The opinion of the court was delivered by: COHILL
This action was brought by two named-plaintiffs, Eleanor P. Marchwinski and Margaret A. Samson, cleaning personnel at Oliver Plaza in Pittsburgh, as a class action under Fed.R.Civ.P. 23(b)(2) against the Oliver Tyrone Corporation ("Oliver Tyrone"), Oliver Realty, Inc. ("Oliver Realty"), the Pittsburgh Building Association ("P.B.A.") and Building Service Employees' International Union, AFL-CIO, Pittsburgh Local # 29 ("Local # 29" or the "Union"). Oliver Tyrone and Oliver Realty are closely related, the latter having been a wholly-owned subsidiary of the former at the time this suit was instituted. P.B.A. is an unincorporated association which, according to the allegations of the complaint, acts as the agent of various owners, operators, or managers of office buildings in Pittsburgh for the purpose of negotiating labor agreements with the Union; the plaintiffs' complaint lists over fifty buildings allegedly involved. Defendant Local # 29 is a labor union to which the representative plaintiffs, and those they claim to represent, belong.
The named plaintiffs filed sex discrimination charges against Oliver Realty, Oliver Tyrone, and Local # 29 with the Equal Employment Opportunities Commission ("EEOC") in 1973 and 1974 and subsequently received "right to sue" notices.
In their complaint, plaintiffs set out five separate causes of action in five counts:
Count 1 alleges sex discrimination in employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq. This count alleges that "(since) July 2, 1965, and for years prior thereto, defendants Oliver Tyrone, Oliver Realty and Union have individually and in concert enacted and effected employment policies and procedures of discrimination against females."
Count 2 alleges that the defendants combined and conspired to deprive plaintiffs of equal employment opportunities in violation of the Civil Rights Act of 1861, 42 U.S.C. § 1985(3), and in violation of the Fifth and Fourteenth Amendments of the Constitution.
Count 3 alleges that the defendants unlawfully agreed, combined, and conspired "to boycott women and to prevent women from obtaining higher paying jobs" and to otherwise restrain trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and § 4 of the Clayton Act, 15 U.S.C. § 15.
Count 5 is a pendent state claim, alleging that the defendants have paid females lower wages than males, in violation of the Pennsylvania Equal Pay Act, 43 P.S. § 336.1 Et seq.
Summary of Motions to be Decided
Each of the counts has come under attack by one or more of the defendants by way of Motions to Dismiss under Fed.R.Civ.P. 12(b). Oliver Tyrone and Oliver Realty have jointly moved to dismiss Counts 2, 4 and 5 as to them for failure of plaintiffs to state causes of action upon which relief can be granted.
They have three objections to Count 2: (1) no cause of action is stated under the Fifth or Fourteenth Amendments since neither of these protects rights to be free from discrimination in private employment; (2) § 1985(3) is not applicable to claims of sex discrimination; and (3) plaintiffs' complaint does not sufficiently allege a conspiracy under § 1985(3).
As to Count 4, Oliver Tyrone and Oliver Realty assert that the Labor Management Relations Act of 1947 is not applicable to the non-union defendants.
As to Count 5, Oliver Tyrone and Oliver Realty claim that the Pennsylvania Equal Pay Act exempts persons covered by the Fair Labor Standards Act, such as plaintiffs herein.
Finally, they have moved to dismiss all claims for declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202 as inconsistent with the statutory scheme of Title VII. Defendants Oliver Tyrone and Oliver Realty make no response at this time to the Title VII and antitrust claims against them.
Defendant P.B.A. has joined in all the substantive attacks by Oliver Tyrone and Oliver Realty. Specifically as to it, P.B.A. objects to its inclusion in the Title VII charge on two grounds: (1) that it is not an "employer" under Title VII, and (2) that it was not named or included in the EEOC proceedings. Moreover, P.B.A. has moved to dismiss all of the counts against it for lack of personal jurisdiction, claiming it was not properly served under federal or state procedural rules.
Local # 29 has moved to dismiss Counts 1, 2, 4 and 5 as to it. As to Count 1, Local # 29 submits that this court has no subject matter jurisdiction over it under Title VII because administrative remedies were inadequately followed.
Local # 29 attacks Count 2 for failure to state a claim, contending that: (1) plaintiffs' allegations of fact are insufficient to state a claim under § 1985(3); (2) the conspiracy alleged is not covered by § 1985(3); and (3) neither the Fifth nor Fourteenth amendments create any right in individuals to equal employment opportunity in private employment.
Local # 29 has moved to dismiss Count 4, the Labor Management Relations Act charge, for lack of jurisdiction under § 301, and Count 5, the Pennsylvania Equal Pay Act claim, claiming it excludes employees subject to the federal Fair Labor Standards Act. Further, as do the Oliver defendants, it moves to dismiss any claims for declaratory relief pursuant to 28 U.S.C.A. §§ 2201 and 2202 as inconsistent with the statutory scheme of Title VII. It makes no response at this time to plaintiffs' antitrust claims in Count 3.
After considering whether P.B.A. is properly before this court, we will deal with the remaining motions to dismiss count by count and party by party.
Personal Jurisdiction Over Pittsburgh Buildings Association
In their complaint, plaintiffs describe P.B.A. as "an unincorporated association that acts as the agent of various owners, agents, operators, or managers of office buildings in the City of Pittsburgh in negotiating labor agreements with Union." According to U.S. Marshal's Receipts filed with this Court, the plaintiffs twice attempted service of process on defendant P.B.A. On January 16, 1976, at the plaintiffs' direction, service on P.B.A. was attempted at the Oliver Tyrone headquarters at One Oliver Plaza in Pittsburgh; this is the same place where service was made on defendant Oliver Tyrone on that date. A second attempt to serve P.B.A. was made on March 24, 1976, by directing notice to one Michael R. Chase at 1900 Grant Building in Pittsburgh. Service on March 24 was actually made on Gerry Doyle, a secretary at 1900 Grant Building. Both Mr. Chase and Miss Doyle have submitted affidavits to the effect that neither has ever been an officer or agent of P.B.A. nor had P.B.A. regularly conducted business or association activities at that address. An Oliver Tyrone official submitted a similar affidavit as to the Oliver Plaza address. Plaintiffs, not reaching the question of the second attempted service, assert in their brief in opposition to defendants' motions to dismiss, that service was effected upon P.B.A. by service on its "member-agent," the Oliver Tyrone Corporation, on January 16, 1976. If P.B.A. has no officers or hierarchy (as defendants have asserted in their briefs), plaintiffs argue that failure of the court to recognize service on a member as service on the association would leave P.B.A. "impervious to suit and theoretically free from liability for its wrongful conduct." Defendants respond that those actually served were not agents of P.B.A., and that there is no legal support for the proposition that a member of an association is an agent where there are no official or appointed agents.
Personal service on unincorporated associations is covered in Fed.R.Civ.P. 4(d) which, Inter alia, provides:
(d) SUMMONS: PERSONAL SERVICE . . .
Service shall be made as follows:
(3) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent authorized by appointment or by law to receive service of process . . . .
(7) Upon a defendant of any class referred to in paragraph (1) or (3) . . . it is also sufficient if the summons and complaint are served in the manner prescribed by any statute of the United States or in the manner prescribed by ...