United States v. Georgia Power Company

• Decision Date: 16 May 1969
• Docket Number: No. 12355.,12355.
• Parties: UNITED STATES of America, by Ramsey CLARK, Attorney General v. GEORGIA POWER COMPANY, a corporation, Local Union No. 822, Athens, Local Union No. 84, Atlanta, Local Union No. 923, Augusta, Local Union No. 780, Columbus, Local Union No. 896, Macon, Local Union No. 847, Rome, Local Union No. 511, Valdosta, of the International Brotherhood of Electrical Workers, all unincorporated associations.
• Court: U.S. District Court — Northern District of Georgia

301 F. Supp. 538

UNITED STATES of America, by Ramsey CLARK, Attorney General v. GEORGIA POWER COMPANY, a corporation, Local Union No. 822, Athens, Local Union No. 84, Atlanta, Local Union No. 923, Augusta, Local Union No. 780, Columbus, Local Union No. 896, Macon, Local Union No. 847, Rome, Local Union No. 511, Valdosta, of the International Brotherhood of Electrical Workers, all unincorporated associations.

No. 12355.

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

May 16, 1969.

COPYRIGHT MATERIAL OMITTED

Ramsey Clark, Atty. Gen., Stephen J. Pollak, Asst. Atty. Gen., Frank M. Dunbaugh, John A. Bleveans, Attys., Department of Justice, Washington, D. C. Charles L. Goodson, U. S. Atty., Atlanta, Ga., for plaintiff.

William B. Paul, Atlanta, Ga., for Georgia Power Co.

Robert L. Mitchell, Atlanta, Ga., for all other defendants.

ORDER

ALBERT J. HENDERSON, Jr., District Judge.

This matter is before the court on motions filed by the defendants. Both the Georgia Power Company (the Company) and various locals of the International Brotherhood of Electrical Workers (the Unions) have moved to dismiss the complaint, or, in the alternative, for a more definite statement. In addition, the Company has moved for an indefinite stay of all proceedings in this action, and has objected to interrogatories submitted by the plaintiff.

Suit has been brought by the Attorney General under Title VII of the Civil Rights Act of 1964; more specifically, pursuant to 42 U.S.C.A. § 2000e-6(a), which provides:

"(a) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts pertaining to such pattern or practice, and (3) requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described."

According to the Attorney General, the Company and the Unions have engaged in a pattern or practice of resistance to the full enjoyment of rights secured by Title VII in the following manner:

"7. The company is engaged in acts and practices that limit, segregate, classify, or otherwise discriminate against its Negro employees in ways that deprive or tend to deprive them of employment opportunities or adversely affect their status as employees because of their race. These acts and practices include the following:

a. The company maintains a racially segregated, dual system of jobs and lines of progression.

b. The company considers only white people for better paying jobs and for jobs offering the most opportunities for training and advancement and refuses to consider Negroes for those jobs, but considers Negroes only for the lowest paying jobs and the jobs that offer the least opportunity for training and advancement.

c. Negroes who seek to be considered for jobs traditionally held only by white employees are subjected to requirements that have not been imposed on white employees whom the company has assigned to those jobs.

d. Negro employees who are performing jobs that are essentially similar to jobs performed by white employees are given fewer opportunities for advancement, are given less opportunity for training essential to obtain higher paying jobs and are prevented from receiving training in skills essential in certain higher paying jobs.

e. Negro employees who are performing jobs that are essentially similar to jobs performed by white employees, and who seek to obtain the same advancement opportunity that is available to those white employees, are required:

(a) To transfer to a new line of progression without receiving credit in the new line of progression for seniority previously earned, and

(b) To lose seniority previously earned in their present line of progression.

f. The company traditionally has assigned only white persons to apprentice jobs and has refused to assign Negroes to apprentice jobs of linemen, mechanic, electrician, cable splicer, forester, and trouble dispatcher.

g. The company maintains racially segregated comfort facilities.

8. The defendant unions are collective bargaining representatives of employees of the company. All of the unions have entered into a single collective bargaining agreement with the defendant company. The agreement contains provisions which discriminate against Negro employees because of their race and perpetuate the effects of the discriminatory acts and practices of the company as described in paragraph 7."

MOTIONS TO DISMISS

Defendant Unions' motion to dismiss is based on three grounds:

1. The complaint fails to set forth a claim against the Unions upon which relief can be granted.

2. The plaintiff does not affirmatively allege that the employees exhausted their contractual remedies under the grievance and arbitration provisions of the collective bargaining contract between the Unions and the Company.

3. The Labor-Management Relations Act, as amended, preempts the jurisdiction of this court and that of the Equal Employment Opportunity Commission, placing exclusive jurisdiction in the National Labor Relations Board.

The Unions' first challenge is to the sufficiency of the complaint pursuant to Rule 12(b) (6), Fed.R.Civ.P. Such motion has the effect of admitting the validity and existence of the claim as stated, but contests plaintiff's right to recover under the law. Laimer v. State Mutual Life Ins. Co., 108 F.2d 302, 305 (8th Cir. 1940). On motion to dismiss, the complaint is to be construed in the light most favorable to the plaintiff. The complaint alleges that the Unions have entered into a collective bargaining agreement with the Company which contains provisions discriminating against Negro employees because of their race and perpetuates the effects of the discriminating acts and practices of the Company. If plaintiff is able to establish facts proving this allegation, the Unions are in violation of 42 U.S.C.A. § 2000e-2(c), and plaintiff is entitled to relief. Since the complaint should not be dismissed for failure to state a claim unless it is beyond doubt that plaintiff can prove no set of facts entitling it to relief, defendant Unions' first ground is without merit. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, (1957).

Equally unavailing is Unions' second ground for dismissal. The doctrine of exhaustion of contractual remedies is inapplicable to suits brought by the Attorney General under § 2000e-6 (a). That section lists the jurisdictional prerequisites for bringing a pattern and practice suit, and exhaustion of contractual remedies is not among them. As pointed out in King v. Georgia Power Company, 295 F.Supp. 943 (N.D.Ga., filed Aug. 13, 1968), where plaintiff asserts a statutory right against racial discrimination in employment, under the Civil Rights Act of 1964, rather than a contractual right, plaintiff need only follow the procedures for relief provided in that statute. While King holds that an individual complainant in a Title VII case need not exhaust his contractual remedies before suing under § 2000e-5, by analogy, the Attorney General, who is not a party to the collective bargaining agreement, must similarly be free of this requirement.

The third ground for dismissal offered by the Unions, that the Labor-Management Relations Act, as amended, has preempted the jurisdiction of this court, is without foundation. By enacting Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Congress demonstrated its clear intention that problems of racial discrimination in employment were not within the exclusive jurisdiction of the National Labor Relations Board. This argument by the Unions has previously been rejected in this court in the King case.

Defendant Unions' motion to dismiss is denied.

The Company's motion to dismiss is based on the following four arguments:

1. The complaint fails to comply with the pleading requirements of § 2000a-5(a).

2. The complaint for injunctive relief fails to set forth with sufficient specificity the alleged act or acts to be enjoined.

3. The relief sought is prohibited by the Federal Rules of Civil Procedure and is not authorized by § 2000e-6(a).

4. The complaint fails to state a claim upon which relief can be granted.

The main contention by the Company is that the complaint fails to set forth "facts pertaining to such pattern or practice" as required by the statute, instead setting forth merely conclusionary averments. Essentially, the Company argues that § 2000e-6(a) requires more than the notice pleading envisaged by Rule 8 of the Federal Rules of Civil Procedure. That is, a pattern or practice suit must be pleaded in a manner different from the normal federal complaint. In support of its view, the Company calls attention to the legislative history of the provision and cites United States v. H. K. Porter Company, Inc., Civil Action No. 67-363 (N. D.Ala. July 28, 1967).

This court disagrees with the view advocated by the Company. The better view was stated in United States v. Building and Construction Trades Council of St. Louis, AFL-CIO, et al., 271 F. Supp. 447 (E.D.Mo., 1966). Denying the defendant's motion to dismiss on the ground the complaint did not set forth facts pertaining to such pattern or practice as required in § 2000e-6(a), the court, at page 452, stated:

"Concerning the required allegation of facts, we find nothing in the language of the statute to indicate an intention to

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