MOTION TO DISMISS
Defendant Chamberlain Manufacturing Corporation and defendants United Electrical, Radio and Machine Workers of America, and Local 624, United Electrical, Radio and Machine Workers of America have asserted numerous reasons why plaintiffs' complaint should be dismissed. For the sake of clarity, we will undertake a seriatim review of the objections to each individual Count of the Six Count Amended Complaint.
The first barrier erected by the defendants in an effort to dismiss Count One is the doctrine of res judicata.6 "[Under] the doctrine of res judicata, a judgment 'on the merits' in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action." Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 99 L. Ed. 1122, 75 S. Ct. 865 (1955). The prior judgments which defendants assert as a bar to the maintenance of the instant litigation will hereinafter be referred to as Torockio # 1 and Torockio # 2. Torockio, et al. v. Chamberlain Manufacturing Corporation, et al., 328 F. Supp. 578 (W.D. Pa. 1971), remanded, 456 F.2d 1084 (3d Cir. 1972), on remand 56 F.R.D. 82 (W.D. Pa. 1972), aff'd. 474 F.2d 1340 (3d Cir. 1973) (Torockio # 1); Torockio, et al. v. Chamberlain Manufacturing Corporation, et al., Civ. No. 72-244 (W.D. Pa. 1973) (Torockio # 2).
Torockio # 1 was also an action instituted against the same defendants named herein based on alleged sex discrimination. This Court held in Torockio # 1 that the filing of a charge with the Equal Employment Opportunity Commission (hereinafter EEOC) within 90 days of the occurrence of the alleged unlawful employment practice and the filing of a civil action within 30 days of the issuance of a Right to Sue letter were both jurisdictional preconditions to the commencement of an action under Title VII. Having concluded that none of the ten (10) named plaintiffs had complied with the jurisdictional prerequisite of filing suit within 30 days of the issuance of a Right to Sue letter, it was ordered that the action be dismissed without prejudice to the plaintiffs.
In Torockio # 2, the plaintiffs, all of whom were or had been employees of the defendant, Chamberlain Manufacturing Corporation alleged that (1) pursuant to the terms of a collective bargaining agreement between them, the defendants established a promotional and seniority system the intent and effect of which was to discriminate against the plaintiffs on the basis of their female sex; (2) the defendant unions breached their duty of fair representation in that they arbitrarily failed to process grievances entered by the plaintiffs; and (3) defendant Chamberlain violated the collective bargaining agreement in that it did not honor plaintiffs' seniority rights in its laying off and recall practices. This Court dismissed the first count of Torockio # 2 based upon Torockio # 1 in that no plaintiff had yet presented a timely right to sue letter.
Counts Two and Three in Torockio # 2 were dismissed because of the failure to aver that plaintiffs had either exhausted or attempted to exhaust any available internal union remedies.
Having set forth the holdings in both Torockio # 1 and Torockio # 2, it is apparent that they do not raise res judicata implications for the case sub judice. Res judicata requires for its application a final judgment "on the merits." A dismissal without prejudice, as in Torockio # 1, does not determine the merits. American Heritage Life Insurance Co. v. Heritage Life Insurance Co., 494 F.2d 3 (5th Cir. 1974); Sack v. Low, 478 F.2d 360 (2d Cir. 1973). Additionally, it was the intention of this Court that Torockio # 1 not bar subsequent litigation. In fact, the petition for reconsideration, review and reinstatement of the complaint in Torockio # 1 was denied "because the Order of June 8, 1971 had dismissed the action 'without prejudice,' and therefore, the plaintiffs were free to refile the action if it were subsequently caused to be made jurisdictionally acceptable." 56 F.R.D. at 84.
Count One of Torockio # 2 was therefore barred by res judicata only in the sense that the same jurisdictional deficiencies of Torockio # 1 continued to exist. Having alleged in the instant suit that plaintiffs have filed timely charges with the EEOC and that this action was commenced within ninety (90) days of the receipt of right to sue notices,
the jurisdictional deficiencies of Torockio # 1 and Torockio # 2 have been cured, thus enabling Count One sub judice to proceed unfettered by the restraint of res judicata.
Defendants next assail Count One alleging that the time period and scope of its allegations go beyond those made in the EEOC charges. Section 706(e) of Title VII provides:
"A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge . . . shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the state or local agency has terminated the proceedings under the state or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the state or local agency." (emphasis added)