author: BARRETT, Circuit Judge. PICKETT, Circuit Judge

text:
    Douglas DEWELL, Plaintiff-Appellant, v. Wayne LAWSON, Individually, and in his capacity as Chief of Police of the City of Oklahoma City, Oklahoma, and the City of Oklahoma City, a municipal corporation, Defendants-Appellees.
    No. 73-1157.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 12, 1973.
    Decided Jan. 7, 1974.

      Jim Merz, Oklahoma City, Okl., for plaintiff-appellent.
    Robert S. Baker, Oklahoma City, Okl. (Pierce, Couch, Hendrickson, Gust & Short, Oklahoma City, Okl., of counsel, on the brief), for defendant-appellee, Wayne Lawson.
    Jerry R. Fent, Oklahoma City, Okl. (Roy H. Semtner, Oklahoma City, Okl., on the brief), for defendant-appellee, City of Oklahoma City.
    Before PICKETT, HOLLOWAY and BARRETT, Circuit Judges.

       Reassigned from Holloway, Circuit Judge, to Barrett, Circuit Judge, on November 23, 1973.

   BARRETT, Circuit Judge.

Douglas Dewell brought this suit against the City of Oklahoma City and Wayne Lawson, its Chief of Police, for alleged violation of his civil rights under 42 U.S.C. §§ 1983 and 1988, in that he was deprived of rights guaranteeed him by the First, Fourth, Eighth and Fourteenth Amendments of the United States Constitution. The trial court sustained the appellees’ Motions to Dismiss without any memorandum of its reasons.

In testing the validity of the trial court’s order of dismissal, we must assume that the facts alleged in appellant Dewell’s Amended Complaint are true. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Franklin v. Meredith, 386 F.2d 958 (10th Cir. 1967). Rule 8(a), Fed.R.Civ.P. provides that pleadings are to be construed liberally. The purpose of the rule is to eliminate prolixity in pleading and to achieve brevity, simplicity and clarity. Knox v. First Security Bank of Utah, 196 F.2d 112 (10th Cir. 1952). However, where a right or immunity created by the Constitution or laws of the United States is an essential element of the cause of action, it is incumbent upon the plaintiff to adequately and properly allege jurisdictional facts according to the nature of the case. Pan American Petroleum Corp. v. Superior Court of Delaware For New Castle County, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961); Bowman v. White, 388 F.2d 756 (4th Cir. 1968), cert. denied, 393 U.S. 891, 89 S.Ct. 214, 21 L.Ed.2d 172 (1968); Ivey v. Frost, 346 F.2d 115 (8th Cir. 1965).

Appellees have, in their respective briefs on appeal, referred this court to three Oklahoma City ordinances, alleged to have been adopted by the City Council. They were in force and effect at all pertinent times relevant to this case. The ordinances refer to the Chief of Police as the chief administrative officer of the Police Department who is not the official directly charged with police training and who, in any event, has been granted broad discretion relative to recommending Police Department rules and regulations. These ordinances were not referred to in the respective Motions to Dismiss or other supporting pleadings and there is nothing in the record on appeal which in anywise indicates that the trial court considered them in relation to granting the respective Motions to Dismiss.

Municipal ordinances may not be judicially noticed by courts of general jurisdiction, but must be pleaded and proven as any other fact except where a statute specifically provides otherwise. The rationale is that such ordinances stand upon the same footing as private laws, the laws of other states and of foreign countries which must be averred and proven like other facts. Tipp v. District of Columbia, 69 App.D.C. 400, 102 F.2d 264 (1939); Roloff v. Perdue, 31 F.Supp. 739 (N.D.Iowa 1939); Drake v. Tims, 287 P.2d 215 (Okl.1955). And it has been held that, lacking statutory authorization, the court cannot take judicial notice of copies of ordinances offered which lack official certification. Broughton v. Brewer, 298 F.Supp. 260 (N.D.Ala.1969).

Thus, we may look only to the facts alleged in Dewell’s Amended Complaint to determine whether a civil rights cause of action against the appellees has been stated. Those facts are: Douglas Dewell, plaintiff-appellant, is a diabetic. On November 25, 1970, he suffered a diabetic reaction, became incoherent and disappeared from his home in Oklahoma City. His wife reported his acute medical condition and need for immediate treatment to the Oklahoma City Police Department (hereafter referred to as Department) that same date. The Department issued an all points bulletin relating these facts on the morning of November 26th, specifically describing Dewell, his diabetic condition and his need for immediate medical attention. During the night of November 26th Dewell was arrested by an unnamed member of the Department on the charge of public drunkenness and thereafter incarcerated in the Oklahoma City Jail. Dewell carried personal and diabetic identification on his person. Following Dewell’s arrest his wife made repeated calls to the Department. She was advised that Dewell’s whereabouts was unknown. Dewell was jailed without medical treatment until found in his cell on November 30th in a diabetic coma. He was then transferred to Baptist Memorial Hospital. As a result of his diabetic condition and the complications resulting from lack of insulin during his incarceration, Dewell suffered a stroke and brain damage. Consequently, he has suffered mental and physical pain, and his nervous system has been permanently impaired. He alleged that he has sustained loss of earnings, medical expenses and other damages in excess of one million dollars.

Dewell alleged that at all times the defendant-appellee, Wayne Lawson, was Chief of Police of the Department and that in said capacity he and the Department (thus, the City) are responsible for the acts complained of. Dewell alleged in his complaint that:

. . . the defendants, and each of them, failed to establish procedures within the Oklahoma City Police Department whereby jail personnel of the said Department were advised of missing persons listed in all points bulletins with the . . . (Department) ... to detect persons suffering from a diabetic condition. Finally, the defendants . . . failed to provide medical personnel to examine persons suffering from a diabetic condition and who were confined . .

Dewell contends that: (1) the City of Oklahoma City is a “person” within the provisions of 42 U.S.C.A. § 1983 and therefore subject to suit for damages; and (2) Lawson as Chief of Police is subject to suit under 42 U.S.C.A. § 1983 for breach of duty which caused Dewell to be denied his constitutional rights.

This court may only examine the complaint to determine whether there are factual allegations sufficient to withstand the Motions to Dismiss. The allegations necessary to state a claim will not be insufficient unless it appears beyond question that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962). Where there is no issue of fact the question of whether a complaint states a cause of action is, one of law for the court. Schmidt v. United States, 179 F.2d 724 (10th Cir. 1950).

I.

Dewell contends that the City of Oklahoma City is a “person” within 42 U.S.C.A. § 1983 and therefore subject to suit for damages. It is well established that a municipality is not a “person” within the meaning of 42 U.S.C.A. § 1983. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Egan v. City of Aurora, 365 U.S. 514, 81 S.Ct. 684, 5 L.Ed.2d 741 (1961). 11 Okl.St. Ann. (1973 p.p.) § 1755 constitutes a waiver of liability applicable to any city or town to the extent of a claim not in excess of $2,000 arising out of the performance of a governmental function. There is an exemption, however, where the claim is based upon the performance of, or the failure to perform, a discretionary function or duty, whether or not the discretion is abused. 11 Okl.St.Ann. (1973 p.p.) § 1754. A federal court will take judicial notice of the public laws of the states. Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455 (1939); Pure Oil Company v. State of Minnesota, 248 U.S. 158, 39 S.Ct. 35, 63 L.Ed. 180 (1918). In Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), the Supreme Court held that all municipalities are excluded from liability under the Civil Rights Act regardless of whether their immunity has been lifted by state law. Therefore, regardless of 11 Okl.Stat.Ann. § 1755, Oklahoma City cannot be liable under the Civil Rights Act. The trial court did not err in granting Oklahoma City’s Motion to Dismiss.

II.

We hold that the Court erred in granting Police Chief Lawson’s Motion to Dismiss. On the face of the Amended Complaint, Dewell has alleged that Lawson, as Chief of Police, failed to perform a duty imposed upon him which resulted in the deprivation of Dewell’s civil rights, i.e., lack of proper identification and medical care constituting cruel and unusual punishment in light of Dewell’s diabetic condition and subsequent brain damage and physical impairment by reason of non-treatment or care during his confinement. On the record before us we cannot hold, as a matter of law, that the Amended Complaint does not state a cause of action under 42 U.S.C.A. § 1983. We are not informed of the reasons why the trial court granted the respective Motions to Dismiss. None were set forth in the Order and no memorandum opinion was filed.

Lacking any guidance from the trial court for its justification in law for granting the motions, we deem it helpful to succinctly refer to the reasons advanced by the appellees in their. respective briefs in support of the court’s Order dismissing the Amended Complaint in favor of Chief Lawson, as follows: (1) Dewell does not plead negligence or intentional tort and fails to plead a deprivation of civil rights under the color of law; (2) certain alleged ordinances of the City of Oklahoma City (which were not pleaded and therefore not a part of this record on appeal cognizable by this court) purport to declare Chief Lawson an administrative officer with wide discertion relative to adoption of rules and regulations for the Department effective only when approved by the council and in the specific area of police training any duty relative thereto is that of a qualified officer of the Department appointed by the Chief; and (3) under the doctrine of respondeat superior adopted by the Oklahoma Supreme Court, [Vogler v. Jones, 199 Okl. 156, 186 P.2d 315 (1947); Berg v. Willi-bey, 138 Okl. 110, 280 P. 456 (1929)], officers of a municipal corporation are not individually liable for their errors or mistakes of judgment relative to their discretionary acts absent malice or corruption, and in the case at bar the Complaint does not allege error, malice or corruption.

Appellant Dewell concedes that to be actionable under § 1983, the acts of Chief Lawson complained- of must have been done: (a) under color of state or local law; and (b) amount to a deprivation of a federal constitutionally protected right which, in this case, is freedom from the infliction of cruel and unusual punishment. Dewell argues that Chief Lawson’s failure to establish procedures and to train personnel to protect against the damage which resulted to Dewell’s person following his arrest and incarceration by reason of his diabetic condition is actionable as Lawson was negligent in not supervising his subordinates, citing to Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971), rev’d on other grounds, 409 U.S. 418, 92 S.Ct. 683, 30 L.Ed.2d 661 (1973). While recognizing that cruel and unusual punishment, as a constitutional concept, is a principle which has not traditionally lent itself to precise definition, Dewell argues that conduct may be actionable as a deprivation of constitutional rights where no‘force or violence has been utilized and where the conduct constitutes an act of omission. Howell v. Cataldi, 464 F.2d 272 (3rd Cir. 1972); Roberts v. Williams, 456 F.2d 819 (5th Cir. 1971), cert. denied, 404 U. S. 866, 92 S.Ct. 83, 30 L.Ed.2d 110 (1971). The standard of liability in a ease alleging cruel and unusual punishment relating to a claimed omission of medical care is whether, the plaintiff proves exceptional circumstances and conduct so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to basic fairness. Gittlemacker v. Prasse, 428 F.2d 1 (3rd Cir. 1970); Bishop v. Cox, 320 F.Supp. 1031- (W.D.Va.1970). Failure to procure urgently needed medical attention may amount to cruel and unusual punishment. Coleman v. Johnston, 247 F.2d 273 (7th Cir. 1957); Owens v. Alldridge, 311 F.Supp. 667 (W.D.Okla. 1970).

Smith v. Losee, 485 F.2d 334 (10th Cir. 1973), involved a civil rights suit for damages brought by a teacher against the members of the Utah State Board of Education, and the president and three administrators of Dixie College, individually, wherein the' teacher, Smith, alleged that he had been, denied tenure and contract renewal for exercising his protected First Amendment speech rights. We there held that the defense of official immunity or privilege which government officials may rely upon in federal civil rights actions is a federal one which cannot be restricted by state laws or rules relating to sovereign immunity or to official privilege. We further held that public officials are entitled to a privilege defense which is to be found somewhere in the area between that of legislators [absolute for acts committed within the legislative role, as announced in Tenny v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951)] and that of police officers [good faith and probable cause relating to arrests and imprisonments which must be read in the background of tort liability, and which does not require proof of a specific intent to deprive a person of a federal right as announced in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) and Monroe v. Pape, supra], taking into consideration all of the factors including the broadness of the duties imposed and the extent of the powers granted to the particular public officials in the exercise of those duties. Smith v. Losee rejected the contention that the doctrine of official immunity — privilege should be confined to an all-inclusive niche. In effect, that decision requires that each case must be judged on an accountability basis separate and apart from any other, based upon all of the facts, circumstances and factors.

The common-law defense under state law would not be available to a state officer charged in a federal Civil Rights cause of action. Thus the doctrine of respondeat superior cognizable under Oklahoma law is not a defense available to Chief Lawson in this federal cause of action. Our holding in this respect rejected the opposite holdings of Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963), cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964); Salazar v. Dowd, 256 F.Supp. 220 (D.Colo.1966) and other like decisions.

The standard announced in Smith v. Losee must be applied on a ease-to-case basis. It is elusive. In that context and on the record before us here, we cannot hold that the Amended Complaint fails to allege facts sufficient to state a federal civil rights cause of action against' Chief Lawson. For the guidance of counsel and the trial court on remand we observe that the ordinances of the City of Oklahoma City cited by appellees in their respective briefs’ previously referred to may be significant against the background of the cruel and unusual allegations made by Dewell if the ordinances impose duties and obligations which are discretionary only. This court has recognized that acts which are discretionary in nature when performed by a public official do clothe him with a governmental immunity of a limited nature. Coppinger v. Townsend, 398 F.2d 392 (10th Cir. 1968); Franklin v. Meredith, supra.

In a negligence suit, this court held that a federal standard of immunity relieves federal officials from personal liability for alleged torts which result from acts done within the framework of their duties involving the exercise of discretion “which public policy requires be made without fear of personal liability.” Garner v. Rathburn, 346 F.2d 55, 56 (10th Cir. 1965). We further observe that Chief Lawson may present justifiable grounds for his personal exemption from liability on the facts at trial constituting a qualified privilege. The broadness of and the nature of the functions or duties with which a public official is charged must be considered in determining whether an official privilege from liability applies. Furthermore, consideration must be given to the proof, if the cause is tried, supporting the defense of official privilege, i. e., lack of malice, intent, wilfullness, or bad faith, or conversely, a showing of good and proper cause for the act complained of.

We affirm the trial court’s Order granting the Appellee, City of Oklahoma City’s Motion to Dismiss. We reverse the trial court’s Order granting the ap-pellee Police Chief Wayne Lawson’s Motion to Dismiss and remand for further proceedings consistent herewith.

Affirmed in part, reversed in part and remanded.

PICKETT, Circuit Judge

(dissenting in part).

I concur in the affirmance of the dismissal of the action against the City of Oklahoma City, Oklahoma. I respectfully dissent from the determination that the Complaint states a civil rights cause of action (42 U.S.C. § 1983) as to appellant Lawson as Chief of Police of Oklahoma City. It is my opinion that the acts and omissions alleged in the Complaint state only an action for negligence and do not constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution.

The essence of this complaint is that Dewell was arrested by members of the Oklahoma City Police Department on November 25, 1970 for public drunkenness and that at the time of his arrest and incarceration in the city jail he was suffering from diabetic shock. Thereafter his wife reported to the police that Dewell was missing and would be in need of medical treatment. An all-points alert was circulated by the police department, which continued to advise his wife that his whereabouts were unknown, notwithstanding his confinement in the jail. Dewell remained in the jail without medical treatment until November 30, when he lapsed into a diabetic coma and was taken to a hospital for treatment. Permanent injuries are alleged to have resulted from the lack of medical treatment. It is not alleged that he was held in the city jail without a lawful commitment. The allegations that the chief of police had by his negligence deprived Dewell of federal constitutional rights were that he “failed to establish 'procedures within the Oklahoma City Police Department whereby jail personnel of the said Department were advised of missing persons listed in all-points bulletins with the Oklahoma City Police Department.”; further, that the chief of police “failed to train personnel of the Oklahoma City Police Department to detect persons suffering from a diabetic condition” and also that he “failed to provide medical personnel to examine persons suffering from a diabetic condition” while confined in the city jail. Recent decisions have expanded the scope of rights under 42 U.S.C. § 1983 and have construed that section liberally to afford a recovery. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Roberts v. Williams, 456 F.2d 819 (5th Cir. 1972); Whirl v. Kern, 407 F.2d 781 (5th Cir. 1969). Although some cases appear to permit recovery by prisoners upon proof of negligence, no case has been cited, and my research has disclosed none, which holds that the failure to provide procedures and services alleged to have been denied Dewell following his arrest is a denial of a constitutional right. It seems to me that such a requirement places an intolerable burden upon those persons in charge of the operation of state institutions where individuals are committed or arrested persons are received. Usually the discovery of chronic latent ailments necessitates careful laboratory tests. I would affirm the dismissal as to all defendants.

      . The Answer filed to the Complaint discloses that Dewell appeared in municipal court on November 27, 1970 and voluntarily plead guilty to the offense of public drunkenness and was ordered to be held in custody until the court’s sentence was fulfilled.


source: Caselaw Access Project

author: PHILLIPS, Chief Judge.

license: Public Domain

text:
    Peter J. BRENNAN, Secretary of Labor, Plaintiff-Appellant, v. LOCAL 5724, UNITED STEELWORKERS OF AMERICA, AFL-CIO, and United Steelworkers of America, AFL-CIO, Defendants-Appellees.
    No. 73-1171.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 2, 1973.
    Decided Dec. 19, 1973.
    Harlington Wood, Jr., Asst. Atty. Gen., William W. Milligan, U. S. Atty., Robert E. Kopp, Anthony J. Steinmeyer, Attys., Dept, of Justice, Washington, D. C., on brief, for plaintiff-appellant.
    George H. Cohen, Michael H. Gottes-man, Bredhoff, Cushman, Gottesman & Cohen, Washington, D. C., on brief, for defendants-appellees; Bernard Kleiman, Chicago, 111., Stewart R. Jaffy, dayman, Jaffy & Taylor, Columbus, Ohio, of counsel.
    Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
   PHILLIPS, Chief Judge.

A United Steelworkers’ rule provides that no member shall be eligible for election to a local union office unless he has attended at least one-half of the regular meetings of his local union during the previous 36 months. The issue presented on this appeal is whether this attendance requirement is a reasonable qualification uniformly imposed within the meaning of the Labor-Management Reporting & Disclosure Act of 1959, 29 U. S.C. § 481(e).

District Judge Joseph P. Kinneary held the rule to be valid. We affirm.

The Secretary of Labor filed this action challenging as null and void a Union election held in June 1967 by Local Union 5724, United Steelworkers of America, and seeking to have a new election conducted under his supervision. Jurisdiction is based upon 29 U.S.C. § 482.

The Union attendance rule, imposed by Article VII, § 9, of the International Steelworkers’ Constitution, in relevant part is as follows:

“No member shall be eligible for election as a Local Union Officer or Grievance Committeeman unless
-» * * * * *
“(c) He has attended at least one-half (%) of the regular meetings of his Local Union for thirty-six (36) months previous to the June, 1967, election, unless his Union activities or working hours prevented his attendance.”

The facts are largely undisputed. In June 1967, Local 5724 had approximately l, 700 members comprised exclusively of production and maintenance employees at the Ormet Corporation plant in Hannibal, Ohio. The plant operated in shifts. About 800 employees worked the day shift (8 a. m. to 4 p. m.), but only about 439 of these employees were permanently assigned to this shift. Approximately 430 employees worked the 4 p. m. to 12 p. m. shift, 88 of whom were permanently assigned. About 370 employees worked from midnight to 8 a. m. , and of these, 33 were permanently assigned to this night shift. Those employees who were not permanently assigned to a particular shift were rotated from one shift to another.

Local 5724 held regular meetings according to a set schedule at 4:30 p. m. on the second Thursday of each month at a union hall located in Clarington, Ohio. The union hall was eight miles from the plant and could be reached in a 15 minute automobile ride from the plant. The average length of each meeting was about two hours. For the 36 monthly meetings between June 1964 and May 1967, attendance varied from 11 to 117 members, with an average attendance of 45.

At the meeting on May 11, 1967, there were 42 nominations for nine local union offices. Nine of the nominations were declined. An election committee then determined whether the remaining 33 nominees were eligible for office. Under the International Constitution of the Steelworkers, there were three requirements for eligibility to run for and hold local union office; the member must (1) have been in continuous good standing for a period of 24 months immediately preceding the election, (2) have been employed in a plant or mill or other place within the jurisdiction of the local union, and (3) have attended at least 18 of the regular monthly meetings in the 36 months preceding the June 1967 election, unless his union activities or working hours excused his attendance. Since these requirements were a part of the Steelworkers’ International Constitution, they were binding on all 3,700 local unions chartered by the International Union in 1967.

. Although none of the 33 nominees was disqualified on account of the first two requirements, nine nominees were declared ineligible to seek office because of their failure to satisfy the meeting attendance rule. Of the 24 qualifying candidates, 19 had attended 18 or more of the previous 36 meetings and five more qualified candidates by combining attendance with excused absences. As a result of the disqualifications pursuant to the meeting attendance rule, the nominees for recording secretary, treasurer and guide ran unopposed.

After the election, James Hutson, a nominee for President who had been declared ineligible under the meeting attendance rule, filed a timely written protest with the Local in which he contested the reasonableness of the rule. Hut-son had attended 11 of the 36 meetings preceding the election and had no excused absences because he was permanently assigned to the day shift. When Local 5724 denied his protest, Hutson appealed to the International Union’s Executive Board, but that body also denied his protest. Having thus exhausted his internal union remedies, as required by § 402(a) of the Act, 29 U.S.C. § 482(a), Hutson filed a timely complaint with the Secretary.

After the investigation required by § 402(b) of the Act, 29 U.S.C. § 482(b), the Secretary then commenced this action against Local 5724. The International Union intervened as a defendant.

The District Judge conducted an evi-dentiary hearing as to the purposes of the Steelworkers’ meeting attendance rule and concluded that it was intended to accomplish legitimate union goals. Accordingly, the District Judge held that the rule was not an “unreasonable qualification” for candidacy for local union office and that the rule was “uniformly and fairly applied” to each member of Local 5724 in the disputed election. For the reasons set out below, we agree with the decision of the District Court.

We are cited to no decision of the Supreme Court or any Court of Appeals deciding the question of whether the Steelworkers’ attendance rule is a “reasonable qualification uniformly imposed” within the meaning of the statute. Three District Courts have sustained the rule. See, Shultz v. Local Union 6799, United Steelworkers of America, 71 L RRM 2830 (C.D.Cal.1969), aff’d on other grounds, 426 F.2d 969 (9th Cir. 1970), aff’d sub nom., Hodgson v. Local 6799, United Steelworkers of America, 403 U.S. 333, 91 S.Ct. 1841, 29 L.Ed.2d 510 (1971); Shultz v. Local 1299, United Steelworkers of America, 324 F.Supp. 750 (E.D.Mich.1970), aff’d in part, sub nom., Hodgson v. Local 1299, United Steelworkers of America, 453 F.2d 565 (6th Cir. 1971); Shultz v. Local 1150, United Steelworkers of America, 75 LRRM 2869 (S.D.Ind.1970), vacated on other grounds (No. 71-1467, 7th Cir., July 1971, unreported). On the other hand, one District Court in dicta has expressed the view that the Steelworkers’ rule did not constitute a reasonable qualification for eligibility for office holding. Brennan v. Local 3911, United Steelworkers of America, Nos. 71-C-74 (N.D.Ill., March 16, 1973).

The reason why no Court of Appeals has yet reviewed the validity of the Steelworkers’ rule is because in each of the above cases the union member or members who protested the conduct of an election failed to raise the question of the legality of the rule during the course of the internal union procedure and thus did not satisfy the exhaustion requirement set forth in § 402(a) of the Act, 29 U.S.C. § 482(a).

The Supreme Court determined in Hodgson v. Local Union 6799, United Steelworkers of America, supra, 403 U. S. 333, 91 S.Ct. 1841, 29 L.Ed.2d 510 (1971), that the failure to exhaust internal union remedies precluded the Secretary from filing suit to challenge the validity of the rule. Accordingly, the Supreme Court in Local 6799 expressly left unanswered the issue of whether the Steelworkers’ rule was reasonable. 403 U.S. at 341*91 S.Ct. 1841. Subsequently, this court found it “unnecessary to reach” the merits of the Steelworkers’ rule in Hodgson v. Local 1299, United Steelworkers of America, 453 F.2d 565, 575 (6th Cir. 1971).

In the present case the parties stipulated and the District Court found that union member Hutson, a nominee for President of Local 5724, after being declared ineligible for failing to satisfy the meeting attendance rule, thereafter attacked the validity of the rule throughout the course of his timely internal protest first to the Local and then to the International Union. Thus the validity of the Steelworkers’ rule is properly before the court in this action.

In determining the reasonableness of the meeting attendance rule, we are guided by the purpose of the Labor-Management Reporting and Disclosure Act of 1959. The Supreme Court has stated the spirit of the Act as follows; “Title IV’s special function in furthering the overall goals of the LMRDA is to insure ‘free and democratic’ elections.” Wirtz v. Local 153, Glass Bottle Blowers Assn., 389 U.S. 463, 470, 88 S.Ct. 643, 648, 19 L.Ed.2d 705 (1968). Section 401(e) of the Act serves this function by prohibiting candidacy requirements which are not “reasonable qualifications uniformly imposed.”

In interpreting the “reasonable qualifications uniformly imposed” provision, the Supreme Court has announced the rule that § 401(e) is to be strictly construed. In Wirtz v. Hotel, Motel and Club Employees Union, Local 6, 391 U.S. 492, 499, 88 S.Ct. 1743, 1748, 20 L.Ed.2d 763 (1968), the Court stated:

“Congress plainly did not intend that the authorization in § 401(e) of ‘reasonable qualifications uniformly imposed’ should be given a broad reach. The contrary is implicit in the legislative history of the section and in its wording that ‘every member in good standing shall be eligible to be a candidate and to hold office .’ This conclusion is buttressed by other provisions of the Act which stress freedom of members to nominate candidates for office. Unduly restrictive candidacy qualifications can result in the abuses of entrenched leadership that the LMRDA was expressly enacted to curb. The check of democratic elections as a preventive measure is seriously impaired by candidacy qualifications which substantially deplete the ranks of those who might run in opposition to incumbents. [footnote omitted.]”

The Secretary first contends that the meeting attendance rule is per se unreasonable because it bars more than 80 per cent of the members of Local 5724 from running for or holding office. The Secretary relies on Hotel Employees, supra, and Hodgson v. Local Unions 18, International Union of Operating Engineers, 440 F.2d 485 (6th Cir.), cert. denied, 404 U.S. 852, 92 S.Ct. 90, 80 L.Ed.2d 91 (1971).

The restriction at issue in Hotel Employees limited eligibility for major elective offices to members who had previously held office. In striking down this requirement, the Supreme Court looked to its practical impact:

“Plainly, given the objective of Title IY, a candidacy limitation which renders 93% of union members ineligible for office can hardly be a ‘reasonable qualification.’ ” [391 U.S. at 502, 88 S.Ct. at 1749.]

While 93 per cent was held plainly unreasonable, the Supreme Court did not indicate the maximum permissible percentage of members that could be barred by a reasonable rule.

To answer this question, the Secretary turned to this court’s opinion in Local Unions 18, supra. The rule at issue in that ease required that candidates belong to a parent local rather than a branch local. After finding that this rule precluded over 60 per cent of the union members from holding office, this court concluded that the rule was “manifestly unreasonable,” particularly because there was no relationship between the rule and a member’s fitness for office. 440 F.2d at 487.

On the basis of Hotel Employees and Local Unions 18, the Secretary contends that the Steelworkers’ rule is unreasonable because only 1.4 per cent of Local 5724’s members had attended the necessary 18 of 36 meetings, and when excused absences were included, only 6.9 per cent were eligible to be candidates. This would leave 93.1 per cent of Local 5724’s membership disqualified by the meeting attendance rule, but the Secretary acknowledges that this figure may be reduced to as low as 84.8 per cent once certain other credits for work conflicts are considered.

On the other hand, the Steelworkers argue that (1) the effect of the rule is not the touchstone for determining its reasonableness, (2) the Secretary’s per se theory rests on an incorrect interpretation of Hotel Employees and Local Unions 18 and (3) the Secretary’s argument here is contrary to his published position as set forth in his Interpretative Manual. We agree with the Steelworkers’ position.

To satisfy the minimum requirements of the Steelworkers’ rule, all that any member had to do was to devote approximately two hours to union affairs every other month during the three year period between elections. The obligation thus imposed on a member was to spend thirty-six hours at union meetings every three years. Further, it should be emphasized that the meetings followed a set pattern. They were conducted on the second Thursday of each month and were scheduled at the most desirable time for purposes of accommodating a majority of the members (30 minutes after the day shift ended). In addition, the meeting hall was conveniently located within a fifteen minute automobile drive from the plant.

Assuming the accuracy of the Secretary’s mathematical computations that 84 to 93 per cent of Local 5724’s members were disqualified from seeking office in the 1967 election, this is largely the fault of the union members themselves. Since the union meetings were held according to a set pattern and at a convenient location, the real cause of the large scale disqualifications is not the per se existence of the Steelworkers’ rule but the failure of union members to attend the meetings.

Not only does the Secretary mistakenly fail to look to the real cause of the disqualifications here, but he also misinterprets the Supreme Court’s decision in Hotel Employees and our decision in Local Unions 18. The Supreme Court in Hotel Employees noted that only seven per cent of the members satisfied the “prior office holding” requirement; that many of these had been appointed by the incumbents to fill vacancies, thus “enabl[ing] the incumbent group to qualify members for elective office by a practice not available to dissidents;” and that in practice, endorsement by the incumbent group was necessary to get elected to lower office, thus making it impossible for dissidents ever to qualify to run for higher office. 391 U.S. at 505, 88 S.Ct. 1743. The Court finally declared that “control by incumbents through devices which operate in the manner of this bylaw is precisely what Congress legislated against in the LMRDA.” 391 U.S. at 505, 88 S.Ct. at 1751.

This legislative objective is not thwarted by the Steelworkers’ meeting attendance rule. Unlike the Hotel Employees’ bylaw, the Steelworkers’ rule disqualifies no one. Every member can qualify by the relatively unburdensome step of devoting a few hours per month to the affairs of his Union. Steelworkers disqualify themselves as a matter of free choice by their unwillingness to devote a few hours per month to Union affairs. Because of this, as the District Court expressly held in Local 6799, supra, 71 LRRM at 2823, every member could have qualified merely by attending one-half of the meetings.

The self-evident restrictive character of the “prior office holding” rule, when accompanied by the numerical effect of drastically limiting the number of eligible candidates for office, justifies the result in Hotel Employees. It is, however, erroneous to conclude, as the Secretary contends, that Hotel Employees commands blind adherence to a per se theory even where, as here, the rule does not by itself disqualify anyone and, as will be shown below, does serve legitimate union objectives.

The Secretary’s reliance on this court’s decision in Local Unions 18 is also misplaced. The candidacy rule in that case was drastically different from the Steelworkers’ meeting attendance rule. Local 18 was divided into a parent and three sub-locals. Members of all four subdivisions were members in good standing of Local 18. The problem was that only members of the parent local were eligible to run for office and, in turn, this meant that members of the sub-locals who desired to run for local union office had to pay an additional $75 to $90 to satisfy the parent local initiation fee. 440 F.2d at 486-487.

In a bare statistical sense, this resulted in over 60 per cent of Local’s 18’s entire membership being precluded from seeking office. This court invalidated the election in Local Unions 18, on the following two-fold reasoning: the union had applied a rule which (1) placed a price tag on a member’s right to run for office and (2) had no bearing on the member’s fitness to hold office. 440 F. 2d at 487-488. These deficiencies were deemed to be antithetical to the policies of LMRDA. The fact that the Union rule also had the effect of precluding a certain percentage of members, there 60 per cent, from running for office was plainly not the basis of the reasoning of this court.

We believe that the Steelworkers’ rule has a direct, substantial relationship to fitness to hold office in that participation in union meetings is one indicia of interest in union affairs. Further, it does not place any price tag on the right to be a candidate. As such, the rationale of Local Unions 18 does not support the Secretary’s position here.

Further, the position of the Secretary is not consistent with relevant provisions of his own published LMRDA Interpretative Manual. The Manual generally supports qualifications designed to assure that candidates have participated in Union affairs and specifically sanctions 50 per cent attendance requirements over one and two year periods. It is difficult for us to see any significant difference for a meeting attendance requirement covering a period of three years. These regulations, although later amended by the Secretary, were in effect when the dispute here arose.

The Secretary’s second main contention is that the Steelworkers’ rule is unreasonable because of alleged disproportionate effects on (1) potential insurgents, (2) new members and (3) night shift workers. Although the Secretary stipulates that the Steelworkers’ rule is uniformly' imposed in the sense that it applies to all locals and all members, he argues that its practical impact is not uniform for all categories of members and that this lack of uniform imposition demonstrates its unreasonableness. He argues that potential insurgents do not know three years in advance that they may challenge union incumbents, that the rule hampers new members from running for office, and that the meeting time (4:30 p. m.) effectively prevents night shift workers from attending because it occurs midway between the end of one shift (8 a. m.) and the beginning of another (midnight).

We are unpersuaded by the Secretary’s arguments in this regard whether they go to the reasonableness of the rule or to its uniform imposition. In our opinion, valid reasons exist, wholly apart from the meeting attendance rule in question, for requiring potential insurgents and new members to attend a minimum number of meetings before running for office, inter alia, to provide some assurance that nominees for office will have demonstrated their willingness to comply with fundamental obligations to their Union for a reasonable period of time. Further, the Secretary has made no showing that the 4:30 p. m. meeting time imposed an undue hardship on the 33 employees' permanently assigned to the midnight to 8 a. m. shift or the 340 employees working that shift on a rotat-, ing schedule. Union meetings were held only once a month and night shift workers could have attended the 4:30 p. m. meetings if they had desired to do so.

Finally, the Secretary contends that the purported justifications for the rule are imperceptibly small or can be served by less restrictive alternatives. We find this argument equally unpersuasive.

The District Judge conducted an evi-dentiary hearing limited to the purposes of the Steelworkers’ rule. His conclusion of fact was that the rule was adopted for the following three reasons.

“(1) To encourage broad base participation in the affairs of the union, and to obtain as large a turnout as possible at the meetings at which the union’s business is conducted.
“(2) To attempt to assure that candidates have demonstrated an interest in and are likely to be concerned with the problems of the union.
“(3) To attempt to insure that candidates have participated in the affairs of the union and are, therefore, sufficiently familiar with its problems to be able more intelligently to fulfill the numerous responsibilities and duties attendant to holding office.”

On the basis of this evidentiary hearing, the District Judge concluded that the purpose of the Steelworkers’ rule was as follows:

“[T]o accomplish legitimate union goals; namely, to provide a constant cheek upon the growth of unbridled control of the local’s affairs by incumbent officers, as well as to provide a means of familiarizing rank and file members of that which is entailed in the management of the local’s affairs. Shultz v. Local 1299, United Steelworkers of Amer., supra [324 F. Supp.] at p. 756; see also Shultz v. Local 1150, Steelworkers, supra at p. 2877.”

The Secretary’s argument gives us no basis .on which to conclude that the findings of fact of the District Judge are clearly erroneous, Fed.R.Civ.P. 52(a), or that the District Judge erred in concluding that the Steelworkers’ rule was designed to “accomplish legitimate union goals.”

We, therefore, hold that the Steelworkers’ meeting attendance requirement for candidacy for local union office is a “reasonable qualification uniformly imposed” under the facts and circumstances of this case.

Affirmed.

      . 29 U.S.C. § 481(e) provides in part:
      “In any election required by this section which is to be held by secret ballot a reasonable opportunity shall be given for the nomination of candidates and every member in good standing shall be eligible to be a candidate and to hold office (subject to section 504 of this title and to reasonable qualifications uniformly imposed) and shall have the right to vote for or otherwise support the candidate or candidates of his choice, without being subject to penalty, discipline, or improper interference or reprisal of any kind by such organization or any member thereof. * * * The election shall be conducted in accordance with the constitution and bylaws of such organization insofar as they are not inconsistent with the provisions of this sub-chapter.”

      . Section 402, 29 U.S.C. § 482, authorizes the Secretary of Labor to file suit to remedy any violation of § 401 if certain conditions have been met:
      (a) A member of a labor organization—
      (1) who has exhausted the remedies available under the constitution and bylaws of such organization and of any parent body, or
      (2) who has invoked such available remedies without obtaining a final decision within three calendar months after their invocation, may file a complaint with the Secretary within one calendar month thereafter alleging the violation of any provision of section 481 of this title ....
      (b) The Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation of this subchap-ter has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization . . . to set aside the invalid election, if any, and to direct the conduct of an election . . . under the supervision of the Secretary ....
      (c) If, upon a preponderance of the evidence after a trial upon the merits, the court finds—
      * * a: J * *
      (2) that the violation of section 481 of this title may have affected the outcome of an election,
      the court shall declare the election, if any, to be void and direct the conduct of a new election under supervision of the Secretary

      . For a text of the exhaustion requirement contained in § 402(a) of the Act, 29 U.S.O. § 482 (a), see n. 2.

      . In addition, as will be more fully noted infra, the Steelworkers’ rule fosters the objectives of the Act, inter alia, in that by requiring dissidents to attend local union meetings it assures that incumbents cannot administer the union’s affairs in an uncontrolled, arbitrary manner,

      . The following are excerpts from the LMRDA Interpretative Manual:
      “422.250 PARTICIPATION IN UNION AFFAIRS
      Qualifications reasonably designed to assure that candidates have participated in the affairs of the union and are sufficiently familiar with the industry in which the union operates, would not be considered unreasonable in ordinary circumstances, if uniformly imposed. In the absence of knowledge of any special circumstances which cast doubt upon the validity and reasonableness of any of the qualifications they are not to be considered unreasonable in themselves.
      “422.205 ATTENDANCE AT 6 OF 12 UNION MEETINGS MAY BE REASONABLE
      A provision requiring that to be eligible as a candidate for office a member must attend six out of twelve meetings during the year, if apxjlied fairly and uniformly to all members, would not in ordinary circumstances, be an unreasonable qualification of the right to be a candidate for. union office, within the meaning of section 401(e) of the Act.
      “422.206 T2 of 24 MEETINGS MAY BE REASONABLE
      A provision requiring a member to have attended at least one-half of the regular meetings of his local union for 24 months previous to the election before he may be eligible to hold office, is not unreasonable if it is applied fairly and uniformly to all members.
      It might well be unreasonable, however, in circumstances in which attendance presented an unusual degree of difficulty for a significant' proportion of the membership ; as for example, where the local . had an extensive geographical jurisdiction.”

      . The Steelworkers suggest a fourth reason for the rule, to wit, to insure that those who are in the opposition will come to Union meetings in order to keep ripe their right to run against the local Union leadership.


author: PELL, Circuit Judge.

text:
    CONFEDERATION OF POLICE, Individually and on behalf of its members, et al., Plaintiffs-Appellees, v. James B. CONLISK, Jr., Individually and as Superintendent, Chicago Police Department, et al., Defendants-Appellants.
    No. 73-1543.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 14, 1973.
    Decided Nov. 29, 1973.
    Certiorari Denied April 22, 1974.
    See 94 S.Ct. 1971.

      Richard L. Curry, Daniel R. Pascale, Chicago, 111., for defendants-appellants.
    David A. Goldberger, Barbara P. O’Toole, American Civil Liberties Union, Chicago, 111., for plaintiffs-appellees.
    Before CASTLE, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.
   PELL, Circuit Judge.

This is an appeal from an order of the district court which, inter alia,, directed the defendants to reinstate the individual plaintiffs to their civil service positions in the Chicago Police Department. Plaintiffs are the Confederation of Police and six individually named police officers. The defendants are officials of the Police Department and members of the Police Board.

All of the individually named plaintiffs were subpoenaed to appear before a federal grand jury investigating allegations of criminal conspiracies and corruption among members of the Chicago Police Department. At the grand jury, each police officer was informed by the United States Attorney that whatever the witness said could be used against him. Each policeman was also advised of his Fifth Amendment privilege against self-incrimination. In reliance on the prior advice of counsel, each of the plaintiffs invoked the privilege and declined to answer questions. After the appearances at the grand jury, each of the police officers was summoned to appear before the Internal Affairs Division (IAD) of the Chicago Police Department. At this departmental inquiry, each policeman was directed by a superior officer to answer questions as to whether he had invoked the privilege against self-incrimination at his appearance before the grand jury. With a single exception, no police officer was questioned by the IAD concerning his “official duties,” using that term in the sense of obligations ordinarily associated with police work as such.

All six police officers were suspended or discharged for violating certain rules of the Chicago Police Department by invoking the privilege against self-incrimination at the grand jury session. In particular, Rule 51 of the Police Department rules prohibited:

“Failing to give evidence before the Grand Jury, Coroner’s inquest, in court, or before any governmental administrative body, including the Police Board, when properly called upon to do so, or refusing to testify on the grounds that such testimony might incriminate the member, or refusing to sign a waiver of immunity when requested to do so by a superior officer.”

Suit was then brought by the six individual police officers and by the Confederation of Police on behalf of its members challenging the propriety of the suspensions and firings. The district court granted the plaintiffs’ motion for summary judgment and this appeal followed.

I

Analysis of the applicable case law must begin with Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). In Garrity, policemen were questioned at an investigatory hearing about alleged traffic ticket “fixing.” Each policeman, after being told that he would be subject to discharge from office if he refused to answer, gave the requested information. The officers’ answers were then used in subsequent criminal prosecutions in which the policemen were convicted. The Supreme Court reversed the convictions, holding that the threat of discharge was a form of compulsion, depriving the policemen of a free choice as to whether to answer. “[T]he protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office.” 385 U.S. at 500, 87 S.Ct. at 620.

In Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), the companion case of Garrity, the Court held that an attorney could not be disbarred solely because he refused to testify at a judicial inquiry when his refusal was based on the ground that his testimony would tend to incriminate him. Justice Fortas, concurring, went on to state:

“This Court has never held . that a policeman may not be discharged for refusal in disciplinary proceedings to testify as to his conduct as- a police officer. It is quite a different matter if the State seeks to use the testimony given under this lash in a subsequent proceeding [as in Garrity].” 385 U.S. at 519-520, 87 S.Ct. at 630.

In Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), and Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968), the municipal employees involved had pursued an alternative course of action to that taken in Garrity. In Gardner, a policeman, pursuant to a subpoena, appeared before a grand jury investigating bribery and corruption in the police force. The police officer was advised of his privilege against self-incrimination but he was asked to sign a “waiver of immunity” after being told he would be discharged if he did not sign it. The officer in Gardner, unlike the policeman in Garrity, declined to testify and also refused to sign the waiver. He was then given an administrative hearing and discharged solely for his refusal to sign the waiver of immunity form. Similarly, in Uniformed Sanitation Men, municipal employees refused to testify or sign waivers of immunity when called before the city’s Commissioner of Investigation, who was inquiring into improper activities by sanitation employees. As in Gardner, an administrative hearing was then held, after which the sanitation employees were discharged for refusing to testify.

A unanimous Court held the dismissals in both cases to be violative of constitutional rights. As the Court noted in Gardner, the policeman there “was discharged from office, not for failure to answer relevant questions about his official duties, but for refusal to waive a constitutional right. He was dismissed for failure to relinquish the protections of the privilege against self-incrimination.” 392 U.S. at 278, 88 S.Ct. at 1916. The employees in both cases were entitled to remain silent at the inquiries into the alleged improper conduct since “it was clear that New York was seeking . . . testimony from their own lips which, despite the constitutional prohibition, could be used to prosecute them criminally.” 392 U.S. at 284, 88 S.Ct. at 1919.

Justice Fortas, writing for the Court in both Gardner and Uniformed Sanitation Men, expanded on his earlier statement in Spevack that the Court had never held that “a policeman may not be discharged for refusal in disciplinary proceedings to testify as to his conduct as a police officer.” Spevack v. Klein, supra at 519, 87 S.Ct. at 630. In Gardner and Uniformed Sanitation Men, Justice Fortas distinguished the situation then before the Court — where public employees were questioned by their employer only as to whether they exercised their Fifth Amendment privilege and were discharged solely for doing so in circumstances in which any testimony might have been used against them in criminal proceedings — from the situation in which employees were discharged after “an accounting of their use or abuse of their public trust.” 392 U.S. at 284, 88 S.Ct. at 1919. Justice Fortas characterized the latter situation as one in which the public employer demands, with threat of discharge, that its employee “answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself.” 392 U.S. at 278, 88 S. Ct. at 1916. In his footnote to this statement, Justice Fortas specifically noted that “the statements in my separate opinion in Spevack v. Klein, supra, at 519-520 . . . are expressly limited to situations of this kind.” 392 U. S. at 278 n. 5, 88 S.Ct. at 1916. After such an “accounting for public trust,” the employee may be dismissed either on the basis of his answers or for refusal to answer. However, should the employee answer, his answers, under Garrity, cannot be used against him in a subsequent criminal proceeding since they were the result of threat of discharge. In an “accounting for public trust,” therefore, the employee is faced with the choice of answering or being dismissed from his job, but he knows that, should he answer, he cannot be criminally prosecuted on the basis of his own testimony. As Judge Friendly noted in Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation, 426 F.2d 619, 627 (2d Cir. 1970), cert. denied, 406 U.S. 961, 92 S.Ct. 2055, 32 L.Ed.2d 349 (1972), the sequel to the Supreme Court decision:

“[P] ublic employees do not have an absolute constitutional right to refuse to account for their official actions and still keep their jobs; their right, conferred by the Fifth Amendment itself, as construed in Garrity, is simply that neither what they say under such compulsion nor its fruits can be used against them in a subsequent prosecution.”

In sum, then, the Gardner and Uniformed Sanitation Men decisions indicate that a public employer may discharge an employee for refusal to answer where the employer both asks specific questions relating to the employee’s official duties and advises the employee of the consequences of his choice, i. e., that failure to answer will result in dismissal but that answers he gives and fruits thereof cannot be used against him in criminal proceedings. Kalkines v. United States, 473 F.2d 1391, 1393 (Ct. Cl.1973); Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation, 426 F.2d 619, 627 (2d Cir. 1970), cert. denied, 406 U.S. 961, 92 S.Ct. 2055, 32 L.Ed.2d 349 (1972).

In the present case, the policemen declined to answer questions at a grand jury, although they knew that, under Rule 51 of the Chicago Police Department rules, they could be discharged for so doing. When called before the IAD, the policemen were not, with one exception, asked specific, narrow questions relating to their official duties. Each was questioned, rather, only as to whether he had invoked the privilege against self-incrimination at the grand jury. Thereafter, the policemen were fired or suspended solely for invoking the Fifth Amendment at the grand jury. At no time, either at the grand jury or at the IAD inquiry, were the police officers informed that any information which they gave would not be used against them in criminal proceedings. These discharges were clearly unconstitutional under the rulings of Gardner and Uniformed Sanitation Men. The IAD inquiry was in no sense an “accounting of public faith” as the questions were not “specifically, directly, and narrowly” related to official duties and the officers were not advised that their answers would not be used against them in criminal proceedings. TT

Rule 51, to the extent that it denies police officers the privilege against self-incrimination where criminal prosecution may follow, is constitutionally invalid. That portion of it falls directly within the purview of Gardner and Uniformed Sanitation Men.

The district court held that Rules 2, 5, and 6 were unconstitutional as applied in this case. We agree with this determination. Rules 2, 5, and 6 were used only in conjunction with Rule 51 in discharging the six policemen. The underlying “violation” in each case was the exercise of the privilege against self-incrimination before the grand jury, which was prohibited by Rule 51. Since we have found Rule 51 to be constitutionally invalid insofar as it denies the Fifth Amendment right to a public employee where there is a possibility of criminal prosecution, the use of Rules 2, 5, and 6 in conjunction with Rule 51 in such a circumstance was also invalid.

For the reasons above stated, the judgment of the district court is affirmed.

Affirmed.

      . The other pertinent rules are:
      “IV. RULES OE CONDUCT.
      “[T]he following rules of conduct set forth expressly prohibited acts.
      * * *
      Rule 2. Any action or conduct which impedes the Department’s efforts to achieve its goals, or brings discredit upon the Department.
      * * *
      Rule 5. Failure to perform a duty.
      Rule 6. Disobedience of an order or directive, written or oral.”

      . Appellants stress that the United States Attorney at the grand jury could not have discharged the policemen who were city employees. We deem this point to be wholly immaterial to the disposition of the case. The compulsive factor was no less real.

      . The one question to officer Shuey was answered unequivocally.

      . Appellants argue that the IAD is not empowered to grant immunity from prosecution to the police officers. Such a power, however, is not necessary. In Garrity the Supreme Court indicated that the Fifth Amendment itself prohibited the use of statements or their fruits where the statements had been made under the threat of dismissal from public office. Therefore, by advising the officers that their statements, when given under threat of discharge, cannot be used against them in subsequent criminal proceedings, the IAD is not “granting” immunity from prosecution; it is merely advising the officers of the constitutional limitations on any criminal prosecution should they answer. Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation, 426 F.2d 619, 627 (2d Cir. 1970), cert, denied, 406 U.S. 961, 92 S.Ct. 2055, 32 L.Ed.2d 349 (1972).


author: FAIRCHILD, Circuit Judge.

text:
    Thelma BOWE et al., Plaintiffs, v. COLGATE, PALMOLIVE COMPANY et al., Defendants. Appeal of Georgianna SELLERS et al., Appellants.
    No. 72-1343.
    United States Court of Appeals, Seventh Circuit.
    Argued April 6, 1973.
    Decided Nov. 28, 1973.

      Sylvia S. Ellison, Caruthers G. Berger, Washington, D.C., for appellant.
    Thomas C. Galligan, New York City, Jerry Anker, Washington, D. C., Herbert L. Segal, Hubert T. Willis, Louisville, Ky., John O. Moss, Indianapolis, Ind., Marion W. Garnett, Chicago, 111., for ap-pellee.
    Before FAIRCHILD, STEVENS and SPRECHER, Circuit Judges.
   FAIRCHILD, Circuit Judge.

This case involves job restrictions and a seniority system at the Jeffersonville plant of Colgate-Palmolive Company which produced results discriminatory against female employees. Many of the relevant facts appear in the 1967 decision of the district court, Bowe v. Colgate-Palmolive Company, 272 F.Supp. 332 (S.D.Ind., 1967). The district court found that discrimination had occurred and awarded damages to twelve plaintiffs whose claims it considered properly before it.

On appeal, this court expanded the class entitled to pecuniary recovery, and decided, contrary to the district court, that Colgate’s exclusion of women, but not men, from jobs requiring the lifting of more than 35 pounds was unlawful. The cause was remanded with directions to grant such injunctive relief as may be required to eliminate the discriminatory system and any residual effect. Those discriminatorily laid off were to be compensated and the district court was directed to ascertain the feasibility of computing the damage to those who, while not laid off, were denied the opportunity to bid on higher paying jobs. Bowe v. Colgate-Palmolive Company, 416 F.2d 711 (7th Cir., 1969).

On remand, the district court, on February 25, 1970, issued a preliminary injunction which, among other things, opened all jobs without discrimination on the basis of sex. The ultimate judgment appears in an order dated May 7, 1971, as modified February 21, 1972. It required adjustments in seniority of 17 female employees, required certain options to be given to all female employees, and awarded recovery of money to 54. Plaintiff Georgianna Sellers and others have appealed, claiming that the seniority adjustments and job-assignment options were inadequate to eliminate the residual effects of the past discriminatory systems, and that the back-pay awards did not reasonably represent the difference between the amount earned by the women and the amount they would have earned had no discrimination been practiced.

Some members of the class appear to have been satisfied with the relief granted, although Sellers and others were not. Originally all named plaintiffs were represented by a single attorney, and sought relief for themselves and all the approximately 160 females employed at the plant. On the first appeal the named plaintiffs were divided into two groups, the Bowe group and the Sellers group, each employing its own counsel, but asserting the same legal positions. On remand, the two groups took somewhat different stands as to the appropriate remedies, and the Bowe group did not appeal from the new judgment. Their brief as appellees defended the injunctive relief granted, but not the back pay relief. It has not been expressly determined which members of the class, other than the named plaintiffs, are to be represented by either group. Although there are doubtless differences in facts relevant to individual cases which produced the division among named plaintiffs, referred to, they are not clear cut, and sub-classes were never formally defined. No one has argued that if relief be gained by this appeal, the named plaintiff-appel-lees in the Bowe group, or others of the class who may have supported their position, should be excluded from its benefits. Under all the circumstances it seems fair not to exclude any of them.

As will appear, we conclude that the portion of the judgment granting in-junctional relief should be affirmed without modification, but that the back-pay relief granted does not adequately compensate all members of the class for past discrimination.

The seniority system, weekly job assignment system, and the restrictions making many jobs unavailable to women are described in the 1967 district court decision, 272 F.Supp. at 340 to 347. Unnecessary repetition will be avoided here.

Before the 1966 changes in the collective bargaining agreement, the so-called general labor jobs were reserved for men; finishing labor jobs for women. Only four of the seventeen departments contained jobs reserved for women. The majority of women were employed in TAF, the Toilet Articles Finishing Department. The highest rate for a finishing labor job was the same as the lowest rate for a general labor job. Thus women were confined to the work where the pay was, for the most part, lower than that for men.

During the same period, separate seniority rosters were maintained for men and women. It could happen that an employee of either sex might be forced out of the department where seniority was being gained, or be laid off, when employees of the other sex, with less seniority were not, but for various reasons this occurred more often to women than to men.

In April, 1966, the collective bargaining agreement was changed. The separate seniority rosters for men and women were combined and the designations of jobs as male or female were eliminated. Colgate, however, imposed the 35 pound lifting limitation, so that in practical effect, although all jobs were open to men, the better paying jobs which had previously been reserved for men remained, for the most part, closed to women.

After the first appeal, all jobs were opened to women, beginning in March, 1970. Because, however, the seniority rules would require that a new entrant in any department would start last on the list in the weekly competition for jobs, women employees largely remained in the departments where they had previously worked.

Seniority Remedies Ordered by the District Court.

The judgment contained, for the purpose of eliminating remaining disadvantages as a result of past discrimination, the following components:

1. Adjustments in seniority. A layoff in 1963 lasted more than one year and caused a number of women employees to lose seniority. The court ordered previously existing departmental, and in some cases, date-of-employment seniority restored to fourteen. The 1963 layoff was the last one before the effective date of Title VII which caused a loss of seniority as a result of discrimination. The court deemed it impractical to determine whether any earlier layoffs were discriminatory or to ascertain which employees would currently have more or less seniority if there had been no discrimination. Three additional women, who had lost seniority as a result of the 1963 layoff, had been laid off again in 1965, and had not been recalled, were re-entered at the bottom of the recall list and ordered to be given five years date-of-employment seniority if eventually recalled.

2. Option to transfer to new Home department. Each female employee was permitted to enter a new department of her choice where she would be given departmental seniority equal to her seniority in the department she was leaving. Colgate was required to set up an “exposure program” whereby women would be given an opportunity to visit and observe operations of the various departments, examine job descriptions, and be formally instructed in the nature of the work. Employees were to be paid for time spent in the program including overtime rates for overtime. The transfer option had to be exercised within sixty days after completion of the program. Within sixty days after transfer, the employee could return to her former department and re-assert her position there.

3. Option to select secondary department. Each female employee was permitted, within sixty days after the completion of the program, to select a secondary department, in which she would, for one year, have department seniority of July 2, 1965, the effective date of Title VII, or her date-of-employment seniority, if less. Accordingly, if she were forced out of a department within one year, she could bid on jobs in her secondary department with 1965 seniority. This device was intended to establish parity with those men who had seniority in a secondary department as a result of involuntary transfers within one year.

Contentions of the Appellants with Respect to Seniority.

Appellants contend that the adjustments and options granted were insufficient to eliminate the residual effects of past discrimination. They argue that rights under Title VII can not be compromised or bargained away, and that the district court had merely approved a “package deal,” agreed to by some members of the class. They contend that as a matter of law full relief to all members of the class demands the substitution of a seniority system based solely on date-of-employment seniority.

Whether or not compromise settlements are an acceptable basis for granting relief under Title VII is not at issue in the present case. Although conferences were held and the record shows much talk among court and counsel concerning possible settlement and give and take compromise, it is clear that agreement was not attained and the court carried out the process of decision.

It happens that much of the factual material before the court was not developed in evidentiary hearing, but was, as the judge noted, “presented through the uncontradicted statements of counsel in on-the-record conferences with the Court.” All parties signed a stipulation “that an evidentiary hearing is unnecessary to complete the record in this case.” Except for such qualification as may result from the agreed manner of procedure just referred to, the judgment of the district court is to be tested for factual support, consistency with legal principles, and confinement within the scope of discretion in the usual way.

Appellants rely on the principle, with which all parties and the district court agree, that Title VII proscribes practices which are neutral on their face, and even in intent, if they perpetuate the effects of past discrimination. Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Local 189, United Papermak. & Paperwork, v. United States, 416 F.2d 980, 988 (5th Cir., 1969); United States v. Bethlehem Steel Corporation, 446 F.2d 652, 659 (2d Cir., 1971); Robinson v. Lorillard Corporation, 444 F.2d 791, 795 (4th Cir., 1971); United States v. Jacksonville Terminal Company, 451 F.2d 418, 443 (5th Cir., 1971); Head v. Timken Roller Bearing Company, 486 F.2d 870, (6th Cir., 1973). Reliance on departmental seniority for job assignment, as practiced at the Jeffersonville plant is neutral on its face. The key issue is whether the transfer and secondary department options adequately relieve the system of the tendency it would otherwise have of perpetuating the results of job restrictions discriminatory against female employees. The district court considered the options adequate and chose to preserve the system because scrapping it “would upset the rights, expectations, and seniority rank of every employee in the plant, male and female. ... A majority of the employees in the plant [apparently both male and female] have voted against the adoption of a plant seniority system.”

It appears that any tendency of the departmental seniority system to perpetuate previous discrimination arose from the concentration of women in departments where there were relatively few of the better paying jobs for which to compete. We conclude that the transfer option was an adequate equalizing remedy on this score, and the secondary department option corrected any imbalance in the enjoyment of seniority in a secondary department, surviving from past discrimination.

The factual complexity of industrial employment systems makes generalizations from the decided cases very dubious, and each situation must be considered separately. We note, however, the conclusion in other cases that Title VII does not necessarily require more than one bona fide opportunity to transfer to one’s rightful place without loss of seniority. United States v. Hayes International Corporation, 456 F.2d 112, 119 (5th Cir., 1972); United States v. Jacksonville Terminal Company, supra, 451 F.2d at 458-459; United States v. Bethlehem Steel Corporation, supra, 446 F.2d at 666.

We think the district court could reasonably set sixty days as the period within which the transfer option could be exercised. Jobs at Colgate are assigned each week. Considerations applicable where assignments are permanent, and vacancies infrequent, do not apply to this case. The period began at the close of the exposure program, designed to make choice of department as meaningful as possible, and tending to lessen the effect of any ingrained psychological' impediments discouraging exercise of the option.

Appellants contend that the 1965 seniority which a female employee was granted in the secondary department chosen by her failed to equalize the position of female and male employees. Most of the male employees, however, who enjoy seniority in more than one department have less seniority than the 1965 date chosen by the court. Only 10% of the male employees have seniority in more than one department. We are unable to say that this provision was inadequate.

Appellants also contend that as a result of past layoffs and transfers which reflect discrimination, female employees have less seniority in their department, and that this will put them at a continuing disadvantage. They argue that the use of date-of-employment seniority for all purposes is therefore necessary.

It is clear to all, as found by the district court, that it would be impossible to reconstruct the employment history of each employee as if no discrimination existed, and to determine in all instances whether a female employee would have been better or worse off vis-á-vis male employees. In each of the numerous instances of layoff or involuntary transfer, not only would it have to be shown that junior employees were retained, but the effect on the subsequent work history of the individual would have to be ascertained. Considerations other than pay differential doubtless often affected job preference at the time of weekly assignments. Any determination could only rest on speculation.

The district court has, however, taken account of the problem and attempted to make corrections in the seniority status of women where the determination was feasible. Restoration of seniority was ordered for fourteen women who lost as much as eleven years of seniority in a layoff occurring in 1963, the last major layoff causing a loss of seniority as a result of discrimination.

The impossibility of reconstructing “true” seniority for all employees, does not, we think, necessitate conversion of the entire system to date-of-employment seniority, as sought by appellants. Both men and women have widely disparate departmental and date-of-employment seniority as a result of past layoffs and transfers. Some of the disparity for both doubtless reflects the operation of the discriminatory element of the former system; some results solely from the operation of the collective bargaining contract without regard to sex.

A primary purpose of relief from residual effects of past discrimination, accorded to minority workers in other Title YII actions, has been to insure that they do not continue to be locked out of previously restricted jobs or departments. There is evident no inherent reason why this purpose is better served by a carryover of date-of-employment rather than departmental seniority. • If date-of-employment seniority were to be required in the present case, it would be superimposed on over twenty years of gains and losses in departmental status of both males and females often reflecting no discrimination. In framing a remedy it is appropriate to recognize the value of individual expectations not based on advantages derived from past discrimination. See United States v. National Lead Company, 438 F.2d 935, 938 (8th Cir., 1971).

Given the alternatives available to the district court, the impossibility of a perfect solution, and the propriety of attempting to minimize damage to interests not in themselves built upon discrimination, we find no abuse of discretion in selection of remedies.

Back Pay Award.

The district court awarded money judgments for back pay in favor of 54 women. 31 were allowed compensation for a period of layoff in 1965, following the effective date of Title VII; 32 awards represented a differential between the amount received as wages for time worked since the effective date and the amount which would have been earned had the system not been discriminatory.

In each case the problem was to determine in some reasonable fashion “the highest rate of pay for such jobs as [the employee] would have bid on and qualified for if a non-discriminatory seniority scheme would have been in existence.” 416 F.2d at 721. As already observed, exact reconstruction of the work history of each' employee had the system contained no discriminatory element is impossible. The district court chose a test period so as to determine on the basis of experience the jobs each employee would have performed in the absence of discrimination. The period selected was from March 9, 1970 through May 31, 1970, the twelve weeks beginning shortly after the preliminary injunction opening all jobs to women.

Women who obtained the better paid general labor jobs during the test period were awarded the difference between their actual pay for time since July 2, 1965 and an amount computed for the same period on the basis of their individual hourly rate during the test period, less adjustments for contractual increases. They did not, however, receive an upward adjustment in vacation or sick pay, or in the Christmas bonus.

All women who had been laid off in 1965, while men junior to them were retained, received an allowance for that period. Those who did not obtain general labor jobs during the test period, or who had ceased to be employed at Colgate, were paid at the higher of the two finishing labor rates.

We conclude that there were several deficiencies in the method used by the court to compute the amounts of and entitlement to back pay.

A principal deficiency is the selection of the test period. To be valid, the period must be one in which both current and residual discrimination was no longer in operation. It was only a week earlier that the preliminary injunction ordered Colgate to permit women to bid on all jobs. Because the seniority system required women to start as new employees in a new department, the segregation of women within a few departments remained frozen. While a woman could bid on the heavier and better paying jobs in her department, she was unable successfully to bid on those jobs in a different department. In TAF, where most of the women were employed, there were few general labor jobs available. The needs recognized by the court in providing the transfer and secondary department options were present, but those options were not yet available. The test period was therefore not representative for the purpose of determining the jobs in which female employees would have been employed had there been no discrimination in the system.

There were other deficiencies in the procedure for making the awards. Some members of the class who had worked for substantial periods after the effective date of Title VII, and thus been exposed to the discriminatory elements of the system, had resigned or retired before the test period. No differential allowance was made to them on the basis of comparability to others who did have experience in the test period, or on the basis of the average of those who had such experience, or otherwise. Leaving them out implies a presumption that they suffered no loss as a result of dis-....._ crimination, and we think that to the extent any presumption is to be applied, it must be the opposite. Similarly the award of layoff back pay, based on the highest finishing labor rate, to women who were not employed during the test period implies an unwarranted presumption that they would not have chosen better paying jobs if they had had the opportunity.

There were others, still on the payroll, whose experience during the test period was, on account of illness or some other demonstrable reason, not fairly representative. In some instances aging between the effective date of Title VII and the test period may have been a substantial and reasonably demonstrable factor, since the opportunity for an employee to improve her earnings depended on her willingness to do heavier work. Colgate has really offered no justification for lack of adjustment for these factors, or for the failure to allow for the difference between vacation, sick pay, and bonus actually paid on the basis of the earnings received and those items if computed on the basis of test period earnings.

We conclude that there must be a new computation of both differential and layoff back pay awards. Appellants would apparently prefer an allowance based on the average earning rate of all male employees during the appropriate periods. Such an average, however, would reflect an assumption that the female employees would have chosen and been qualified to perform the heaviest jobs as often and to the same extent as male employees. Apparently there are jobs as to which that assumption would be inaccurate. It is claimed, also, that there are some jobs requiring technical skills that few or none of the female employees possessed. The record would not support a decision that the members of the class would be entitled as a matter of right to a computation based on average earning rate of men, just referred to.

Assuming, as is entirely probable, that experience during a test period is the best available basis for determination of what members of the class would have earned in the absence of discrimination, a new test period shoúld be selected and used. The period should begin a reasonable time after the exercise of all transfer and secondary department options. It should be reasonably representative of plant operations. Members of the class should not be excluded from relief because they did not happen to be employed during the test period. In instances where the experience during the test period was not representative for some employee, adjustments should be made. Vacation, sick pay, and bonus should also be appropriately adjusted. Where resort to presumption is deemed necessary, the presumption should be in favor of the member of the class. Each class member should be allowed difieren-tial back pay for all time she worked from the effective date of Title VII until the beginning of the new test period.

The determination of damages for injury can rarely be exact. We are confident that in those instances where the district court finds that experience in the test period does not provide a reasonable and fair basis for an award, the court can devise a method for making a fair and reasonable approximation of the money loss for each individual, with a foundation as adequate as the law requires for an award of damages.

The 23 Uncompensated, Class Members.

There were 23 women employed in TAF, hired in 1964, laid off in the spring of 1965, never called back to work, for whom no relief of any kind was ordered. As of July 2, 1965, the effective date of Title VII, and for a period thereafter, they had the right to be recalled before others were newly hired to fill jobs for which they were qualified.

The contentions concerning this group have not been made entirely clear. It has not been shown that the layoff of these women was the result of the discriminatory elements of the system. It is conceded that three new male employees were hired June 21, July 19, and August 30, 1965. Colgate asserts that two were first class electricians and one a first class sheet metal mechanic, all qualified by tests in their craft. Appellants failed to contradict the assertion or to support in any way the claim that the hiring of the new male employees violated seniority rights of the women or was discriminatory.

The present record does not support reversal as to these women, and if no remand were required for other reasons, that would end the matter. If, however, in the course of proceedings on remand for recomputation of back pay relief, appellants are able to demonstrate to the satisfaction of the district court that the interests of justice require further consideration of the facts as to any in this group, we leave the district court free to proceed with such inquiry, and to grant pecuniary or injunctive relief, or both, accordingly.

Conclusion.

We conclude that the district court has provided relief which is adequate to prevent continuation of the discriminatory practices dealt with in this case.

Back pay relief must be recomputed, but since Colgate did not cross-appeal, there is to be no reduction of the award previously made to any individual.

Insofar as the district court refused to grant any or greater back pay relief to any member of the class, the judgment appealed from is reversed and the cause remanded for further proceedings consistent with this opinion. In all other respects the judgment is affirmed.

Each party shall bear own costs.