with the requirements of the Act, 42 U.S.C. § 2000e - 5(b).
This holding of the court is in accord with the later decision of the United States Supreme Court in Love v. Pullman Company, 404 U.S. 522, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972) holding that such procedure was sufficient compliance with the federal Act.
(4) Failure to Join the Union as an Indispensable Party
Plaintiff in her 1970 complaints 0558 and 0802, did claim that the union contract operated to discriminate against women. Particular complaints are made with reference to Article XXI as to bumping rights (Stip. Ex. 35, being the agreement between the defendant and Local Union No. 69, International Union of United Automobile, Aerospace and Agricultural Implement Workers of America of which plaintiff was a member). Local Union 69 was not named as a respondent in the proceedings before the EEOC and is not named as a defendant in this case. On the other hand, the defendant has made no motion at any time during the course of this litigation to require plaintiff to join the union as a party. Most of the cases upon which the defendant relies are cases revolving around the motion to require the union to be joined. In the present posture of the case, without a motion to require joinder of the union, we have a question as to whether the union is an indispensable party under Rule 19 of the Federal Rules of Civil Procedure.
We agree with the decision of Judge Weis, now Circuit Judge, of this court in Torockio v. Chamberlain Manufacturing Company, 51 FRD 517 (W.D. Pa. 1970), that the fact that the union was not joined in the proceedings before the EEOC does not prevent joinder under Rule 19. It is noted, however, that in Torockio, the court did not rule on the question as to whether the union should be joined as a necessary party but merely indicated that joinder might be desirable.
Considerable reliance is placed by the defendants also upon Window Glass Cutters League v. American St. Gobain Corp., 47 FRD 255 (W.D. Pa. 1969), aff'd 428 F.2d 353 (3rd Cir. 1970). That case, however, involved claims of rival unions where a decree enforcing the alleged rights of one union would necessarily effect the rights of others. Defendant also relies upon Hodgson v. New Kensington School Board in this court, Civil Action No. 71-1199 (unreported), wherein Judge Teitelbaum held that in an action under the Equal Pay Act, 29 U.S.C. § 201, by certain employees, the union should be joined. Again, what was before the court was a motion to compel joinder, and the employees by enforcing their alleged rights to equal pay were bound to cause the restructuring of the contract between the union and the school district.
In the reverse situation, in United States v. Sheet Metal Workers International Association, 416 F.2d 123 at 132 (8th Cir. 1969), in a suit against the union, the court recognized that the employers with whom the locals had collective bargaining agreements were not parties to the suit but held that they assumed that an agreement would be made to comply with the court's decree, if not, a decree against the union would be sufficient, or a question of joinder of the employers could be left for a later time.
In the instant case, it is true that plaintiff claimed there was discrimination as the result of the provisions of the collective bargaining agreement. In examining these provisions in detail, however, it does appear to the court that the complaint is not so much over the language in the agreement as over the fact that, given the setting of sex discrimination in this plant, the provisions of the contract then operate to the disadvantage of women. If the sex discrimination is eliminated as the result of orders of this court, then it would appear that the provisions as to bumping rights and so forth will work themselves out without any revision of the contract necessarily being involved. See also United States v. Bethlehem Steel Corporation, 312 FS 977 (W.D.N.Y. 1970), aff'd as modified 446 F.2d 652 (2d Cir. 1971).
We adopt plaintiff's argument as set forth in page ten of her reply brief where she says:
"Factually, the plaintiffs are unable to determine if the contract itself is discriminatory, or if it is the defendant's policy of not promoting the second class operators to first class operators which has caused the problem. It would seem that the provision in the contract perpetuates past discrimination, but if the females are made first class operators, the whole question of the contract is moot."