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BLACK MUSICIANS OF PITTSBURGH v. LOCAL 60-471

May 8, 1974

BLACK MUSICIANS OF PITTSBURGH and George Childress et al., Plaintiffs,
v.
LOCAL 60-471, AMERICAN FEDERATION OF MUSICIANS, AFL-CIO, and American Federation of Musicians, AFL-CIO, Defendants BLACK MUSICIANS OF PITTSBURGH and George Childress et al., Plaintiffs, v. Joseph SCHAEFER et al., Defendants


McCune, District Judge.


The opinion of the court was delivered by: MCCUNE

McCUNE, District Judge.

We have before us motions to dismiss *fn1" two civil rights actions alleging race discrimination which have been brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); 42 U.S.C. § 1981; *fn2" and various sections of the National Labor Relations Act and Labor Management Relations Act.

 The first action, C.A. 71-1008, was brought by Black Musicians of Pittsburgh *fn3" and six named individuals who are also members of the defendant union -- Local 60-471, American Federation of Musicians and American Federation of Musicians, AFL-CIO.

 The second suit, C.A. 72-787, was brought by the same plaintiffs against six persons alleged to be Pittsburgh bandleaders who employ musicians. *fn4"

 Both suits allege that the defendants maintain or participate in racially discriminatory hiring or referral policies. The suit against the union alleges, in addition, that the union discriminates against Blacks because of its refusal to extend a 5 year agreement under which the formerly all Black and formerly White locals were merged. The agreement, which has expired according to its terms, assured the Black members a certain number of union leadership positions.

 I

 TITLE VII ACTIONS

 A. Procedural Background

 The procedural background of this litigation is somewhat complex, but it must be set out in detail because procedural irregularities lie at the heart of the defendants' motions to dismiss.

 On December 13, 1971, George Childress, on behalf of Black Musicians of Pittsburgh, filed a charge with the EEOC against Local 60-471. The charge alleged racial discrimination regarding positions of union leadership and union job referral policies. *fn5" The EEOC designated the case as number TPI-1134.

 On January 10, 1972, the charge was deferred to the Pennsylvania Human Relations Commission ("PHRC") as required by § 706(b) of Title VII. *fn6" The PHRC acceded to the EEOC's request, according to the EEOC letter to Childress (see footnote 6), terminated its proceeding, and returned the charge to the jurisdiction of the EEOC. The letter to Childress was written in reference to case number TPI-0333.

 On March 29, 1972, Childress and the Pittsburgh Black Musicians filed another charge with the EEOC. In response to the question on the form complaint "Who discriminated against you?" appears the answer "See attached list." The attached list is captioned "Amended Charge of Discrimination" and lists bandleaders Schaefer, Pasquarelli, Lomakin, Simms, Marone, and Purcell as well as Local 60-471 and the international union. The question "Have you filed this charge with a state or local government agency?" was unanswered. The substance of the charge concerns alleged discriminatory hiring and payment practices of the charged parties. *fn7" The charge was given the case file number TPI-2-0333.

 On September 7, 1972, the EEOC issued a right to sue letter on case number TPI-2-0333.

 On September 18, 1972, the EEOC wrote to the union's attorney setting a conciliation meeting for September 22. The letter was in reference to case number TPI-2-0333, and referred to "an amended charge which involved additional parties in the action. . . ."

 On September 22, 1972, the plaintiffs filed a complaint in this court against the six bandleaders (C.A. 72-787). The international union and Local 60-471 were not named as defendants. The complaint alleged that the defendants racially discriminated against the plaintiffs in their hiring policies.

 We must first deal with the apparent inconsistencies in the case numbers which the EEOC has attached to this case during its various administrative stages.

 The initial charge filed with the EEOC was designated as TPI-1134. In February, 1972, in a letter to Childress, the EEOC referred to the charge as TPI-0333. When the second charge was filed in March, 1972, it was designated TPI-2-0333. The right to sue letter referred to case TPI-2-0333. And the reasonable cause decision of January, 1973, referred to case number YPI 3-020.

 While there is probably a rational explanation for this apparently random assignment of numbers, it does not appear of record. The facts indicate, however, that these differing numbers all identify the same case: There is an internal consistency in the letters between the EEOC and the litigants; the second charge was labeled "amended charge"; and the reasonable cause decision (albeit by another number) considered issues raised in both charges. These facts lead to the conclusion that the EEOC treated both charges as one. It follows, then, that the right to sue letter applied to both of the charges filed by Childress, and authorized suit against the local and international union as well as the six bandleaders.

 B. Union's Motion to Dismiss the Title VII Count in 71-1008

 The union has moved to dismiss the Title VII count (Count I) in the complaint against it because the plaintiffs failed to file suit against it within 90 days after the issuance of the right to sue letter as required by the statute.

 The union's position may be technically correct. We cannot close our eyes to the realities of the litigation, however. The plaintiffs first filed suit against the union; then they filed a charge with the EEOC and exhausted all administrative remedies; a right to sue letter issued; and more than 90 days after issuance of the letter the union filed a motion ...


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