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PENNSYLVANIA v. LOCAL UNION NO. 542

August 4, 1972

Commonwealth of Pennsylvania et al., Plaintiffs,
v.
Local Union No. 542, International Union of Operating Engineers et al., Defendants


Higginbotham, District Judge.


The opinion of the court was delivered by: HIGGINBOTHAM

I.

 In Philadelphia 196 years ago, a prophetic national vision was uttered in the Declaration of Independence: "We hold these truths to be self evident, that all men are created equal . . .". Yet, when proclaimed, the vision was not being implemented for many persons *fn1" in the new nation, since nearly one-fifth of the population was held in the chains of slavery. *fn2" Non-property owners seldom had the power to vote, and women were generally excluded from direct participation in the political process. *fn3" Through the subsequent corridors of history extraordinary strides have been made towards expanding liberty, justice and equality. For labor, blacks, the weak and the poor have had many doors open since 1776. *fn4" But the task of securing full equality for some of our citizens is still an urgent and unfinished business. As recently as 1964, the Congress of the United States emphasized that:

 
"In various regions of the country there is discrimination against some minority groups. Most glaring, however, is the discrimination against Negroes which exists throughout our Nation. Today, more than 100 years after their formal emancipation, Negroes, who make up over 10 percent of our population, are by virtue of one or another type of discrimination not accorded the rights, privileges, and opportunities which are considered to be, and must be, the birthright of all citizens." *fn5"

 The instant petition for an injunction pendente lite and a protective order is directly related to the expansion of rights which were assured by Congress in Title VII (Equal Employment Opportunity) of the Civil Rights Act of 1964. 80 Stat. 662, as amended, 86 Stat. 103, 42 U.S.C. § 2000e et seq. So far as the present emergency motion for an injunction pendente lite, the instant case is also a tragic reflection of a partial failure in the twentieth century to make real for all Americans the elusive rhetoric in the Declaration of Independence and the more precise rights guaranteed by the Civil Rights Acts of 1964 and 1972.

 The instant case involved two interrelated phases or, as some might describe it, a lawsuit within a lawsuit. The first phase involves a lawsuit filed on November 8, 1971 and the second phase a petition filed on June 21, 1972, *fn6" which claims that the defendant union and some of their members and agents are pursuing a course of conduct designed to intimidate, harass and preclude named and class plaintiffs from pursuing the lawsuit of November 8, 1971.

 The first suit, filed on November 8, 1971, was initiated by the Commonwealth of Pennsylvania as a plaintiff, through the Attorney General of Pennsylvania, and twelve named individuals as plaintiffs and also as a class action on behalf of all others similarly situated. The causes of action are predicated on 42 U.S.C. §§ 1981, 1982, 1983, 1985 (3), 1988, *fn7" and 2000d and 2000e et seq.

 Federal jurisdiction was based, inter alia, on 42 U.S.C. § 2000e-5(f) and (g), 28 U.S.C. §§ 1331, 1343 (3) and (4). *fn8"

 The first phase of the suit alleges employment discrimination by Local 542, International Union of Operating Engineers, and all contractors and contractor associations who have negotiated or are subject to collective bargaining agreements negotiated with Local Union 542.

 On March 13, 1972, I entered an Order granting plaintiffs' motions (1) for leave to maintain this action as a class action as to class plaintiffs under Rule 23(b) (2) of the Federal Rules of Civil Procedure, (2) for leave to maintain this action as a class action as to class defendants under Rule 23(b) (2) and, (3) denied defendants motions to dismiss certain party plaintiffs, to drop the Commonwealth of Pennsylvania as a plaintiff, to strike certain matters from the complaint, and to strike certain matters from the prayer for relief. Further, I reserved jurisdiction to modify the order as to the scope of the class action.

 Until June 9, 1972, this law suit proceeded in a normal, though vigorously contested fashion. I have not made, nor do I now make, any findings as to whether there is any legal merit in plaintiffs' original charges of racial discrimination as alleged in their November, 1971 complaint. The sole issue now before me is whether there is merit in plaintiffs' June 21, 1972 petition for an injunction pendente lite on the ground that the union and some of its members, officers, and agents are pursuing a course of violence, harassment and other similar acts to intimidate plaintiffs from pursuing the original law suit and from seeking the relief claimed therein.

 After careful consideration of the extensive, and often intense, arguments of counsel, the records and briefs, I conclude that:

 (2) this Court has jurisdiction to grant an injunction pendente lite because of those acts of intimidation and violence designed to discourage plaintiffs from pursuing their November 8, 1971 law suit.

 (3) During the course of the injunction pendente lite hearings there was no evidence introduced to connect even inferentially the defendant contractors or their association with any acts of intimidation, violence or harassment. Thus defendant contractors and association are dismissed as parties to this injunction pendente lite proceeding.

 II.

 FINDINGS OF FACT

 As in most litigation, the instant case cannot be simplistically cast by a finding that only angels dwell on one side and only villains on the other. The reality and complexity of human affairs usually encompass a broader spectrum and mixture of characters who at various times ambivalently display qualities of good or evil. Thus, necessarily, several singular events must be broadly probed to ascertain their interrelationship with prior and subsequent acts. Through the testimony of witnesses, the panorama of this case is not one of only blacks on one side and whites on the other. This case has less of the continuous, brutal racist conduct which was so often legendary in many of the classic southern civil rights cases of the 1960's. *fn10" Instead, this matter has a northern syndrome where individuals have professed commitment to civil rights, but some (though by no means all) of their actions repudiate their rhetoric for equality.

 A. The Events Prior To And Of June 9, 1972.

 Prior to June 9, 1972, some blacks felt that black operating engineers and potential applicants were not receiving equal opportunities for jobs and privileges by reason of discrimination of the unions and the contractors. The Union and the contractors have steadfastly denied any acts of racial discrimination. Prior to June 9, 1972, there is no evidence of record to indicate racial violence or any acts of intimidation against blacks by reason of the November, 1971 lawsuit.

 Apparently, the several depositions have been intense episodes; on no fewer than three or four occasions while in the midst of depositions, Counsel have requested this Court's ruling as to whether witnesses or parties should be sequestered and for other deposition rulings.

 On June 6, 1972, Marion J. Eaddy (hereinafter referred to as "Eaddy") a black and a named plaintiff, was deposed at the law offices of Freedman, Borowsky and Lorry, Philadelphia, Pennsylvania, counsel for the Union. At his deposition, Eaddy testified, inter alia, that George A. Holland (hereinafter referred to as "Holland") had represented and assured him that as an operating engineer he would earn as much as $15,000.00 to $20,000.00 per year. Holland is, like Eaddy, black and a member of Local 542. Since 1969, Holland has been an appointed business agent for Local 542.

 On Friday, June 9, 1972, while outside the union hiring hall, Eaddy alleges that he was questioned by Holland concerning the testimony which Eaddy had purportedly given at the June 6, 1972 depositions about Holland's prior promises and assurances. In Holland's words, the events took place as follows:

 From that point of the conversation, there is complete disagreement as to the events which took place between Holland and Eaddy. Eaddy testified that he "could smell alcohol on him [Holland] before he got there a few yards," that Holland cursed at him and then said: "When did I ever ask you -- when did I ever promise you $15,000 or $20,000?" (N.T. 55.) and he starting pushing Eaddy

 
". . . with both hands and put his hand in his pocket and started easing up on me. He pulled a razor and he was waving the razor in the air." (N.T. 55.)

 Eaddy further testified that Holland was ". . . yelling so hard and loud that Bill Ciavaglia and some men came out and had to drag him into the union hall and get him away from me." (N.T. 55.) Holland denies the altercation outside the union hall and claims that all he did was walk into the union office after having inquired about Eaddy's testimony at the June 6th deposition. (N.T. 55.) Several minutes after the first confrontation outside, Eaddy alleges that Holland threatened him again in the union hall with a straight razor. (N.T. 56, 57.) Eaddy further alleges that in defense he struck Holland several times after Holland's threat with the straight razor, that he knocked Holland to the floor, and kicked him.

 The record as to the June 9th events has such patent contradictions that I am uncertain whether there is a preponderance of credible evidence to establish that Holland was the physical aggressor. Thus if my findings had to be based solely on the events of June 9th, I would not find that plaintiffs had met their burden of proof to obtain injunctive relief. In view of Eaddy's youth and vigor and Holland's older age and purported deteriorating health, I find that it is highly questionable whether Holland was the physical aggressor, though the record shows that by reason of the June 6th deposition Holland was angered and hostile towards Eaddy because of the testimony Eaddy had given on June 6th. At a minimum, the record shows that there has been, at least from Eaddy's standpoint, a long standing antagonism against Holland. Even when using his mildest language, Eaddy characterized Holland as an "Uncle Tom" and thus inferentially as one who for selfish and personal reasons worked against the advancement of other blacks. Holland denies vigorously those charges and asserts that he has been instrumental in helping rather than hindering blacks. (N.T. 236). The events of June 9th are clearly insufficient for injunctive relief. It is significant that plaintiffs never requested any injunctive relief immediately after the June 9th incident; they did not make any claim until further conflicts and violence occurred, which violence had expanded far beyond the mere involvement of Eaddy and Holland.

 B. Incident of June 19, 1972.

 John Dent (hereinafter referred to as "Dent") is black; he has been affiliated with Local 542 since April, 1966. He was an impressive and mild witness. His testimony was totally credible. In the petition for injunctive relief, he is referred to as a class plaintiff, thus one purportedly within a category of the class plaintiffs approved by my order of March 13, 1972.

 Looking for work as an operating engineer, he arrived at the union hiring hall between 8:00 A.M. and 8:30 A.M. on June 19, 1972. (N.T.9.)

 At approximately 10:30 A.M., Dent was asked by the Union dispatcher and business agent, Mr. William Ciavaglia (hereinafter referred to as "Ciavaglia") to go to 18th and Dickinson Streets, where Eaddy purportedly was having difficulty performing an assigned job. Dent complied; thereafter he and Eaddy returned to the hiring hall at about 1:00 P.M. (N.T. 10). Eaddy then paid his dues and was talking to agent Ciavaglia. (N.T. 12.) Dent's absolutely uncontroverted testimony as to what occurred is as follows:

 
"While I was reading the paper I happened to glance up and I see a short, white, Caucasian fellow running across the room with a chair. He hit Marion Eaddy on the back of the head, and Eaddy falls down on the floor, and two guys were standing over Eaddy punching him, and one guy was trying to hit him with the chair. I run over. I pulled the guy with the chair off of Eaddy and holler to the guys in the business hall and the business agent, 'Why don't you help break it up?' I asked them. They just stood and looked at me.
 
"Before I knew it, a large fellow with a blue shirt on hit me across the head with a chair. He had been standing over on the other side of the hall where the rest of the members were playing cards. He hits me across the head with a chair, and I jumped back out of the way.
 
In the meantime Eaddy gets up and still swinging at the guy trying to get him and runs out the hiring hall through the hallway and out the other entrance on 12th Street.
 
"They stopped concentrating on me, I put the chair down and run out in the hall after him.
 
* * *
 
" On my way out, the guys that had attacked Eaddy were standing at the doorway. They hadn't gone outside. They were standing there, two or three guys, and a "C" branch agent. His name is McLaughlin, John McLaughlin was standing there." (N.T., 12-13.)

 Thus, in the presence of the union's business agent, his assistant, a "C" branch agent, and twelve to fifteen union members, Dent and Eaddy were physically attacked and assaulted. (N.T. 139). Dent also testified, and I find, that fifteen minutes prior to the assaults "... the guy who hit Eaddy with a chair [had been] inside Bill Ciavaglia's office with another agent, business agent George Holland." (N.T. 13, 15, 25, 26.) Mr. Ciavaglia denies that he knew or could identify the assailants; (N.T. 140) he testified that he was shoved aside by someone "white" as Eaddy was hit with a chair. (N.T. 139, 161.) I do not find Ciavaglia's testimony credible that he did not know the assailant with whom he and Holland had been previously talking. Moreover, Ciavaglia testified that his office was usually locked and he did not allow anyone in the office except on "rare occasions." (N.T. 158.) I find that the men who attacked Eaddy and Dent were white operating engineers, (N.T. 161) and that the attack was not attributable to any improper or provoking conduct by either Eaddy or Dent. (N.T. 163).

 Further, Mr. Ciavaglia observed the entire attack upon Eaddy and Dent; he rendered no assistance; and he did not call the police. He stated on cross-examination:

 
" Q. Did you break it up?
 
" A. No, I did not.
 
" Q. Did you call the police?
 
" A. No, I did not.
 
" Q. Did you have Mr. Sautter, who was in the building, call the police?
 
" A. No, I did not." (N.T. 165).

 Mr. Sautter, Mr. Ciavaglia's assistant, also observed the events of the 19th. Mr. Sautter's testimony was in many ways evasive. He testified with guarded and questionable candor. However, he admitted to at least the following:

 
" Q. You saw the man actually running with the chair?
 
" A. I seen him when he got into my view, yes.
 
" Q. Did you do anything about it?
 
" A. No.
 
" Q. You didn't?
 
" Q. Did you shout?
 
" A. No.
 
" Q. You could have, couldn't you?
 
" A. No.
 
" Q. Why not?
 
" A. Because I couldn't. I am not used to shouting.
 
* * *
 
" Q. How long did you observe the incident?
 
" A. Oh, I would say no more than ten seconds.
 
" Q. And then what did you do?
 
" A. I went to lunch." (N.T. 210).

 The record conclusively establishes, and I find that Ciavaglia and Sautter (union officials) and other union members present rendered no assistance, aid, or help to Dent and Eaddy while they were being assaulted by white operating engineers. I find that Ciavaglia's and Sautter's refusal to render assistance to Eaddy and Dent was part of a conspiracy and plan to permit Eaddy to be attacked because he is a named plaintiff in the suit and to permit other blacks to be attacked when the latter support the named or class plaintiffs.

 Because I have found that the June 9th event was not sufficient in itself to warrant relief, it is essential to note the significant difference between the June 9th and June 19th events. For whatever antagonism Eaddy may have had for Holland, regardless as to who was the aggressor on June 9th, it is obvious that Eaddy and Dent were neither aggressors nor instigators in any respect as to events which took place on the 19th. The business agent, Mr. Ciavaglia, testified that the men attacking Eaddy were white (N.T. 161) and that the attack on both Eaddy and Dent was unprovoked. (N.T. 163.)

 C. The Incidents of June 20, 1972.

 Plaintiff Cleveland Allen (hereinafter referred to as "Allen"), is a 28-year old black operating engineer. He is a seven-year, eleven-month veteran of the United States Army who had learned his trade while in the service, including a two-year tour of operating heavy equipment in Vietnam. Like Dent, he too was an impressive and mild witness; his testimony was totally credible. "Seeking work", Allen arrived at the hiring hall around 7:20 A.M., on June 20, 1972. Upon arrival he was not aware of the prior events of June 9th and 19th (N.T. 93-97). While hoping for a potential assignment he was outside the union hall around 8:00 A.M., "to catch some air and just wait around." (N.T. 97).

 As a direct result of events which occurred on June 19th, plaintiffs Dent and Eaddy had informed the local police of their plight. (N.T. 17, 19 and 47.) In response to the incident report of June 19th filed by a police officer, on June 20, 1972, the Philadelphia Police Department sent three representatives from the Philadelphia Police Labor Squad to the hiring hall of Local 542 to investigate and maintain the peace. (N.T. 115). Dent testified as to the events of the morning as follows:

 
"Marion Eaddy, Cleveland Allen, who is another operating engineer, and myself, was outside approximately a quarter to 10 or 10 o'clock talking to Officer Morrison when we observed that four or five pickup trucks with anywhere from four to five guys in them start driving along the union hall looking for parking spots. All of the pickups had operating engineers in them, guys I had seen before, and they started parking. There was cars coming in.
 
" Q. How did you know they were operating engineers?
 
" A. Well, I seen some of them before, and all the trucks had campaign stickers all over them saying, 'Business Agent Walsh for business manager.'
 
" Q. That is Robert Walsh, the business manager of the union?
 
" A. Yes.
 
" A. They were all white.
 
" Q. Go on.
 
" A. They all parked, and I guess from forty to fifty guys, they all went into the union hall while we were still outside talking to Officer Morrison. I told Officer Morrison, ' I think there is going to be trouble in here because there has never been that many guys in the hall before unless there is a union meeting.'
 
He says he will go inside and find out why everybody is gathering. Ten minutes later he came back out and said one of the B.A.'s told him the guys are just out of work and hanging around the hall.
 
"I said, 'There is going to be trouble in here, and you better get some help.'
 
He said, 'O.K.' He went and got his car and drove it around the block and parked in front of the union hall. By this time groups of three and four and five guys start coming out of the hall and gathering around, leaning on the cars in the parking lot all the way around where we were standing in front of the hall.
 
" Q. Were these men white or black?
 
" A. They were all ...

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