year statute is applicable in all § 1983 actions, nor the far more sweeping proposition that this statute is applicable in all actions brought pursuant to the federal civil rights acts. The Court in Henig was merely trying to catalogue the various elements of plaintiffs' claim -- the arrest, imprisonment, damage to reputation, physical mistreatment while incarcerated, etc. -- and to analyze these claims in terms of analogous state causes of action. The Court concluded that under either the one-year statute of limitations for false arrest and malicious prosecution (12 P.A. § 51) and for slander (12 P.S. §§ 31, 32), or the two-year statute for personal injury (12 P.S. § 34), certain of plaintiffs' claims were barred.
Unlike actions brought pursuant to § 1983, which often involve elements that are similar to state causes of action for personal injury, the complaint before us contains allegations of a pervasive system of employment discrimination. The relief sought includes not only damages but also sophisticated equitable remedies such as changes in hiring practices, job training, and seniority. To hold that this action with all of its ramifications is similar to a simple state tort action to recover damage for personal injuries does violence to the language and purpose of § 1981. When Congress left to the courts the task of selecting the state statute of limitations most closely related to the factual situation in a given § 1981 case, they granted this leeway to the courts in reliance upon even-handed decisions in choosing the appropriate statute of limitations to apply. Any other approach would result in an abuse of the discretion granted to the courts.
We conclude, therefore, that the correct state statute of limitations to apply in the instant action is the general six-year statute of limitations found in 12 P.S. § 31.
This conclusion is in accord with Waters v. Wisconsin Steel Works of Int'l Harvester Co., supra, 427 F.2d at 488, and with scholarly commentary.
Since the general six-year statute applies to contract actions as well as to torts, Sherwin v. Oil City National Bank, 18 F.R.D. 188 (W.D. Pa. 1955), aff'd 229 F.2d 835 (3d Cir. 1956), it is applicable whether the § 1981 actions is analogous to a state action based on contract, Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011, 1017 (5th Cir. 1971), or to a state action sounding in tort.
Since there is no challenge to the allegations that Jones was employed by UGI from October 21, 1970, until July 6, 1971, and that McCracken was employed from approximately February until May of 1972, neither plaintiff is barred from pursuing his claim under § 1981 by the statute of limitations.
5. The standing of plaintiffs to name the unions as defendants in this action
Finally, Local 600 and System Council U-22 challenge the standing of all plaintiffs to name them as defendants in litigation under § 1981.
Since we have dismissed the Fraternity as a plaintiff in this action, supra at Part 3, we will discuss the standing problem with respect to Jones and McCracken only.
At the initial oral argument heard in connection with these motions, the Court held the matter under advisement pending discovery with respect to the Title VII and § 1981 claims against the unions. (Order of April 19, 1974.) As a result of this discovery, plaintiffs withdrew Title VII claims against Local 600 and System Council U-22. In connection with the remaining § 1981 claims against the unions, affidavits and copies of the respective collective bargaining agreements have been filed with the Court.
A review of those materials discloses these facts to be undisputed:
(1) Neither Jones nor McCracken has ever been a member of System Council U-22, I.B.E.W., or any of its locals, nor have they ever applied for membership in the Union.
(2) Neither Jones nor McCracken has ever been hired into the bargaining unit covered by System Council U-22, nor, as far as defendants have been able to determine, has either plaintiff ever applied for a job within that bargaining unit.
(3) Neither Jones nor McCracken has ever been a member of Local 600.
(4) Neither Jones nor McCracken has ever been hired into the bargaining unit covered by Local 600, nor, as far as UGI can determine, has either plaintiff ever applied for a job within that bargaining unit.
Granted these undisputed facts, the union defendants argue that neither plaintiff could have suffered injury in fact from the racial discrimination with which the unions are charged, since neither has had any connection with the unions themselves nor with their designated bargaining units. Absent such injury in fact, they contend that this action against them must be dismissed. We agree.
The Supreme Court has frequently held that a party seeking to establish standing must allege "injury in fact" as a result of the defendants' actions. Sierra Club v. Morton, supra, 405 U.S. at 733; Data Processing Service v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970).
Although the asserted injury may be very indirect and the line of causation from the defendant to the plaintiff exceedingly attenuated, United States v. SCRAP, supra, 412 U.S. at 688, the requirement of injury in fact has never been abandoned by the Court. In an analogous case, Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-7, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972), the Court held that plaintiff Irvis did not have standing to challenge the membership requirements of the particular Moose Lodge since he had never attempted to become a member of that organization:
Any injury to appellee from the conduct of Moose Lodge stemmed, not from the Lodge's membership requirements, but from its policies with respect to the serving of guests of members. Appellee has standing to seek redress for injuries done to him, but may not seek redress for injuries done to others. Virginian R.Co. v. System Federation, 300 U.S. 515, 558, 81 L. Ed. 789, 805, 57 S. Ct. 592 (1937); Erie R.Co. v. Williams, 233 U.S. 685, 697, 58 L. Ed. 1155, 1160, 34 S. Ct. 761 (1914). While this Court has held that in exceptional situations a concededly injured party may rely on the constitutional rights of a third party in obtaining relief, Barrows v. Jackson, 346 U.S. 249, 97 L. Ed. 1586, 73 S. Ct. 1031 (1953), in this case appellee was not injured by Moose Lodge's membership policy since he never sought to become a member. (footnote omitted).
In the instant case, it is undisputed that neither of the named plaintiffs was a member of Local 600 or System Council U-22, nor had either plaintiff ever applied for a job within the bargaining units represented by these unions. The only conceivable theory of injury that could be advanced by either plaintiff against the unions is one that is bottomed upon the assumption that he was in fact dissuaded or intimidated in such a manner as to convince him that even applying for a job within the bargaining unit would have been a futile act because of the open, known and notorious character of the discriminatory practices of the union.
Neither plaintiff, however, during any of the lengthy proceedings before this Court, has ever claimed that he was in fact dissuaded from seeking a job in the designated bargaining unit because he was conscious of such open, known and notorious racial discrimination by the unions. Indeed, it is clear that the existence of intimidation or dissuasion of this character would require plaintiffs to come forward and present facts to the Court in opposition to defendants' motions for summary judgment by affidavit or by any other means which clearly sets forth their factual contentions with specificity. Rule 56(e), Federal Rules of Civil Procedure.
Plaintiffs' sole argument with respect to the standing issue raised by the unions is that provisions of the collective bargaining agreements between UGI and the unions, particularly those relating to seniority and written tests for employment, while facially neutral, serve to lock in and perpetuate discriminatory employment patterns. There is no doubt that such provisions may, under certain conditions, have a discriminatory effect; see Griggs v. Duke Power, 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971); United Papermakers and Paperworkers, Local 189 v. U.S., 416 F.2d 980 (5th Cir. 1969). This argument, however, avoids the standing issue completely; rather plaintiffs attempt to leapfrog that vital threshold question and reach the merits of the case without establishing their right to do so.
There is no question that a plaintiff with the requisite standing could challenge those provisions of the collective bargaining agreements. But a plaintiff who lacks standing will not be permitted to litigate the merits of the controversy, since in so doing he would be seeking redress for injuries done to others rather than to himself. Moose Lodge No. 107 v. Irvis, supra, 407 U.S. at 166.
We are satisfied, therefore, that neither Jones nor McCracken has the requisite standing, in his own right, to maintain the present action against Local 600 or System Council U-22.
One further question, however, remains for discussion: To what extent, if any, can these named plaintiffs improve their standing to sue the unions by means of the class action device permitted by Rule 23 of the Federal Rules of Civil Procedure?
In the class action allegations in the complaint, plaintiffs purport to bring this action "on behalf of all Black and Spanish-surnamed persons who have been employed, are employed, might be or might have been employed by defendant Company, and who have been, are, or might be represented by defendant labor organizations, who have been, continue to be, or might be adversely affected by the discriminatory practices alleged herein". It is possible that some members of a class so defined might have the requisite standing to sue Local 600 or System Council U-22. Based on this possibility, can plaintiffs, who lack standing in their own right, achieve derivative standing from hypothetical class members?
The short answer to such a question, of course, is that the Court has not determined, pursuant to Rule 23(c), whether the instant action may be maintained as a class action. While it is true that employment discrimination cases are frequently so maintained, and that the class action device may be the best means to resolve litigation which involves allegations of pervasive, systemic discrimination, Oatis v. Crown Zellerbach Corporation, supra, 398 F.2d at 498-499, there are many cases in which the requirements of Rules 23(a) and 23(b) are not met, and class action status is denied. See e.g., Causey v. Ford Motor Company, 8 FEP Cases 353 (M.D. Fla. 1974); Ayers v. Board of Education, 61 F.R.D. 414, 7 FEP Cases 335 (N.D. Miss. 1973).
Moreover, if we determine that the litigation may proceed as a class action, we are certainly not bound to accept plaintiffs' contention as to the proper scope of the class. See e.g. Kinsey v. Legg, Mason & Co., 60 F.R.D. 91, 6 FEP Cases 194 (D.D.C. 1973), in which the Court determined that plaintiff was not representative of a class that included applicants for positions in retail securities sales, institutional sales, and non-sales departments, because of the differences in qualifications, salaries, and duties of employees of these departments. The class was limited to a group restricted to applicants for retail sales positions.
Hence, it is possible that the case will not proceed as a class action, or that the Court will define the class so as to exclude employees within the bargaining units represented by Local 600 or System Council U-22. Such a determination, of course, must await proceedings pursuant to Rule 23, in which the burden will fall on plaintiffs to make a positive showing that the requirements of Rule 23 are satisfied. Philadelphia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452, 457 (E.D. Pa. 1968).
But aside from the question of class determination under Rule 23, the Supreme Court in the recent case of O'Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674 (January 15, 1974), has made it clear that if none of the named plaintiffs purporting to represent a class establishes the requisite standing to sue the defendants, none may seek relief on behalf of himself or any other member of the class. O'Shea v. Littleton was a class action instituted by 19 named plaintiffs in their own right and on behalf of a class of citizens of Cairo, Illinois, against the State's Attorney, his investigator, the police commissioner, and the Magistrate and Associate Judge of the Alexander County Circuit Court.
The Supreme Court concluded that none of the named plaintiffs had standing to sue two of the defendants, the Magistrate and the Associate Judge:
* * * Moreover, if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class. Bailey v. Patterson, 369 U.S. 31, 32-33, 7 L. Ed. 2d 512, 82 S. Ct. 549 (1962); Indiana Employment Division v. Burney, 409 U.S. 540, 35 L. Ed. 2d 62, 93 S. Ct. 883 (1973). See 3B Moore's Federal Practice, para. 23.10-1, n. 8 (2d ed. 1971).