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April 26, 1973

Lois Tuma and Irene Rucki, Plaintiffs
American Can Company et al., Defendants

Lacey, D.J.

The opinion of the court was delivered by: LACEY

Plaintiffs, female employees of American Can Company at Hillside, New Jersey, and members of the defendants United Steelworkers of America, International and United Steelworkers of America, Local Union 6301, charge in a nominal class action discrimination in employment based on sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970), and the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (1970). Plaintiffs further allege a violation by defendant Unions of their duty of fair representation.

 This matter comes before the Court by reason of defendant Unions' motion for summary judgment, cross motions for a determination on class action status, and plaintiffs' motion for certain evidentiary rulings.

 Defendant Unions' motion for summary judgment is addressed, in three parts, to each of plaintiffs' claimed grounds for relief. It is contended that the Equal Pay Act claim should be dismissed as the statute fails to provide any legal basis for recovery against defendant Unions. The unfair representation claim is alleged to be barred by the applicable statute of limitations, and deficient as a matter of law based on the undisputed facts. The Title VII claims are attacked (1) by defendant International Union on the ground that it was not made a party to the charges before the EEOC, a prerequisite to this action, and (2) by both the International and Local Unions, alleging the claim to be deficient as a matter of law based on the undisputed facts.

 Equal Pay Act Claims

 Defendant Unions move for summary judgment on the Equal Pay Act claims, alleging that the Equal Pay Act of 1963, 29 U.S.C. § 206(d), affords no legal basis for either injunctive relief or monetary recovery against the defendant Unions in a private action brought by employees who are members of said Unions. Plaintiffs, in their brief opposing the motion, have chosen not to challenge this position. Review of the language and structure of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., as amended by the Equal Pay Act of 1963, adding § 206(d), leads to the inescapable conclusion that the motion should be granted.

 The applicable statutory structure is as follows: The statutorily proscribed conduct of employers and unions is embodied in § 206(d) (1) and (2). Section 215(a) (2) makes a violation of § 206 unlawful. Section 216 establishes penalties for violations of the Act. It provides for criminal penalties, in § 216(a), for willful violations by "any person." However, § 216(b), which allows maintenance of a civil action by employees for monetary damages, provides for such liability only on the part of "any employer." It does not provide for private actions by employees against a union.

 This reading of the statute is supported by the Interpretive Bulletin of the Wage-Hour Administration, codified in 29 C.F.R. § 800, which is entitled to considerable weight in this Court. Roland Electrical Co. v. Walling, 326 U.S. 657, 676, 90 L. Ed. 383, 66 S. Ct. 413 (1946); United States v. American Trucking Assns., Inc., 310 U.S. 534, 549, 84 L. Ed. 1345, 60 S. Ct. 1059 (1940). See also Skidmore v. Swift & Co., 323 U.S. 134, 140, 89 L. Ed. 124, 65 S. Ct. 161 (1944). The Administrator's regulations provide for enforcement of the Act against labor organizations by either injunction proceedings instituted by the Secretary of Labor under § 217, or by criminal prosecutions for willful violations under § 216(a). No provision is made for private damage suits against unions. 29 C.F.R. § 800.166. The only court to consider this question has concluded, similarly, that civil liability on the part of a union is unavailable in private actions under the Act. Wirtz v. Hayes Industries, Inc., 58 Lab. Cas. P 32,085 (N.D. Ohio 1968).

 In dismissing these claims, this Court is not ruling on a district court's equitable power to assess damages against a union in injunction proceedings instituted by the Secretary of Labor under § 217. See Hodgson v. Sagner, Inc., 326 F. Supp. 371 (D. Md. 1971), aff'd sub nom., Hodgson v. Baltimore Regional Joint Board, 462 F.2d 180 (4th Cir. 1972).

 Accordingly, the Equal Pay Act claims against the defendant Unions are dismissed.

 Duty of Fair Representation

 Defendant Unions next claim that the plaintiffs have failed to properly plead, with sufficient specificity, their claims of the Unions' breach of the duty of fair representation. Defendant Unions also argue these claims are barred by the applicable statute of limitations.

 The allegations of the complaint, accepting them as true, which I must on this motion, contain sufficient specificity to set forth the required hostile discrimination by plaintiffs' statutory representatives to allow the requisite showing to be made under Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967), and within this Circuit, Bazarte v. United Transportation Union, 429 F.2d 868 (3d Cir. 1970). Plaintiffs allege that defendant Unions joined in, and failed to protect the female members from, the employer's discriminatory practices, in breach of their duty of fair representation. They thus charge the Unions with bargaining for and establishing a promotional system, with the intention of continuing and preserving sexual discrimination.

 As the Supreme Court has said in Czosek v. O'Mara, 397 U.S. 25, 25 L. Ed. 2d 21, 90 S. Ct. 770 (1970), "'where the courts are called upon to fulfill their role as the primary guardians of the duty of fair representation,' complaints should be construed to avoid dismissals . . .." 397 U.S. at 27. I cannot conclude that it appears beyond doubt that plaintiffs can prove no set of facts to entitle them to relief under their complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 Moreover, since this matter is before me on defendant Unions' motions for summary judgment, I am not limited to the allegations in plaintiffs' complaint. Balowski v. UAW, 372 F.2d 829, 835 (6th Cir. 1967).

 The affidavits submitted on the motion reveal that there are genuine issues of material fact concerning whether the Unions breached the fair representation duty by failing to process plaintiffs' grievances in good faith and without discrimination. Plaintiffs' affidavits claim that Union representatives considered the jobs sought by plaintiffs to be male jobs, did not want plaintiffs to obtain such jobs, and accordingly failed to process grievances properly. There is an allegation that grievances were handled by the Union "just so far to keep the women quiet . . .." (affidavit of Claude Watt). There are allegations of Union agents interfering with grievance filing by women by failing to supply proper paper (affidavit of Lois Tuma). There are even allegations of interfering with the plaintiffs' charges ...

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