92 L. Ed. 88 (1947); 2 A Moore's Federal Practice, § 12.08. Basically, the Complaint sets forth in two counts allegations of discrimination based on sex by the employer and by the former collective bargaining agents of plaintiffs.
The Court has held a full and complete hearing, reviewed the briefs and arguments of counsel, and conducted its own independent research. It is the considered judgment of the Court, for the reasons stated herein, that the Motion to Dismiss must be denied in part and granted in part.
Because this Motion stands or falls on the basis of the facts alleged in the Complaint, it is essential that those facts are briefly stated here. Plaintiffs and the class they represent are female employees of defendant G.C. Murphy Company at its McKeesport, Pennsylvania, warehouse. The defendant Union and its International acted as the certified representative of these plaintiffs until February 1, 1971. The defendants entered various collective bargaining agreements which established seniority and compensation plans, one aspect of which was to limit promotions and pay because of sex. Separate wage rates were established for men and women performing the same duties. Separate seniority lists were established which adversely and discriminatorily affected the rights of plaintiffs in regard to hiring, layoffs, recall, and promotion. All of these acts have continued to the present time and have existed prior to July 1, 1964. Count one of the Complaint asserts that these acts constitute a violation of Title VII of the Civil Rights Act of 1964; count two of the Complaint asserts that these acts constitute a violation of the National Labor Relations Act and the Labor Management Relations Act of 1947 as amended, being a breach of the duty of fair representation.
All of the plaintiffs filed written charges under oath with the Equal Employment Opportunity Commission (EEOC). Thereafter the EEOC deferred to the Pennsylvania Human Relations Commission, which waived jurisdiction back to the EEOC. On March 16, 1971, plaintiffs were notified by letter that defendants' voluntary compliance could not be obtained and that plaintiffs were entitled to file suit within thirty days of receipt of said letter. This instant suit was filed the next day, March 17, 1971. This Court takes the position that all the procedural requirements of Title VII have been complied with and that suit was timely filed, especially in view of the allegation that the unlawful employment practices complained of are continuing. It is clear that the restrictions on filing suit for discriminatory employment practices are to provide the EEOC an opportunity to conciliate the grievances and effect voluntary compliance with the Act. Antonopulos v. Aerojet-General Corp., 295 F. Supp. 1390 (E.D. Cal. 1968). In determining whether a civil suit is timely, the applicable test is whether suit was brought within thirty days of receipt of the "suit letter." King v. Georgia Power Co., 295 F. Supp. 943 (N.D. Ga. 1968). Moreover, the failure of the union to protect its members by attempting to delete allegedly discriminatory provisions was by its nature a continuing practice for determining whether the action brought by the employees against the union was timely. Moreman v. Georgia Power Co., 310 F. Supp. 327 (N.D. Ga. 1969). This Court has no doubt, therefore, that the instant suit was timely filed. Certainly a civil action is proper where the efforts of the EEOC in seeking voluntary compliance with the provisions of Title VII fail, because the primary role of the Commission is to seek the elimination of unlawful employment practices by informal means. Fekete v. U.S. Steel Corp., 424 F.2d 331 (3d Cir. 1970).
The holding in Fekete v. U.S. Steel Corp. makes clear that the intention of Congress was:
" . . . first, to outlaw employment practices which discriminate against any individual 'because of such individual's race, color, religion, sex, or national origin'; second, to require that 'a person claiming to be aggrieved' must first resort to the Commission's processes; third, to insure that if the Commission finds reasonable cause, it will attempt to effect voluntary compliance by the employer; fourth, to provide that once the 'person claiming to be aggrieved' satisfies the statutory requirement of affording the Commission the opportunity to perform its statutory function, he has the right to a judicial determination whether he has been the victim of a violation."