STEVENS, Circuit Judge.
James Moore was discharged by Sunbeam Corporation on October 17, 1967. He claims that the corporation committed an unfair labor practice, that his union
Although the three issues arise out of the same transaction, many factual details relate primarily to only one issue. We shall, therefore, start by considering the unfair labor practice charge which was the subject of a full evidentiary hearing before a Labor Board Trial Examiner. We shall then discuss the basis for the summary judgments entered in favor of the union and the employer, respectively, in the district court action.
The union represents approximately 2,400 employees in five plants operated by Sunbeam in the Chicago area. Moore, a union member, was one of approximately 1,200 employees at the main plant.
In the collective bargaining contract Sunbeam agreed to a four-stage grievance procedure, culminating, if the union so demanded, in arbitration. On its part, the union, for itself and for its members individually, broadly agreed not to strike, to picket, or to encourage any interference with orderly production.
On August 11, 1967, Moore again wrote to Sunbeam's president demanding a meeting with him and with the union's district representative (Janas). The letter reviewed Moore's unredressed grievances and expressed his feeling that "top management is systematically denying me the opportunity to advance to the full extent of my ability . . . only because I am a Negro." He stated that if a meeting could not be arranged, "the only alternative [is] to present my grievance to my co-workers, and the public." Surprisingly, this letter evoked no response whatsoever from Sunbeam.
In late September Moore added a few paragraphs to his unanswered letter, labeled it an "Open Letter to Mr. Robert P. Gwinn, President," and made 3,500 copies for distribution to various public officials and agencies, his fellow employees, and members of the public. The added paragraphs asked for support in making equal opportunity in employment a fact and requested supporters to "refrain from buying any Sunbeam appliances . . . until justice has been served." At the end of the open letter Moore stated that he would march in front of the Sunbeam plant on October 24, 1967, "in protest of the conditions here."
On October 2, 1967, Moore gave a copy of the open letter to a fellow employee and discussed it briefly with her. Later that day the letter came to the attention
During this period he had several discussions with union representatives. On October 5 Janas prepared a grievance covering Moore's suspension; at that time Janas advised Moore that his actions violated the union contract. Accordingly, Janas responded to inquiries from union stewards by advising that the union would not sanction picketing by Moore. Moore nevertheless insisted that he would march on October 24 without union support.
On October 11 a second stage grievance meeting regarding Moore's suspension was held. Nothing was resolved. On October 17 he was discharged. Both the discharge letter and a letter written to the union on the same day relied, in part, on the ground that Moore was seeking to encourage a strike and product boycott in violation of the union contract.
On October 24 Moore did picket for most of the day, but with almost no support from fellow employees. It is reasonably accurate to state that although he attempted to engage in collective or concerted activity, he actually conducted a one-man demonstration.
A week later a third step grievance meeting was held, but the company refused to reinstate Moore. The union subsequently rejected Moore's request for arbitration of his suspension and discharge grievance.
Thereafter, Moore filed unfair labor practice charges against both the union and the company. The charge against the union was dismissed. The general counsel issued a complaint against Sunbeam alleging that its rule against solicitation by employees was too broad and that Moore had been discharged for engaging in concerted activity protected by § 7 of the Labor-Management Relations Act.
The Trial Examiner and the Board found the solicitation rule invalid, but upheld the discharge. No issue involving the rule is before us since Sunbeam has made the modification directed by the Board.
Although both the Trial Examiner and a majority of the Board concluded that Moore's activity was not protected by the Act, their reasoning was different. The Trial Examiner, stressing the individual character of Moore's campaign, found that his activity was not "concerted," and therefore not covered by the statute. The Board, stressing his expressed intentions and requests rather than his accomplishments, regarded his activity as "concerted," but prohibited by the no-strike clause of the contract. The dissenting member of the Board agreed that Moore was engaged in concerted activity, but felt that he did not violate the no-strike clause.
Certain propositions of law are not disputed. There are kinds of concerted activity that are not protected by the Act. N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 17, 82 S.Ct. 1099, 8 L.Ed.2d 298. Specifically, conduct which violates a no-strike clause in a collective bargaining agreement is not protected and may give rise to discharge. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 246, 82 S.Ct. 1318, 8 L.Ed.2d 462. The critical question here is whether Moore's conduct violated Article 1, Paragraph 5, of the agreement between Sunbeam and the union.
In answering this question we do not merely consider dictionary definitions of the word "strike," or even judicial interpretations of that term in other contexts. Of greater importance is the understanding of the parties who negotiated and drafted the contract before us, the interpretation of administrators who specialize in labor relations matters, and the purpose which the contractual provision was intended to serve. We thus put to one side the dissenting Board member's persuasive exposition of why
Moore had embarked on an independent effort to resolve his dispute with his employer by means other than those which the union, on his behalf, had agreed to employ. In substance, the union and its individual members had agreed to abstain from economic warfare or collective pressures during the term of the contract. To the extent that Moore's conduct can properly be viewed as concerted, it was directly opposed to the intent of the no-strike clause. He asked his co-workers to "refrain from buying any Sunbeam appliances" and for support "to obtain . . . better working conditions for all Sunbeam employees."
Of greater significance, the union agreed with this construction of the contract. Janas so advised Moore in advance of the discharge, but Moore nevertheless persisted in his independent course of action. After the discharge, the union declined to submit the matter to arbitration. The union's interpretation of the scope of its own undertaking is entitled to considerable respect.
We also respect the Labor Board's appraisal of the issue. Cf. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. It might be argued that that case applies only to questions of fact decided by the Board and that we are not bound to follow the Board's construction of written instruments.
There is an undeniable national labor policy to promote arbitration. Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972, see also Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199. No-strike pledges constitute the quid pro quo for a binding arbitration agreement, Lincoln Mills, 353 U.S. at 455, 77 S.Ct. 923; Boys Markets, 398 U.S. at 247-248, 90 S.Ct. 1583; United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 567, 80 S.Ct. 1343, 4 L.Ed.2d 1403, and may even be enforced by injunction notwithstanding § 4 of the Norris-LaGuardia Act. Boys Market, 398 U.S. at 249-253, 90 S.Ct. 1583. A no-strike pledge may even
In addition to the argument that the Board misconstrued the contract, Moore argues that in any event the discharge was not predicated on his breach of contract. The record does indicate that additional factors motivated the company and the no-strike clause was not mentioned in the suspension letter on October 4.
About a year after his discharge, Moore filed a three-count complaint against Sunbeam and the union. Federal jurisdiction was invoked under Title VII of the Civil Rights Act of 1964
The structure and allegations of the complaint make it clear that Moore was attempting to come within the § 301 jurisdiction of the district court as formulated by the Supreme Court in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842. The Court said, "Since the employee's claim is based upon breach of the collective bargaining agreement, he is bound by terms of that agreement which govern the manner in which contractual rights may be enforced." Id. at 184, 87 S.Ct. at 914. The union's contract with Sunbeam contained both no-strike and binding arbitration clauses,
Moore has not alleged that Sunbeam repudiated the contractual grievance provisions with respect to any of the incidents described in the complaint. He predicates § 301 jurisdiction on only two specific incidents: a failure to promote him to a leadman position on October 24, 1966; and the suspension and discharge in October, 1967. In his deposition, two additional specific matters are discussed: the failure to assign him appropriate leadman work when he held that position in department 437 from October 25, 1966, to December 14, 1966; and his allegedly improper transfer from a leadman position to power truck operator on January 10, 1967. Moore testified that grievances were instituted and processed as to the October 24, 1966, incident and as to his work assignment between October 25 and December 14. These grievances were not, however, carried to arbitration. No grievance was filed as to the January 10 transfer; Moore clearly failed to exhaust contractual remedies on that issue. Finally, as indicated in part I of this opinion, the suspension and discharge issue was taken through the third step grievance procedure. Sunbeam did not repudiate the contractual procedure either as to specific incidents mentioned in the complaint or as to those discussed by Moore in his deposition.
Moore's only possibility of coming within the Vaca standards, therefore, is to establish a wrongful refusal on the part of the union to take the grievances to arbitration. The Supreme Court held in Vaca that a union has no mandatory obligation to submit every employee claim to arbitration. 386 U.S. at 191-192, 87 S.Ct. 903. A labor contract must be construed in its totality. Unfortunately, Moore has not placed before us a complete copy of the contract in question;
The summary judgment dismissing Moore's § 301 claims is affirmed.
In a separate order entered on February 3, 1970, the district court dismissed Moore's civil rights claims. He had alleged that Sunbeam had discriminated against him because of his race by denying him a position as "leadman" on October 24, 1966, and thereafter by engaging in "continuous harassment and discrimination." The district court held that the allegations based on the October 24, 1966, incident were untimely, and that those asserting continuous discrimination had not been the subject of a charge filed with the Equal Employment Opportunity Commission.
Before analyzing the specific timeliness issues presented by this record, a brief comment on the statutory scheme is necessary. As a part of a compromise which made it possible to pass the Civil
Thus, time limitations include both an outer limit of 210 days from the occurrence
The question becomes complicated because we must consider when the statutory period ended as well as when it began, and the parties disagree on both points. The period ended on the date the charge was "filed" with the EEOC; the period began when the alleged unlawful employment practice "occurred" within the meaning of the statute. We therefore consider first, the filing date, and then, the occurrence date or dates.
A. The filing date.
The filing date of the charge is in dispute. Moore contends that it was on or before October 3, 1967; Sunbeam argues that it was December 21, 1967. A third possibility is October 19, 1967, the date when the formal charge form was submitted to the EEOC. We reject all these choices, however, and hold that December 19, 1967, should be treated as the filing date.
Moore's attempt to advance the date to October 3 is based on his inclusion of the EEOC as one of numerous agencies and persons to whom a copy of his open letter to the president of Sunbeam was mailed before he started to distribute it by hand on October 3, 1967. Even if the evidence definitely established a mailing to the EEOC prior to that date, we would not regard that type of communication as an adequate filing of the charge which is intended to initiate action by the EEOC. The letter was not addressed to the Commission, it did not request the EEOC to take any action, and if indeed a copy was received by the EEOC, it was not interpreted by that agency as a charge.
On October 19, 1967, Moore did submit a charge to the EEOC on an official form. He had not, however, previously filed a complaint with the Illinois Fair Employment Practices Commission.
Sunbeam's view apparently requires that if a charge is made to the EEOC which is referred to a state agency, then the charge must again be presented to the EEOC, either after the state agency has acted or 60 days after the charge was submitted to the state agency. Thus, Sunbeam would have us hold that the charge could not be considered filed until Moore wrote on December 21 asking the EEOC to resume jurisdiction. That position is now foreclosed by the Supreme Court's recent opinion in Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972). In Love, the EEOC orally referred a charge to the state agency and automatically treated the charge as filed when the state agency declined to take action. The court wrote:
Thus, no second "filing" was required. Since the EEOC had received the charge, we treat it as automatically filed upon termination of the state proceedings or 60 days after initiation of the state proceedings, whichever is earlier.
Thus, the Court contemplated that a charge referred to a state agency need not be resubmitted, but nevertheless cannot be treated as "filed" until the 60-day period has expired or until the state has terminated its proceeding, whichever is earlier. Only then can the stated "purpose both of § 706(b), to give state agencies a prior opportunity to consider discrimination complaints, and of § 706(d), to ensure expedition in the filing and handling of those complaints"
Although not in effect at the time of Moore's charges, Moore argues that we should either apply a subsequent EEOC regulation or at least interpret the statute itself as having the same meaning. That regulation, in pertinent part, reads:
We do not accept that interpretation for three reasons. First, it appears contrary to the Supreme Court's interpretation of the statute in Love, particularly the Court's express recognition of the purpose of § 706(b). Second, it is in conflict with the plain meaning of the statute.
The provision we are construing resulted from the so-called Dirksen-Mansfield compromise. The legislative history of that compromise indicates clearly that the states were intended to have "exclusive jurisdiction" for at least
Under the EEOC's regulation, or under the statute if we were to interpret it as having the same meaning, a charge submitted to the EEOC 208 days after a violation occurred would be referred to the state but the next day would be treated as filed and EEOC processing would begin. The state would be denied its period of at least 60 days to attempt to settle the matter without federal intervention.
B. The occurrence dates.
In the charge filed with the EEOC, Moore listed August 7, 1967, as the most recent date on which discrimination occurred.
His charge, as well as the affidavit supporting it, was primarily directed at incidents which took place in October of 1966 and January of 1967, but also accused Sunbeam of "continuing" discrimination and harassment prior to August 7, 1967. We first consider whether the earlier incidents should be treated as having occurred at a later date, and then consider the alleged continuing violation.
1. Specific incidents.
Moore argues that the time in which he might file a charge based on the October 1966 and January 1967 incidents did not begin to run until after he had completed his efforts to reach a private settlement with his employer. In statutory terms, he contends that the incidents did not occur until his employer finally refused to correct the alleged injustices. For this argument Moore relies on Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir. 1970).
In Culpepper the court held that an employee's timely invocation of his contractual grievance remedies tolled the Title VII statute of limitations. Notwithstanding Sunbeam's contention that Culpepper does not give proper effect to the statutory language and therefore should not be followed in this circuit, we agree with the following statement by Judge Tuttle:
Under the reasoning of Culpepper, the statute of limitations was tolled when, pursuant to the terms of the collective bargaining agreement, Moore initiated a grievance based on the October 24, 1966, incident. Unlike the situation in Culpepper,
It is undisputed that the grievance proceedings contemplated by the union contract terminated on February 16, 1967, when Moore received Sunbeam's third step answer denying the grievance. Thereafter Moore continued his efforts to reach a private settlement by writing to the president of Sunbeam in February, by holding a further informal meeting in March at which he was advised that the president would not meet with him personally and that no further action would be taken on his grievance, and, indeed, by his letter to the president of Sunbeam in August which also made reference to his prior denial of a leadman assignment.
Moore argues that at least the first letter to the president and the informal meeting in March should continue to toll the statute. If his argument were valid, we think it might equally support a continuation of the tolling until August. We believe, however, that the reasoning of Culpepper applies only to the formal grievance procedures contemplated by the collective bargaining agreement. Under this reasoning, although the incident actually "occurred" on October 24, 1966, for limitations purposes the "occurrence" was not completed until Moore exhausted his promptly initiated contractual remedies. We therefore hold that, with respect to the October 24, 1966, incident, the statute began to run on February 16, 1967. Accordingly, we agree with the district court that insofar as the civil rights complaint is predicated on that incident, it is barred.
2. "Continuing" discrimination and harassment.
The district court also held that the claims relating to continuing harassment
Neither the charge, concurrent affidavit, nor subsequent statement alleges any specific act of harassment and discrimination in the period between May 23, 1967, and August 7, 1967. The only allegations relating to this period were (1) a conclusory statement in the charge that the discrimination was "continuous" from January 11, 1967, to August 7, 1967; (2) a similar conclusory statement in the affidavit; (3) a statement in the affidavit that the August 7, 1967, transfer was requested because of "mental agony, and loss of wages brought on by these acts of discrimination"; and (4) a reference in the long chronology filed in March of 1968 to his October 24, 1967, "march" in protest of "unequal opportunities."
In context, the last mentioned allegation, numbered (4), cannot be fairly read as an allegation of racial discrimination. The first two allegations merely describe the continuing consequences of the earlier decision not to promote Moore. The failure to promote may be a "continuing" offense if it is followed by repeated promotions of others in preference to the complainant, but none of the documents before the EEOC specified any incidents of failure to promote after January 10, 1967. Cf. Cox v. United States Gypsum Co., 409 F.2d 289, 290-291 (7th Cir. 1969).
We come finally to the allegation numbered (3) above. Here Moore alleged that he requested a transfer on August 7, 1967, because of "mental agony, and loss of wages brought on by these acts of discrimination." We think that a fair reading of this statement is that Moore did claim that he was a victim of discriminatory conduct sometime before August 7, 1967. We find no evidentiary support for a conclusion that any act of discrimination did occur between May 23 and August 7. The absence of evidence was not, however, the basis for the order entered below, and it is not our function to consider evidentiary questions in the first instance, particularly when the record is as complex as this one.
We therefore hold that the district court has jurisdiction to determine whether, during the period between May 23, 1967, and August 7, 1967, Sunbeam was guilty of any conduct which gave rise to a Title VII claim by Moore.
One final contention requires discussion. Moore argues that he was denied effective assistance of counsel. Moore's court-appointed counsel effectively represented him at the taking of his deposition. However, after the motions for summary judgment were filed, but before he responded thereto, counsel asked leave to withdraw, apparently at Moore's request. He so stated in his motion, and Moore, although he had notice, did not appear to oppose withdrawal. Counsel on appeal argues that summary judgment might not have been granted had counsel continued to represent Moore. However, counsel on appeal has not demonstrated that any material could have been filed in opposition which would have significantly altered the record as it now stands on the § 301 counts. Furthermore, there is no constitutional or statutory right to appointed counsel for the § 301 claims; counsel was appointed under the discretionary authority of Title VII of the Civil Rights Act of 1964, § 706(e), 42 U.S.C. § 2000e-5 (e). On the Civil Rights Act count, Moore will now get all the consideration which trial counsel could have obtained for him. Thus, there is no showing of prejudice sufficient to cause us to conclude that the trial court abused its discretion in permitting Moore's trial counsel to withdraw.
To recapitulate: Moore's petition to review the order of the Labor Board is denied. The summary judgment dismissing all claims asserted under § 301 of the Labor-Management Relations Act is affirmed. The order dismissing the claims asserted against Sunbeam and the union under the Civil Rights Act of 1964 is affirmed except insofar as the complaint contains allegations against Sunbeam relating to the period between May 23, 1967, and August 7, 1967. With respect to that portion of the complaint, the order of the district court is reversed and the case is remanded for further proceedings consistent with this opinion.
ORDER ON PETITION FOR REHEARING
In support of a petition for rehearing, the Equal Employment Opportunity Commission has filed a brief amicus curiae calling our attention to Vigil v. American Tel. & Tel., 455 F.2d 1222 (10th Cir. 1972), which affirmed the district court case cited in note 37 of our opinion. The Tenth Circuit held, in the alternative, (1) that the 210-day period was tolled by EEOC referral to a state agency or (2) that the EEOC could treat the charge as "filed" when received but could defer processing until the state agency had an opportunity to act.
The EEOC has also called our attention to a Conference Report on H.R. 1746, Equal Employment Opportunity Act of 1972, which was issued shortly before our opinion was released and was printed in the Congressional Record for March 2, 1972, pp. H1694-H1699 (Daily ed.), and to a section-by-section analysis of the bill presented to the House by Congressman Perkins, printed in the Congressional Record for March 8, 1972, pp. H1861-H1864 (Daily ed.). The Conference Report cites Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 which we have followed, but does not even mention Vigil. The analysis presented by Congressman Perkins cites Vigil with approval. For reasons which are obvious, we do not believe that those 1972 references can be used to shed any light on the proper interpretation of the 1964 legislation, or can be used as evidence of what Congress might have done if Vigil had been decided differently.
We inadvertently stated that 60 days from October 19 was December 19, rather than December 18. Accordingly, our opinion is modified to permit the district court to consider any unlawful practice occurring after May 22, 1967, and prior to August 7, 1967. In all other respects, the petition for rehearing is denied, including the suggestion that the case be reheard en banc.
Senator Dirksen entered into the Congressional Record an explanation of the compromise measure. Of § 706 he said, in part:
The legislative history as a whole indicates a basic purpose to require the complainant to make his initial filing within 90 days; the extension of the period to 210 days in certain states was plainly intended to permit him to "exhaust" the state procedures. There is no suggestion that complainants in some states were to be allowed to proceed with less diligence than those in other states. The above excerpts indicate that unless a complainant pursues his state remedies with sufficient diligence to permit the state, within 210 days, either to complete its action or to have 60 days in which to act without federal interference, he may not file a timely charge with the EEOC.
We have considered Vigil v. American Telephone & Telegraph Co., 305 F.Supp. 44 (D.Colo.1969), relied on by Moore, but cannot reconcile its reasoning with the scheme of the entire statute analyzed in the light of the history of the Dirksen-Mansfield compromise. Even though a statute of limitations may "permit a rogue to escape," the legislative commands must be respected. See Toussie v. United States, 397 U.S. 112, 123-124, 90 S.Ct. 858, 25 L.Ed.2d 156.
In the present case, the Commission did reject the "continuing" charges and the conclusory allegations were of little more significance than the word "continuing" in the Cox case. One of the factors specifically listed by this court in Cox, 409 F.2d at 291, was that the Commission chose to accept the charge as timely. Here the Commission rejected the charges as untimely. Also in Cox we noted that the company had received notices of other charges of similar current discrimination at or about the same time. No such situation exists here. We said in Cox:
Our own review of the charge and other documents does not persuade us that we should disturb the conclusion of the Commission.