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October 25, 1973


Higginbotham, District Judge.

The opinion of the court was delivered by: HIGGINBOTHAM

This matter is before the Court on motions by the third-party defendants to dismiss a third-party complaint filed against them by Temple University (hereinafter referred to as "Temple"). The third-party defendants include the Building Service Employees International Union, Local No. 69 ("Local 69"); the International Brotherhood of University Employees ("IBUE"); David M. Russo, Earl Mack; Willie L. Reeves, Wesley Allen, William E. DeVan, Craig Bond, Melvin Reddish, Wilbur Love, James Moore, Ashmore Johnson, and Theophilus Woodson. The named individuals, excluding David M. Russo who is a trustee ad litem for Local 69, are or had been officers, shop stewards and/or negotiating committee members of IBUE.

 The question presented is whether an employer sued for violating the Equal Pay Act of 1963, Section 6(d) (1) of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 206(d) (1), *fn1" can implead a labor organization seeking reimbursement for any damages which might be incurred as a result of violations of said Act? The issue is in some ways apparently one of first impression, though language on this precise point can be found in several decisions. Because of the significance of any ruling, the Secretary of Labor who is responsible for the administration and enforcement of the Act, has requested and been granted leave to file a brief as amicus curiae.2 For reasons which follow, the Court finds that the motions to dismiss as to Local 69 and David M. Russo will be granted, but rulings on motions of the other third-party defendants will be reserved at this juncture until the conclusion of trial once all the evidence has been adduced and the Court has a complete factual record before it.

 The facts are not complex and can be stated in an abbreviated fashion.

 Last Fall, several females who have been employed by Temple in the capacity of "cleaners" or "maids", instituted an action against Temple under Section 16(b) of the Act, 29 U.S.C. § 216(b), *fn3" for non-compliance with the equal pay provisions of the Act. The complaint alleged that under the governing collective bargaining agreements (1) employees classified as "janitors" received higher wages than the maids or cleaners; (2) only men were hired as janitors and only women as maids; (3) the duties performed by each group were essentially identical.

 Temple filed a third-party complaint against the above-named unions and individuals, contending that if Temple breached the Act it did so only because the unions and their agents caused it to pay the differential wages in contravention of Section 6(d) (2) of the Act, 29 U.S.C. § 206(d) (2). *fn4" In support of this allegation Temple asserts that the collective bargaining agreements specified that janitors be paid at a higher rate than maids and that this wage structure was proposed and designed solely by the unions.

 The only other facts which need be preliminarily mentioned are that from August 1, 1968 to June 30, 1970, Local 69 was the collective bargaining representative for Temple and the designated employees in question. Local 69 was thereafter replaced by IBUE which has been the relevant labor organization from July 1, 1970 to the present.


 At the outset it should be emphasized that Temple acknowledges that there is no explicit statutory authority in the Fair Labor Standards Act or anything in the legislative history which specifically recognizes or creates a civil cause of action in the employer for recovery of damages against a labor organization. Temple argues, however, that federal courts can and in fact have in the past fashioned a federal remedy where a federal right existed but there was no extant remedy to protect or enforce that right. Accordingly, Temple urges that this Court, either by premising the appropriate relief on its equitable powers or bottoming it on common law tort principles, provide the remedy necessary for complete implementation and effectuation of any rights which require vindication.

 Initially, the Court notes that tort liability will be imposed on an individual whose conduct has been proscribed by certain legislation. The Restatement (Second) of Torts § 286 (1965) has enunciated the criteria as follows:

"The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part
"(b) to protect the particular interest which is invaded, and
"(c) to protect that interest against the kind of harm which ...

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