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October 18, 1971

Chester A. Page, Plaintiff
Curtiss-Wright Corporation et al., Defendants

Lacey, D. J.

The opinion of the court was delivered by: LACEY


Plaintiff, employed by the defendant Curtiss-Wright Corporation (Curtiss-Wright) from April 3, 1951, until August 30, 1970, *fn1" and a member, during said term of employment, of the defendant International Union United Automobile, Aerospace and Agricultural Implement Workers of America, Amalgamated Local 669-UAW (the Union), alleges herein racial discrimination in employment against him and other Negro persons, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Plaintiff further alleges violation by defendant Union of the duty of fair representation owed to him and other members of the Union under the provisions of the Labor-Management Relations Act, 29 U.S.C. § 151 et seq.

 Jurisdiction of this Court is claimed under 28 U.S.C. § 1343(4), in addition to the foregoing statutory provisions. *fn2" Relief sought includes damages and injunctive relief.

 This matter comes on by reason of various motions made by the defendant Curtiss-Wright. Thus, it moves under F.R. Civ. P. 12 for dismissal of the Complaint, or judgment on the pleadings, on the ground that this Court lacks jurisdiction over the subject matter in that plaintiff failed to satisfy certain alleged statutory conditions precedent to court action. It also moves pursuant to F.R. Civ. P. 23 for a determination that the action is not maintainable as a class action because plaintiff's claim against it is not typical of the claim, if any, of any class and he does not represent any class. Finally, it moves pursuant to F.R. Civ. P. 56 for summary judgment in its favor on plaintiff's claim for the reason that (a) plaintiff's claim herein was submitted to arbitration and decided adversely to him; (b) that the claim was decided adversely to plaintiff by the cognizant federal agency administering the non-discrimination in employment provisions of Executive Order 11246 (applicable to contractors with the U.S. Government); and (c) on the ground that plaintiff has failed to exhaust his administrative appeal remedies under the said Executive Order.

 For purposes of the motion under F.R. Civ. P. 12 the allegations of the Complaint must be accepted as true. Young v. I.T. & T., 438 F.2d 757, 758 (3 Cir. 1971). They follow:

 During his entire period of employment plaintiff has been a dues paying member of the Union.

 In July, 1967, plaintiff applied for promotion to Refrigeration-Air Conditioner Operator but was rejected in favor of a white man who was hired from outside as a "journeyman." *fn3" Plaintiff then filed a grievance through the Union. Arbitration ensued and by decision of the arbitrator plaintiff was awarded the sought for position. In the meantime the recently hired Operator had resigned. Another white man (Artale), also a "journeyman," was then hired as a new employee to take his place. The arbitration decision issued on May 2, 1968, Artale was hired on May 16, 1968, to start work on May 20, 1968; and plaintiff was started in his new classification the same day as Artale, May 20, 1968, but plaintiff claims, with 4 days less seniority. The plaintiff later took this issue to arbitration and the award, issued on July 7, 1969, directed that plaintiff have a seniority date of May 6, 1968. Meanwhile, however, on September 9, 1968, plaintiff was removed from his new position, or, in the words of the company, "excessed," while Artale was retained, this action on the basis of an alphabetical seniority system, according to plaintiff.3a Plaintiff then returned to his former job in the company.

 It is further charged that, as an additional means of unlawful discrimination against plaintiff and other blacks, Curtiss-Wright instituted a testing system on certain jobs; that these were not "professionally developed ability tests;" and that they were intended to discriminate against blacks. *fn4"

 On February 24, 1969, within 210 days of the occurrence of the acts of which he complains, plaintiff filed written charges with the Equal Employment Opportunity Commission alleging denial by defendants of plaintiff's rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. On September 30, 1969, the Commission found reasonable cause to believe that defendants had committed a violation of the Act. Then, on September 25, 1970, plaintiff was advised by the Commission that defendants' compliance with Title VII had not been accomplished within the period allowed, and that he was entitled to institute a civil action in the federal court within 30 days of receipt of said notice. *fn5" Complaint was filed on October 26, 1970.

 Further as to the Union, plaintiff charges it violated its duty to fairly represent him in that the Union acquiesced and joined in unlawful and discriminatory practices of the company, and failed to protect blacks from such discrimination.

 The moving defendant argues for dismissal of the Complaint under F.R. Civ. P. 12, contending first that the statutory conditions precedent to suit under Title VII have not been fulfilled. Limiting our factual view to the allegations of the Complaint as we must, it does appear, in the light of statutory requirements, that there is lacking the averment that plaintiff submitted to the appropriate state agency his claim of discrimination. Submission is required under 42 U.S.C. § 2000e-5(b) and (d) if the alleged unlawful employment practice occurs in a state having a law prohibiting the practice and establishing a state authority to grant or seek relief from such a practice. New Jersey is such a state. N.J. S.A. 10:5-1, 10:5-14.1 et seq.

 However, consideration of this deficiency need not detain us long. As a practical matter, as will hereinafter appear, we are informed by materials submitted on the motion for summary judgment that the E.E.O.C. in fact submitted this matter for state agency consideration. Thus, were this flaw in pleading a fatal one, necessitating dismissal of the Complaint for failure to state a claim under Title VII, we would permit amendment on liberal terms. Here, however, while desirable, amendment is not necessary in that the Complaint continues to state a cause of action under 42 U.S.C. § 1981.

 The validity of plaintiff's claim, accepting his averments as true, is clear. Two recent decisions of this Circuit's Court of Appeals leave no doubt as to this.

 In Young v. I.T. & T., 438 F.2d 757 (3 Cir. 1971), it was held that a § 1981 claim stood on its own, separate and apart from a claim under Title VII, and would not be colored by any frailties in the Title VII claim. Thus Judge Gibbons there stated (438 F.2d at 763):

We conclude that nothing in Title VII of the Civil Rights Act of 1964 imposes any jurisdictional barrier to a suit brought under § 1981 charging discrimination in private employment.

 Thereafter came Hackett v. McGuire Bros. Inc., 445 F.2d 442 (3 Cir. 1971), where Judge Gibbons stated (at 445-446):

. . . Hackett says that he was discriminated against in seniority and in vacation schedules, and was discharged, because of his race. If this is so he has been aggrieved. Hackett says the Union discriminated against him because of his race. If this is so he has been aggrieved. *fn6"

 Then, after upholding the claim as one properly within Title VII, Judge Gibbons said (Id. at 446):

What we have said with respect to Hackett's standing to sue under Title VII applies at least equally to his right to sue under 42 U.S.C. § 1981. That cause of action was not discussed by the district court, undoubtedly because the case was decided before the decision of this court in Young v. International Telephone & Telegraph Co., 438 F.2d 757 (3 Cir. 1971). Hackett is a Negro and purports to represent potential and actual Negro employees in eliminating discrimination by McGuire and by Local 187. The Young case recognizes his right to bring such a suit under § 1981.

 The moving defendant argues further that, even if a claim lies under § 1981, given proper circumstances, it is barred by the applicable statute of limitations. This defendant reasons that, since § 1981 itself contains no statute of limitations, resort must be had to the most analogous state limitations statute. *fn7" This is said by defendant to be the New Jersey two-year statute of limitations (N.J.S.A. 2A:14-2), citing Hughes v. Smith, 264 F. Supp. 767 (D.N.J. 1967), aff'd. per curiam, 389 F.2d 42 (3 Cir. 1968), which applied the two-year New Jersey personal injury statute of limitations (N.J.S.A. 2A:14-2) to bar a civil rights claim under 42 U.S.C.§ 1983.

 Instead, we turn to Young for an answer -- and one emerges. § 1981 is there held applicable to private acts of discrimination, and § 1981 provides:

All persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens . . . .

 Judge Gibbons, in Young, then observes (438 F.2d at 760):

Defendants also contend that assuming the applicability of § 1981 to certain private acts of discrimination, a fair reading of the statute precludes the construction that it was intended to apply to the employment situation. We cannot agree. In the context of the Reconstruction it would be hard to imagine to ...

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