on-the-job training. A number of whites, on the other hand, including many who had participated with plaintiff in the training program and who signed the hiring hall register after plaintiff, were assigned to jobs during this period. In August, plaintiff filed a charge of discrimination against Local 926 and the International with the Equal Employment Opportunity Commission "EEOC". On March 8, 1972, the EEOC informed plaintiff of his right to institute a civil action within 30 days, and this suit followed.

The International, which is located in Washington, D. C., moves to be dismissed on the ground that this court lacks personal jurisdiction over it. Since there is no federal statutory provision which informs a district court when personal jurisdiction may be had over individuals and entities which are not located within the court's territorial jurisdiction, it is usual for the court's jurisdiction to be tested by a motion attacking the service of process, as International does in this case. The court must determine in such cases whether it is both statutorily and constitutionally permissible to serve the foreigner. Gkiafis v. Steamship Yiosonas, 342 F.2d 546, 548 (4th Cir. 1965).

Under Rule 4, Fed.R.Civ.P., a summons and complaint must be served upon all defendants in a civil action. Rule 4(d) provides several methods of federal service and, in Rule 4(d)(7), incorporates all state methods if service is to be made upon individuals other than an infant or incompetent person and domestic and foreign corporations, partnerships, and unincorporated associations. However, Rule 4(f) limits all such service of process to the territorial limits of the state in which the district court is held, unless some federal statute or rule authorizes extra-territorial service. There is no federal statute which authorizes extra-territorial service in the present case. Nevertheless, Georgia has a "long-arm" statute, Ga.Code Ann. § 24-113.1 (1971),¹ and Rule 4(e), Fed. R.Civ.P., does authorize extra-territorial service "under the circumstances and in the manner prescribed" by a state "long-arm" statute. Thus in this federal civil rights case the court must look to Georgia law to determine, first, if service upon the International was statutorily permissible.²

Under Ga.Code Ann. § 24-115 (1971), whoever is subject to the jurisdiction of the courts of Georgia under § 24-113.1 may be served with a summons outside Georgia in the same manner service is made within the state by any person authorized to make service by the laws of the state, territory, possession, or country in which service is to be made, or by any qualified attorney, solicitor, barrister, or equivalent person. Under Ga.Code Ann. § 24-117 (1971) an unincorporated association such as the International is included within the term "nonresident" as that term is used in § 24-113.1 and personal service upon a nonresident by an authorized individual is sufficient under Ga.Code Ann. § 24-1105 (1971) and Ga.Code Ann. § 81A-104(d)(7), (f) (1972). In the present case service upon the International was made personally by a United States marshal, so that the manner of service in the present case was proper under applicable Georgia law. Bituminous Casualty Corp. v. R. D. C., Inc., 334 F.Supp. 1163, 1164 (N.D.Ga.1971). However, such service may be considered statutorily permissible only if the International was subject to jurisdiction under § 24-113.1.

The resolution of this question has been made relatively easy by earlier decisions of this court. In Marival, Inc. v. Planes, Inc., 302 F.Supp. 201 (N.D.Ga. 1969), and again in Griffin v. Air South, Inc., 324 F.Supp. 1284 (N.D.Ga. 1971), this court...