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June 9, 1978

ARCHIE PETERSON and ROBERT DOSTER, Individually and on behalf of a class of all others similarly situated

The opinion of the court was delivered by: TROUTMAN


 Plaintiffs are bringing this action under 42 U.S.C. §§ 1981 and 1983, the First, Thirteenth and Fourteenth Amendments, 42 U.S.C. § 2000e, et seq. (Title VII) and 29 U.S.C. § 185 (§ 301), alleging that while plaintiffs were employed by G. & Q. Drywall Company (G. & Q. Drywall) the defendants subjected them to racially discriminatory conduct in that they denied plaintiffs membership and admittance into Local No. 368 (the Union) and into the Lehigh Valley Carpenters' Apprentice Program (the Apprentice Program), and that as a result of these actions and refusal of Union officials to represent plaintiffs in wage disputes with their employer, G. & Q. Drywall, and to properly instruct plaintiffs in work rules in the construction industry, plaintiffs were discharged from employment.

 All defendants move to dismiss for a variety of reasons. We note initially that all parties, including the plaintiffs, agree that Counts IV and V of the Complaint, alleging violations of § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185 (§ 301), cannot be maintained against individuals. However, in the Second Amended Complaint, Counts IV and V are not being brought against the individual defendants. Therefore, their motion to dismiss those counts is moot.


 The General Contractors Association of Lehigh Valley, Inc. (the Contractors Association) moves to dismiss all counts of the Second Amended Complaint (the Complaint).

 The Civil Rights Claims : First of all, the Association contends that the allegations of violations of 42 U.S.C. §§ 1981 and 1983 (1981 and 1983) and the First, Thirteenth and Fourteenth Amendments are insufficiently clear and specific to give rise to a cause of action. The Complaint alleges "discriminatory conduct", but does not describe the conduct. While the Contractors Association is the collective bargaining agent for an association of employer contractors, each of whom chose to be bound by the terms of a collective bargaining agreement with the Lehigh Valley District Council United Brotherhood of Carpenters and Joiners (District Council), the Association has no right to supervise the actions of the contractors with regard to their employees or the District Council. Therefore, the Association has not been properly charged with conduct specifically resulting in harm to the plaintiffs.

 However, the Association also moves to dismiss the cause of action under the First and Fourteenth Amendments and § 1983 because of the absence of state action. There is no allegation that the state was involved in or benefitted from the alleged misconduct, or that state officials conspired with the Contractors Association in any manner, or that the alleged misconduct was approved, supported or encouraged by the state. See, e.g. Adickes v. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1969) (allegation of conspiracy between private defendants and police); Bradford v. Peoples Natural Gas Company, Inc., 60 F.R.D. 432 (W.D. Pa. 1973). Nor is there an allegation of pervasive regulation, or even the limited regulation found insufficient in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 32 L. Ed. 2d 627, 92 S. Ct. 1965 (1972).

 Plaintiffs allege that there is state action present in this case, contending that the defendants entered into an affirmative action agreement with the Pennsylvania Apprenticeship and Training Council in 1972, and that the state has failed to enforce that agreement and the goals set forth therein despite findings of discrimination by both the Equal Employment Opportunity Commission (EEOC) and the Allentown Human Rights Commission (AHRC). Thus defendants are continuing to violate state law, and the state, plaintiffs contend, has by approving the affirmative action agreements also approved the discriminatory hiring practices. Finally, the defendants are signatory to a number of state contracts, and they include anti-discrimination clauses. Thus, these clauses have been violated, but the state has not acted to impose sanction for the violation of these clauses.

 These arguments must fail. It is the clear import of the law that the plaintiff in a Civil Rights action "must specifically allege a direct casual link between some official conduct * * * and the alleged constitutional deprivations". Fialkowski v. Shapp, 405 F. Supp. 946 (3d Cir. 1973). All plaintiffs have done is indicate that the Commonwealth has failed to prevent wrongful conduct. This argument, if accepted, could lead to the conclusion that every crime, such as burglary or murder, results from the failure of a law enforcement officer cloaked with state authority to prevent a violation of a state law. Every victim of such a crime would thus logically be entitled to sue the Commonwealth for failure to prevent violation of its own law. To avoid such an intolerable situation, the Fialkowski requirement must be met; and in this case, that requirement has not been met. Therefore, we shall grant the motion of the Contractors Association to dismiss the Complaint insofar as it alleges causes of action under § 1983 and the First and Fourteenth Amendments.

 We shall also dismiss the claim under the Thirteenth Amendment. That Amendment was meant to abolish slavery or involuntary servitude, not denial of the opportunity to work. The case of Afro-American Patrolmens League v. Duck, 503 F.2d 294 (6th Cir. 1974) does not hold otherwise; rather, that case held that the equal protection clause of the Fourteenth Amendment and Civil Rights Acts provisions were violated by the police promotion system complained of therein.

 The Title VII Claims : First of all, the Association contends that plaintiff Doster is precluded from seeking Title VII relief because nowhere is it alleged that he ever sought relief from the EEOC. It is well settled that exhaustion of remedies is a prerequisite to a cause of action to suit under Title VII. Love v. Pullman, 404 U.S. 522, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972). Plaintiffs do not dispute the contention that Doster never sought relief from the EEOC, and accordingly we shall grant the Association's motion to dismiss Count II of the Complaint, being the action brought by Doster under Title VII. There being no motion for class action certification pending at this time, we need not now consider plaintiffs' observation that Doster will remain a class member because Peterson has filed with the EEOC and Doster is a member of the class that Peterson represents.

 The Association also moves to dismiss Peterson's Title VII claim because it contends that Peterson did not timely file with the EEOC. A charge filed with the EEOC must be timely in order to meet the jurisdictional requirements of Title VII actions. See Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 246 n.8 (3d Cir. 1975), cert. denied, 421 U.S. 1011, 44 L. Ed. 2d 679, 95 S. Ct. 2415 (1975); Bates v. Western Electric, 420 F. Supp. 521 (E.D. Pa. 1976). Peterson was discharged, according to PP16-26 of the Complaint, on March 16, 1972, but the charge he filed with the EEOC indicates that it was filed on September 7, 1973, more than 300 days later. Plaintiffs, however, contend that the Complaint not only complains of the act of discharge, but also of a continuing pattern of discriminatory conduct by the defendants against minorities, continuing after the date of discharge. Under the circumstances, the EEOC charge was timely filed. While accusations such as a refusal of the employer to rehire an employee do not indicate a continuing Title VII violation sufficient to render an EEOC charge timely filed for purposes of jurisdiction of a Title VII suit, see Masco v. United Airlines, 574 F.2d 1127 (3d Cir. 1978), we note that in this action Peterson is complaining not only of the discharge, but also of exclusion from a carpenter's apprentice program. Thus, even after discharge, Peterson suffered from the effects of the alleged ...

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