Teamsters Loc. U. No. 822 v. City of Portsmouth, Va.

• Citation: 423 F. Supp. 954
• Decision Date: 11 August 1975
• Docket Number: Civ. A. No. 75-184-N.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: TEAMSTERS LOCAL UNION NO. 822 OF NORFOLK, VIRGINIA, et al., Plaintiffs, v. CITY OF PORTSMOUTH, VIRGINIA, a Municipal Corporation, et al., Defendants.

423 F. Supp. 954

TEAMSTERS LOCAL UNION NO. 822 OF NORFOLK, VIRGINIA, et al., Plaintiffs, v. CITY OF PORTSMOUTH, VIRGINIA, a Municipal Corporation, et al., Defendants.

Civ. A. No. 75-184-N.

United States District Court, E. D. Virginia, Norfolk Division.

August 11, 1975.

Norman Olitsky, Portsmouth, Va., for plaintiffs.

Gordon B. Tayloe, Jr., City Atty., Portsmouth, Va., for defendants.

MEMORANDUM ORDER

KELLAM, Chief Judge.

Asserting a deprivation of their rights under the First and Fourteenth Amendments, plaintiffs instituted this action pursuant to 42 U.S.C., § 1983. The first count of the complaint alleges the City of Portsmouth, a municipal corporation, and the city manager, chief of police, and city councilmen of said city, refuse to recognize Teamsters Local Union No. 822 of Norfolk, Virginia (Union) as the representative of the members of the Police Department of the city, and refuse to negotiate with said union. The second count of the complaint asserts that the city, by receiving funds from the federal government pursuant to the Law Enforcement Assistance Act, 42 U.S.C., §§ 3701-3795, has become an instrumentality of the federal government and, as such, the individual plaintiffs are entitled to the benefits of the Executive Order of the President known as Executive Order 11491, relating to recognition of labor unions and the right to collective bargaining.

Plaintiffs seek declaratory and injunctive relief, damages, costs and attorney's fees.

Defendants have filed a motion for summary judgment to which they attached affidavits. Each side has submitted briefs in support of their positions, but plaintiffs have not countered the allegations of the affidavits.

While the individual plaintiffs assert they are being deterred and prevented from associating with organizations of their own choice without fear of penalty or reprisal, and from organizing, and they are denied their rights of free speech pursuant to the First Amendment, the affidavits of the city manager and chief of police, which are not controverted, set forth that plaintiffs and all employees of the Police Department are free to join, associate or not associate with labor organizations of their own choosing; that no penalty or reprisal has resulted from any actions of members of the Police Department joining any labor organization; and that the city does not recognize any labor organization as a representative of the police.

City is not a person as defined in 42 U.S.C., § 1983. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). Secondly, the city manager, chief of police and members of the council are sued in their official capacities and as such not liable in damages to the plaintiffs under § 1983. Scheuer v. Rhodes, 416 U.S. 232, 238, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Moye v. City of Raleigh, 503 F.2d 631, 635 n. 11 (4th Cir. 1974); Bowman v. White, 388 F.2d 756 (4th Cir. 1968). But if the allegations of the complaint are sufficient to cover the city manager, chief of police and councilmen in their individual capacities, they enjoy a qualified immunity, "the variations being dependent upon the scope of discretion and responsibility of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based." "It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct." Scheuer v. Rhodes, supra 416 U.S. 247-8, 94 S.Ct. 1692. In Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214, dealing with immunity of school board members, the court said the member is not immune from damages if "he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with malicious intention to cause a deprivation of constitutional rights or other injury." The above quotation was followed with the language—

"That is not to say that school board members are `charged with predicting the future course of constitutional law.' Pierson v. Ray, supra, 386 U.S. 547 at 557 87 S.Ct. 1213, at 1219, 18 L.Ed.2d 288. A compensatory award will be appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student's clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith."

There is suggestion the city council is a legislative body and was acting as such when it dealt with the matters in issue; and if so, the council enjoyed complete immunity for the acts in issue. The court further said in Scheuer v. Rhodes, supra, 416 U.S. at pages 243-4, 94 S.Ct. at page 1690, that it "had previously recognized that the Civil Rights Act of 1871 does not create civil liability for legislative acts by legislators `in a field where legislators traditionally have power to act.' Tenney v. Brandhove, 341 U.S. 367, 379 71 S.Ct. 783, 789, 95 L.Ed. 1019 (1951)."

The defendants assert they acted in "good faith"¹ reliance upon opinions of the Attorney General of the Commonwealth of Virginia, and the City Attorney of the City of Portsmouth advising that the council is without authority to recognize labor organizations as representatives of public employees. There is no allegation or suggestion in the complaint or elsewhere that defendants knew or should have known that the action which they took within the sphere of their responsibility would violate the constitutional rights of plaintiffs, or that they acted with such disregard of plaintiffs' clearly established constitutional rights as to suggest their action was not in good faith, or that there were not reasonable grounds for the belief formed from the facts and circumstances that they were acting in good faith. See Wood v. Strickland, supra; Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Moye v. Raleigh, 503 F.2d 631 (4th Cir. 1974); Skinner v. Spellman, 480 F.2d 539, 540 (4th Cir. 1973); Eslinger v. Thomas, 476 F.2d 225 (4th Cir. 1973); Hill v. Rowland, 474 F.2d 1374 (4th Cir. 1973); Bennett v. Gravelle, 323 F.Supp. 203 (D.Md.1971), aff'd 451 F.2d 1011, petition for cert. dismissed 407 U.S. 917, 92 S.Ct. 2451, 32 L.Ed.2d 692; Kirstein v. Rector and Visitors of University of Virginia, 309 F.Supp. 184, 189 (E.D.Va., Three-Judge Court 1970).

Congress in enacting the Labor Management Relations Act, set forth in 29 U.S.C., § 151, declared it to be the policy of the United States to eliminate obstructions to the free flow of commerce by encouraging the practice and procedure of collective bargaining and to...