author: HAIGHT, District Judge:

text:
    STARMAKERS PUBLISHING CORPORATION, Plaintiff, v. ACME FAST FREIGHT, INC., Defendant. ACME FAST FREIGHT, INC., Third-Party Plaintiff, v. CHAS. J. BURNHAM CARTAGE, INC., Third-Party Defendant.
    No. 84 Civ. 8637-CSH.
    United States District Court, S.D. New York.
    July 17, 1985.

      Bernard Raphan, P.C., New York City (Ralph Gavin Bell, New York City, of counsel), for plaintiff.
    Moore, Berson, Lifflander & Mewhinney, New York City, and Garson & Grossman, Fairfax, Va.. (Charles D. Cole, Jr., New York City, and Neil Garson, Fairfax, Va., of counsel), for defendant and third-party plaintiff.
   MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

This action is before the Court on defendant Acme Fast Freight, Inc.’s (“Acme”) motion for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), on two of plaintiff Starmakers Publishing Corporation’s (“Starmakers”) claims against it.

Starmakers, a shipper, filed this diversity action, pursuant to 28 U.S.C. § 1332, to recover damages for the alleged late delivery of goods shipped by Starmakers pursuant to a contract of carriage with Acme, a freight forwarder.

Starmakers alleges that on or about June 8, 1984, it entered into a contract of carriage with Acme whereby Acme agreed to transport certain printed matter from New York to Michigan for delivery to one of plaintiff’s customers. This contract was in the form of a bill of lading.

According to Starmakers, Acme made representations that the material would arrive at its destination within a week. Star-makers does not indicate which individual at Acme made those representations, when they were made, or whether those representations were written or oral. In any event, plaintiff contends that due to disputes between defendant and its agents, the shipment arrived five weeks late and that, as a result, Starmakers lost the business of a valuable customer.

On November 30, 1984, Starmakers filed this action seeking damages, first, for negligent performance of duties owed to it by Acme ($109,925.52); second, for restitution of the amount paid pursuant to the terms of the contract ($205.52); third, for loss of the continued business of its customer ($100,000); and finally, for the diminution in value of the printed matter ($9,700.00). It should be noted that the amount of damages sought by plaintiff on its first cause of action, sounding in negligence, is equal to the sum of the alleged damages under the three remaining contractual claims.

Defendant has moved for dismissal of plaintiff’s first and third causes of action.

Acme contends that Starmakers’ first cause of action fails to state a claim for which relief may be granted because a shipper may not sue a carrier in negligence when goods are shipped under a contract of carriage evidenced by a bill of lading. It claims that plaintiff’s exclusive remedy is for breach of the contract under the Car-mack Amendment to the Interstate Commerce Act, 49 U.S.C. § 11707 (“Carmack Amendment”)

Acme also seeks dismissal of plaintiff’s third cause of action which is a claim for special damages. Acme contends that absent a specific allegation in the pleadings that the carrier had notice, actual or constructive, that such loss could occur, plaintiff cannot recover these damages.

In opposition to Acme’s motion, Starmakers contends that the Carmack Amendment does not preempt a shipper’s right to bring a common-law negligence claim against the carrier under state law. Starmakers further contends that special damages may, in exceptional cases, be recoverable even when they were not contemplated by the parties at the time of their agreement.

Finally, plaintiff claims that defendant’s motion is premature because an impleaded third-party defendant has not yet filed an answer to the third-party complaint. Hence plaintiff contends that the pleadings are not closed, and that a motion for judgment on the pleadings is inappropriate at this time.

A. Maturity of Motion

As a threshold issue, I must consider plaintiffs objection to the form of defendant’s motion. Fed.R.Civ.P. 12(c) of the Federal Rules of Civil Procedure provides that “[ajfter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” Plaintiff's contention that defendant’s motion for judgment on the pleading is premature because the pleadings are not closed is without merit. Joinder of issue between these two parties requires only the filing of a complaint and an answer. Both have been filed. Since a grant of this motion would not dispose of Starmakers’ entire cause of action against Acme, Acme’s impleader action for indemnity from the third party remains unaffected. The third-party action is thus irrelevant to defendant’s motion. I therefore proceed to consider the merits of defendant’s motion.

B. Common Law Negligence Claim

Although the Supreme Court has interpreted the Carmack Amendment as preempting state law in actions for breach of a contract of interstate carriage as evidenced by a bill of lading, Adams Express Co. v. Croninger, 226 U.S. 491, 506-507, 33 S.Ct. 148, 152-153, 57 L.Ed. 314 (1913) (state law invalidating maximum liability clause under contract of carriage is preempted by Carmack Amendment), Southeastern Express Co. v. Pastime Amusement Co., 299 U.S. 28, 29, 57 S.Ct. 73, 74, 81 L.Ed. 20 (1936) (breach of contract of carriage action for negligent failure to deliver with due dispatch is governed by the Carmack Amendment), at least two federal circuits have held that a shipper is not barred from asserting other common law claims, e.g., negligence, against a carrier. Litvak Meat Co. v. Baker, 446 F.2d 329, 337 (10th Cir.1971) (although Carmack Amendment preempts common law in claims based exclusively on the holder of a bill of lading, it does not oust all other remedial rights of shippers); see also, Reed v. Aaacon Auto Transport, Inc., 637 F.2d 1302 (10th Cir.1981) (common law rules applicable to computation of damages not preempted by Carmack Amendment); Marquette Cement Mfg. Co. v. Louisville & Nashville Railroad Co., 281 F.Supp. 944 (E.D.Tenn.1967), aff’d., 406 F.2d 731 (6th Cir.1969) (contract of carriage may create state of affairs in which a general duty arises, breach of which may con-' stitute actionable negligence). However, before a shipper can assert a cause of action sounding in tort, it must identify an extra-contractual duty which the carrier owed to it and breached. “It is only where there is a breach of a general duty, even though it may arise out of a relationship created by contract, that breach of duty may constitute actionable negligence.” Marquette, supra, 281 F.Supp. at 947.

Starmakers asserts that Acme owed it several duties in addition to those owed under the terms of the contract. First, plaintiff claims that carriers owe shippers a duty to deliver goods with reasonable dispatch under federal law. In support of its contention plaintiff cites Turner’s Farms, Inc. v. Maine Central Railroad Co., 486 F.Supp. 694 (D.Me.1980), in which plaintiff therein was allowed to recover for the carrier’s failure to deliver goods in a timely fashion. That action, however, was brought under the Carmack Amendment for breach of a contract/bill of lading which contained a “reasonable dispatch” clause. Thus while there is a duty to delivery promptly in Turner’s Farms, that duty arose directly from the carrier’s express contractual obligations.

Although the Supreme Court has established that a shipper can recover damages for a carrier’s failure to deliver goods with due dispatch in a case where there is no contractual provision requiring timely delivery, New York & Norfolk R.R. v. Peninsula Exchange, 240 U.S. 34, 36 S.Ct. 230, 60 L.Ed. 511 (1916), the right to that remedy is derived from the Carmack Amendment’s mandate that a carrier shall be liable to the holder of a bill of lading for any loss or damage to property shipped thereunder. New York & Norfolk, supra, at 38, 36 S.Ct. at 231. Thus, even an implied duty to deliver in a timely manner is a contractual obligation.

Second, Starmakers claims that Acme owes it independent duties under two provisions of the New York Uniform Commercial Code: § 7-302, which imposes liability on the issuer of a through bill of lading for breach of a connecting carrier; and § 7-309, dealing with the duty of care owed by a carrier who issues a bill of lading. 62V2 N.Y.Unif.Com.Code §§ 7-302, 7-309 (McKinney’s 1964). Starmakers’ reliance on these provisions is misplaced. Both the practice commentary following § 7-302, and the official comment following § 7-309, state that the Carmack Amendment governs interstate shipments. Indeed, in light of the body of case law on Carmack’s preemption of state law governing contracts of interstate carriage, i.e., Adams Express, supra, it is safe to assume that the New York provisions govern only intrastate shipments. Hence, they do not provide plaintiff as an interstate shipper with a cause of action independent of the breach of a contractual duty.

Finally, Starmakers contends that Acme is under a separate duty as a bailee for hire. This assertion is without merit. While it is true that a carrier may be thought of as a bailee, 14 Am.Jur.2d Carriers § 508 (1964), a bailor can only recover from its bailee in tort if his cause of action is one that is not necessarily dependent on the existence of the contract. 8 Am.Jur.2d, Bailments § 297 (1980). In the instant case, the only duty allegedly breached was the duty to deliver goods under the bill of lading contract.

Since Starmakers has identified no extra-contractual duty owed to it by Acme, the breach of which could constitute actionable negligence, plaintiff’s sole recourse for failure to deliver the goods with due dispatch is a claim for breach of contract under the Carmack Amendment. Marquette, supra, 281 F.Supp. at 947.

C. Special Damages

Special damages have been defined as “those that the carrier did not have reason to foresee as ordinary, natural consequences of a breach when the contract was made.” Contempo Metal Furniture Co. v. East Texas Motor Freight Lines, Inc., 661 F.2d 761, 765 (9th Cir. 1981). The measure of ordinary compensatory damages when a carrier fails to deliver a shipment to its destination within a reasonable time is the difference between the market value of goods at the time of delivery, and the time when they should have been delivered. Great Atlantic & Pacific Tea Co. v. Atchison, Topeka & Santa Fe Railway Co., 333 F.2d 705 (7th Cir.1964); 11 Williston, On Contracts § 1344 (3d ed. 1968). Hence, Starmakers’ claim for lost business from its customer is properly defined as special damages.

Special damages are not recoverable unless the party in breach had reason to foresee at the time the contract was made that that particular loss would be a probable result of the breach. Restatement (Second) of Contracts § 351. This is the common law rule of Hadley v. Baxendale, 9 Ex. 341, 156 Eng.Rep. 145 (1854), and it has been rigorously applied by American courts in Carmack Amendment actions up to the present day. Contempo Metal Furniture, supra, 661 F.2d 761, 765 (9th Cir.1981) (“To recover special damages plaintiff must show that the carrier had notice of the special circumstances from which such damages would flow.”); Reed v. Aaacon Auto Transport, 637 F.2d 1302, 1306 (10th Cir.1981) (special damages are recoverable when carrier has notice or knowledge of the special circumstances from which such damages would flow); Hector Martinez & Co. v. Southern Pacific Transportation Co., 606 F.2d 106, 110 (5th Cir.1979) (shipper must demonstrate that such harm was not so remote as to make it unforeseeable to a reasonable person at the time of contracting). Thus in the absence of an allegation that Acme had actual notice that a late shipment could cost Starmakers a customer, or could have reasonably foreseen that this loss could occur, Starmakers cannot recover on its third cause of action.

Plaintiffs reliance on Turner’s Farms, supra, is inappropriate. Although the District of Maine held therein that the shipper could recover special damages even though the parties did not contemplate the potential loss at the time of contracting, the carrier in that case was given notice of the specific circumstances three days prior to actual delivery. At that time, the goods had already reached the station of destination. They had only to be delivered to the shipper’s door. It was that three day period of actual notice that gave rise to the claim for special damages. Since the risks of interstate transport had ceased to exist, and since the carrier had received notice of the special circumstances requiring prompt delivery, the court made an exception to the rule that notice of special circumstances at the time of contracting is required for recovery of special damages.

In the case at bar, no notice, either at the time of contracting, or subsequent to the agreement, is averred by Starmakers. Nor does plaintiff’s case appear to fall under the arrival-at-destination exception set forth in Turner’s Farms. The policy underlying the notice requirement is to allow carriers to contemplate the risks involved in shipment, and negotiate contracts of carriage and set rates with those risks in mind. Contempo, supra, at 765. Therefore, unless Starmakers could allege that Acme had notice of special circumstances, or that its case falls under the Turner’s Farms exception, it cannot hold Acme responsible for the special damages Starmakers claims to have suffered.

However, this Court cannot say that, given leave to amend its complaint, Starmakers could not allege facts sufficient to withstand Acme’s motion for judgment on the pleadings. Gumer v. Shearson, Hammill & Co., Inc., 516 F.2d 283 (2d Cir.1974). Since Rule 15 dictates that “leave to amend shall be freely given when justice so demands,” Fed.R.Civ.P. 15(a), plaintiff is granted leave to amend its third cause of action if it can provide the necessary factual allegations of notice consistent with the requirements of F.R.Civ.P. 11. See Eastwap Construction Corp. v. Irving H. Kanarek and Robert Jacobs, 762 F.2d 243, (2d Cir.1985).

Conclusion

Defendant’s motion for judgment on the pleadings dismissing plaintiff’s first and third causes of action is hereby granted, with leave to replead the third cause of action only within twenty (20) days of the date of this order.

The parties are directed to appear for a status conference on July 27, 1985 at 2:00 p.m. in Courtroom 312.

It is SO ORDERED.

      . The Carmack Amendment to the Interstate Commerce Act was originally enacted in 1906 as 49 U.S.C. § 20(11). It was recodified by Congress in 1978, Interstate Commerce Act, Pub.L. No. 95-473, without substantive change as 49 U.S.C. § 11707. H.Rep. No. 1395, 95th Cong., Sess. 1 (1978), U.S.Code Cong. & Admin.News 1978, p. 3009, and amended for clarification but without substantive change, in 1980. Interstate Commerce Act, Pub.L. No. 96-258. H.Rep. No. 332, 96th Cong., 2d Sess. 1 (1980), U.S.Code Cong. & Admin.News 1980, p. 1224. Plaintiff’s suggestion, without citing authority, that Congress intended to treat freight forwarders differently from railroad carriers is without merit. The Carmack Amendment in its present form specifically lists freight forwarders as fully within its jurisdiction. Although 49 U.S.C. § 20(11) did not specifically name freight forwarders as subject to liability under it, it did list "transportation companies” who receive "property for transportation” interstate as governed by it. The Interstate Commerce Act in its old form defined transportation as "... all instrumentalities and facilities of shipment or carriage____” It is safe to assume, therefore, that companies such as Acme are, and always have been, subject to the same liability under the Carmack Amendment as railroads.


source: Caselaw Access Project

author: SHADUR, District Judge.

license: Public Domain

text:
    PATTERN MAKERS’ PENSION TRUST FUND, Plaintiff, v. BADGER PATTERN WORKS, INC., Defendant.
    No. 84 C 182.
    United States District Court, N.D. Illinois, E.D.
    July 22, 1985.

      Jac Cotiguala, John Toomey, Arnold & Kadjan, Chicago, Ill., for plaintiff.
    Gary A. Marsack, Larry R. Jakubowski, Lindner & Marsack, S.C., Milwaukee, Wis., for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Pattern Makers’ Pension Trust Fund (“Trust”) has sued Badger Pattern Works, Inc. (“Badger”) under Employee Retirement Income Security Act' (“ERISA”) § 502, 29 U.S.C. § 1132, and National Labor Relations Act as amended (“NLRA”) § 301, 29 U.S.C. § 185, to recover pension fund contributions Badger allegedly owes Trust. Now Trust has filed a Fed.R.Civ.P. (“Rule”) 56 motion for partial summary judgment, and Badger has responded with a motion for summary judgment as to the entire Complaint. For the reasons stated in this memorandum opinion and order, both motions are granted in part and denied in part.

Background

Badger is a manufacturer of wood, metal and plastic patterns used by foundries. For many years it has employed workers represented by the Pattern Makers’ League of North America, Pattern Makers’ Association of Milwaukee and Vicinity (“Union”). Under the terms of its 1980-83 collective bargaining agreement with Union (the “CBA”), Badger was obligated to make contributions to Trust’s pension fund (the “Fund”), calculated on the basis of all hours worked by Badger employees at tasks historically performed by pattern makers. CBA 1120.2 specified the hourly contribution rate and CBA ¶ 20.4 incorporated the terms of the Agreement and Declaration of Trust (the “Declaration”) creating Trust.

Declaration Art. VI, § 1 sets out the basis for contributions to the Fund:

In order to effectuate the purposes hereof, each Employer shall contribute to the Fund the amount required by any written agreement as defined herein between the Union or the Trust and the Employer. The rate of contribution shall at all times be governed by the applicable written Agreement then in force and effect, together with any amendments, supplements or modifications thereto provided, however, that in the case of an Employer who is required to make contributions by reason of his being party to a written agreement other than a Collective Bargaining Agreement the amount of contribution shall be identical to the amount required by the Collective Bargaining Agreement in effect between the Employer Association and the Local Union having jurisdiction over the geographic area in which the covered Employees perform work. If no Employer Association exists within the geographical area then the rate of contribution shall be at the highest negotiated rate between the Union and the Employer existing in the geographical area within the jurisdiction of the Local Union, unless otherwise determined by the Trustees.

Declaration Art. I, § 1 defines “Employer” in part as one who:

(e) in writing adopts and agrees to be bound by the terms and provisions of this [Declaration] as the same may be amended or modified from time to time; or (d) is a party to any written instrument which evidences an agreement to be bound by the provisions of this [Declaration].

Under Declaration Art. I, § 2(e) the term “Employee” encompasses, in addition to persons covered by a collective bargaining agreement obliging the Employer to make contributions to the Fund:

any person who is not covered by a collective bargaining agreement but on whose behalf his Employer is otherwise obligated to make contributions to the Fund in accordance with the provisions of this [Declaration] who performs work which would be work performed by members of a bargaining unit recognized by the Employer or certified by the National Labor Relations Board if said persons’ Employer were a party to any of the standard collective bargaining agreements by and between the Union and the [Pattern Manufacturers’ Association of Chicago and Vicinity],

Finally Declaration Art. I, § 11 defines the term “written agreement” as:

any agreement in writing which specifies the detailed basis on which contributions shall be made to the Fund together with any modifications, amendments or renewals thereof, including but not limited to collective bargaining agreements, memoranda of understanding which incorporate by reference collective bargaining agreements or this [Declaration], report forms in accordance with which contributions are made and which obligate the Employer to the provisions of this [Declaration], or any other agreement obligating the Employer signatory thereto to participate in or be bound by this [Declaration] and/or the Plan established pursuant hereto.

In each of 1971 and 1974, at the same time Badger entered into new collective bargaining agreements with Union, it also entered into a Contributory Employers’ Agreement (“CEA”) with Trust. In each CEA Badger “agrees to be bound by and to comply with all of the terms and provisions of the [Declaration].” In addition each CEA provides:

Contributions to the Trust by the undersigned, as required by the [Declaration], as amended, at the rates and in accordance with the Collective Bargaining Agreement applicable to the undersigned, as amended, modified, renewed or superseded, from time to time, shall commence as of the date required by said applicable Collective Bargaining Agreement and shall continue for the period therein provided and thereafter until written notice revoking this Agreement is given to the Trust.

With that contractual regime in place, Badger and Union entered into negotiations for an agreement to succeed the CBA, which was due to expire April 30, 1983. At the first bargaining session held February 16, 1983, Badger presented a proposed contract seeking wage and benefit concessions designed to assure Badger’s effective competition in a difficult market (Def.Ex. 2, AA, BB). Similarly focused negotiations between Union and Badger continued into June despite the April 30 expiration of the CBA. Throughout those negotiations Badger proposed contributions to the Fund calculated at an hourly rate of $1.25—the contribution rate Badger had been obligated to pay under the CBA since May 1, 1982—for the duration of the agreement under negotiation.

Following a final bargaining session June 22, Badger President and sole shareholder Richard Blankenheim (“Blankenheim”) sent a June 27 telegram to Union Business Manager Joe Grow (“Grow”) (Def.Ex. F):

Based upon the status of our negotiations and the rejection of our final offer by the membership on June 11, 1983 Badger Pattern is constrained to implement the first year of its final offer____ Badger is constrained to take this action to protect its business interests and to improve its competitive posture within the industry. Implementation will become effective on June 28, 1983.

Next day (June 28) Union struck Badger. On June 29 Union filed charges with the NLRB, alleging Badger had implemented its final offer without having reached an impasse with Union. On August 16 the NLRB’s regional director concluded impasse had been reached before June 27 and declined to pursue Union’s charges. Union remains on strike against Badger.

In the weeks after the strike began, Badger hired permanent strike replacements. In addition a number of strikers crossed the picket line and returned to work. Badger made no contributions to the Fund based on the work done by the replacement workers, but it did continue to make contributions at the $1.25 rate reflecting work done by the returning strikers. Moreover Badger made some but not all contributions due on the work of pattern salesmen, on whose behalf it had historically made Fund contributions.

Contributions ceased altogether December 7, 1983 when Blankenheim wrote Grow that Badger proposed to withdraw, effective immediately, from participation in the Fund. That withdrawal was prompted by Blankenheim’s attendance at a November 30 meeting of Trust’s board of trustees (in his capacity as an employer trustee). Blankenheim had learned at the meeting that Badger might be accruing (1) withdrawal liability on account of the reduction in its contributions following June 28 and (2) liability for work done after June 28 not only by the returning strikers but by all Badger employees.

Blankenheim's December 7 letter also expressed a willingness to negotiate the proposed action in the course of efforts to resolve the split between Badger and Union, provided Union acted on or before December 15 to schedule a meeting. Union did not respond. On January 3,1984 Badger’s attorney wrote to Union referring to the December 7 letter and offering again to schedule a meeting. Such a meeting was held on January 9 but yielded no agreement. On January 17 Blankenheim wrote to Trust board chairman Eric Bergstrom (Pl.Ex. 13):

Effective December 7, 1983 Badger Pattern Works, Inc. has terminated its’ [sic] participating in the Pattern Makers’ Pension Fund.
The fund office is receiving a copy of this letter along with our contributions thru December 7, 1983.
Also, effective December 7, 1983 I have resigned as a trustee of the Pension Fund.

In the meantime Trust had initiated this lawsuit January 11, alleging jurisdiction under NLRA § 301 and ERISA § 502 and seeking (1) recovery of unpaid Fund contributions dating back to June 28, the date the strike began, and (2) equitable relief compelling Badger to make future contributions.

As the parties have framed the issues on the present motions, basically three questions are before this Court:

1. whether this Court has subject matter jurisdiction under either NLRA § 301 or ERISA § 502;
2. whether Badger is liable to Trust for contributions on all work performed between June 28, 1983 and January 20, 1984 by (a) strike replacements, (b) returning strikers and (c) salesmen; and
3. whether Badger remains obligated to make contributions to the Fund because it failed to bargain in good faith before terminating its participation in Trust.

Trust would answer each of those questions in the affirmative. It seeks judgment as a matter of law only as to the first two, noting that the good faith issue raised by the third is not amenable to resolution on a Rule 56 motion. Badger, on the other hand, would answer each question in the negative and seeks judgment as a matter of law on all three. This opinion will deal with each question in turn.

Subject Matter Jurisdiction

NLRA § 301(a) provides:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organization, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

ERISA § 502(e)(1), also a jurisdictional statute, provides:

Except for actions under subsection (a)(1)(B) of this section the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, or fiduciary. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under subsection (a)(1)(B) of this section.

Whether either of those statutes vests this Court with jurisdiction over the present lawsuit turns in the first instance on the source of Badger’s asserted obligation to make contributions to the Fund. Trust contends that obligation arises both from (1) the CBA, whose terms continued in force following the April 30 expiration by virtue of the “status quo” requirement read into NLRA § 8(a)(5) by NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 1111, 8 L.Ed.2d 230 (1962), and (2) the CEA, which obligated Badger to make contributions until January 20, 1984 (when Trust received notice of Badger’s withdrawal). This opinion will consider the jurisdictional question in both contexts.

1. Obligation Arising from the CBA

NLRA § 8(a)(5) provides:

It shall be an unfair labor practice for an employer—-
* * * * * * *
(5) to refuse to bargain collectively with the representatives of his employees ____

Katz, 369 U.S. at 743, 82 S.Ct. at 1111 held the NLRA § 8(a)(5) obligation to bargain collectively was violated by “an employer’s unilateral change in conditions of employment under negotiation.” Accordingly the employer has an obligation to maintain the status quo, even after expiration of the existing collective bargaining agreement, until negotiations have concluded either in a new agreement or impasse.

In the circumstances of this case, then, NLRA § 8(a)(5) and Katz imposed on Badger the continuing duty to make Fund contributions despite the April 30 expiration of the CBA, at least until impasse had been reached. Because any default in that obligation could be attacked by Union via an unfair labor practice charge, Badger invokes the principle of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 780, 3 L.Ed.2d 775 (1959) to say suit will not lie here:

When an activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board____

Trust retorts by urging:

1. Where an unfair labor practice is also a breach of a collective bargaining agreement, NLRA § 301 specifically authorizes enforcement action in a federal district court, thus rendering inapplicable Garmon's “exclusive competence” concept.
2. Trust (as contrasted with Union) would have no standing to bring charges before the NLRB, so Trust’s NLRA § 301(a) suit is necessarily the only available remedy.

This Court need not resolve the parties’ competing contentions. What is dis-positive instead is that Trust’s claim is not really one “for violation of contract.” Because the period in dispute is post -contract, the obligation is one implied in law rather than one created by the contract itself. In short this Court lacks jurisdiction under NLRA § 301 to hear a claim arising from the status quo requirement embodied in NLRA § 8(a)(5). Cement Masons Health and Welfare Trust Fund v. Kirkwood-Bly, Inc., 520 F.Supp. 942, 943-45 (N.D.Cal.1981), aff’d, 692 F.2d 641 (9th Cir. 1982).

Whether the obligation to make pension fund contributions arising from the NLRA § 8(a)(5) status quo requirement falls within this Court’s jurisdiction under ERISA § 502 poses a somewhat more complicated question. Its resolution turns on the construction of ERISA § 515, which renders an employer liable for delinquent contributions:

Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or agreement.

Continued negotiations after a labor contract has expired are a frequently-encountered occurrence. And of course ERISA litigation is a high-volume industry. It might be expected, then, that the question posed here would be often-litigated (and hence likely well-settled). Not so—all the litigants and this Court’s own research have uncovered are two district court opinions on point, and those have come to opposite conclusions. Compare Laborers Health & Welfare Trust Fund v. Hess, 594 F.Supp. 273, 278-82 (N.D.Cal.1984) (holding jurisdiction exists) with Mo-Kan Teamsters Pension Fund v. Botsford Ready Mix Co., 605 F.Supp. 1441, 1444-48 (W.D.Mo.1985) (holding jurisdiction does not exist).

There is no need to rehearse in this opinion the intricate arguments from statutory language and legislative history spun out in Hess and Botsford. Suffice it to say that in this Court’s view Senior Judge Hunter’s analysis in Botsford offers a better-grounded application of the statute in circumstances analogous to those presented here. It would do violence to the statutory phrase “contributions ... under the terms of the plan or ... agreement” to embrace contributions forced by an implied legal obligation after the agreement has expired. And the analogy to ERISA, 29 U.S.C. § 1392(a) suggested in Hess, 594 F.Supp. at 279 really cuts the other way by negative inference. Under the reasoning of Botsford—which requires no substantive elaboration, particularly when considered in the context of Hess —this Court lacks jurisdiction under ERISA §§ 502 and 515 to hear a claim for pension fund contribution arising from the NLRA § 8(a)(5) status quo requirement.

2. Obligation Arising from the CEA

NLRA § 301(a) has been broadly interpreted by the Supreme Court to confer jurisdiction though the actual lawsuit does not involve an employer and an organization representing employees (Smith v. Evening News Association, 371 U.S. 195, 200, 83 S.Ct. 267, 270, 9 L.Ed.2d 246 (1962)) or focuses on a contract other than a collective bargaining agreement—a strike settlement agreement, for example (Retail Clerks v. Lion Dry Goods, Inc., 369 U.S. 17, 28, 82 S.Ct. 541, 548, 7 L.Ed.2d 503 (1962)). By its terms, however, NLRA § 301 does require the contract in suit to be one between an employer and a labor organization representing employees. That statutory requirement has led courts to the conclusion that “standing alone, a welfare and pension plan could hardly qualify as a ‘labor contract’ for purposes of [NLRA § 301].” Caporale v. Di-Com Corp., 345 F.Supp. 153, 154-55 (N.D.Ill. 1972), quoting O’Rourke v. Breakstone Brothers, Inc., 218 F.Supp. 648, 651 (S.D. N.Y.1963). On the other hand, a pension trust agreement can form the basis for jurisdiction under NLRA § 301(a) when it is part and parcel of an effective collective bargaining agreement. See Alvares v. Erickson, 514 F.2d 156, 161 (9th Cir.1975); Rehmar v. Smith, 555 F.2d 1362,1367 (9th Cir.1976).

That authority compels the conclusion this Court lacks jurisdiction under NLRA § 301(a) to decide the merits of a dispute arising from the CEA. As an agreement solely between Trust and Badger, the CEA does not qualify as a “contract between an employer and a labor organization” under NLRA § 301(a). And because Trust sues for contributions arising after the April 30 expiration of the CBA, there is no basis for concluding the CEA gives rise to jurisdiction by virtue of being part and parcel of an NLRA § 301 contract.

But implicit in the preceding analysis characterizing the CEA as an agreement between Trust and Badger is the conclusion this Court does have jurisdiction under ERISA § 502 over the merits of a dispute arising from the CEA. ERISA § 515 renders an employer liable for delinquent contributions it is required to make under the terms of a multiemployer plan or under the terms of a collective bargaining agreement. Once the CBA had expired, Badger had no ERISA § 515 liability under the CEA by virtue of its having been incorporated into the CBA. But by means of the CEA, Badger independently agreed with Trust “to be bound by and to comply with all of the terms and provisions of the [Declaration].” Thus to the extent Badger’s alleged violation of ERISA § 515 arises from the breach of obligations Badger assumed running to Trust under the CEA, this Court has jurisdiction under ER-ISA § 502 to hear the claim.

Badger does not contest that conclusion, but rather argues it had no obligation to contribute to the Fund arising from the CEA and the incorporated terms of the Declaration:

1. It says the CEA was not intended to create contribution liability independent of the CBA, but only to guard the interests of any Badger employees who were not represented by a collective bargaining unit yet on whose behalf Badger made Fund contributions.
2. It also says the CEA is not a validly executed and enforceable contract.

Both arguments earn high marks for imagination but not for credibility.

Badger’s first contention is founded on NLRA § 302(c)(5)(B), which prohibits an employer from making contributions on behalf of employees to a pension trust fund unless (among other requirements):

the detailed basis on which such payments are to be made is specified in a written agreement with the employer____

Badger argues the NLRA § 302(c)(5)(B) requirement is typically satisfied so far as bargained-for employees are concerned by the collective bargaining agreement, while the CEA was designed solely to assure the existence of a detailed written agreement to cover pension contributions made on behalf of any nonbargained-for employees (i.e., employees not subject to a collective bargaining agreement) Badger might have. Badger asserts the CEA should not be read as intended to impose dual liability as to employees covered by the CBA. Indeed Badger Mem. 27-28 maintains:

[Wjhen dealing with an employer with bargained-for employees, § 302(c)(5)(B) requires that the written agreement consist of a collective bargaining agreement. An employer whose employees are represented has an obligation under § 8(a)(5) of the NLRA to bargain with the employee representative over pension fund contributions. ERISA explicitly provides that it does not alter, amend, modify, invalidate, impair, or supersede any law of the United States. 29 U.S.C. § 1144(d). As a result, a collective bargaining agreement is required in this situation.

That analysis, both as to the intended purpose of the CEA and as to the necessity of a collective bargaining agreement to satisfy NLRA § 302(c)(5)(B) where bargained-for employees are concerned, is novel. In the end, however, it is wholly unpersuasive.

First, as Badger acknowledges, there is no real support in the case law for the proposition that a collective bargaining agreement alone will suffice to satisfy NLRA § 302(c)(5)(B) as to bargained-for employees. Nor does the NLRA § 8(a)(5) collective bargaining requirement foreclose contribution liability arising from an agreement other than a collective bargaining agreement in circumstances where the contribution obligation arose in the first instance from a collective bargaining agreement. Indeed this case illustrates graphically the desirability of such a supplemental agreement. After the expiration of the CBA Badger remained obligated to continue making Fund contributions under the NLRA § 8(a)(5) status quo requirement, a neglect of which Union could make the subject of an unfair labor practice charge before the NLRB. But as the jurisdictional discussion in this opinion suggests, Trust would have no direct action against Badger in the event contributions were suspended during the collective bargaining period—a circumstance that could seriously impair its ability to fulfill its duties as a fiduciary. Thus the CEA plays an important role: It provides Trust with a direct action against Badger in that eventuality (and no doubt others), imposing on Badger the insignificant burden of providing written notice of any revocation of its contribution obligation. Hence the CEA serves a purpose independent of the CBA, without infringing the collective bargaining obligation embodied in NLRA § 8(a)(5).

As for Badger’s claim the CEA was intended to cover only non-bargained-for employees, little need be said. That argument, spun out fancifully from cases like Moglia (see n. 3), is not supported by the language of the CEA, and Badger has made no effort to support its proposition by producing extrinsic evidence (even were it admissible under the parol evidence rule) of the parties’ intent. Under the circumstances this Court must look to the CEA itself, which in literal and unequivocal language covers Badger’s entire contribution obligation, not simply that portion allocable to non-bárgained-for employees.

Badger’s second argument— that the CEA is not a validly executed contract—focuses on the technicality that neither the 1971 nor the 1974 CEA was executed by Trust. But in fact the 1971 CEA was countersigned on behalf of Trust (Pl.Ex. 46). Even on the questionable assumption the lack of a countersignature on the 1974 CEA rendered it unenforceable, the 1971 document by its terms remained in effect until Trust received written notice of its revocation. Badger also asserts the CEA was without consideration on Trust’s part because Trust promised to do no more than it was already obligated to do under the Declaration and the various collective bargaining agreements incorporating the Declaration. But of course by means of the CEA, Trust promised to accept contributions on behalf of all Badger employees, even in the absence of a collective bargaining agreement. Thus the CEA broadened the scope of Trust’s obligation, and that broadening suffices as consideration for Badger’s promise.

In sum, the CEA (whether the 1971 or the 1974 version) is indeed an enforceable contract. This Court has jurisdiction under ERISA § 502 to consider whether Badger is in breach of that contract and therefore of ERISA § 515.

Badger’s Contribution Liability: June 28, 1983 to January 20, 1984

In light of this Court’s jurisdictional findings, its decision on the merits must turn on an analysis of Badger’s obligations under the terms of the CEA and the Declaration. Four aspects of Badger’s alleged contribution liability are in issue:

1. liability as to returning strikers;
2. liability as to strike replacements;
3. liability as to salesmen; and
4. the date on which Badger’s contribution liability terminated.

As to the returning strikers, the only matter in dispute is Badger’s liability for the period between December 7, 1983 and January 20, 1984. Both Badger and Trust acknowledge contributions were made on behalf of returning strikers from the day they returned until December 7. Badger, however, contends its liability ended when Blankenheim wrote to Grow proposing to terminate Badger’s participation in Trust and introducing the possibility of establishing a private pension program for Badger employees.

That proposition is not supportable. In the first place the returning strikers remained “employees” within the terms of the Declaration under Art. I, § 2(e) (quoted early in the text of this opinion). Even if they were no longer covered by an effective collective bargaining agreement, they were at least performing pattern makers’ work—the test specified in Declaration Art. I, § 2(e). As for the asserted December 7 termination date, the CEA by its express terms provides it shall remain in effect pending written notice to Trust of Badger’s revocation. Badger did not mail such a notice until January 17,1984, and Trust did not receive the notice until January 20. Consequently the CEA was not effectively revoked until January 20, leaving Badger liable until that date for contributions on work performed by returning strikers.

Precisely the same analysis applies to the strike replacements. As workers employed to replace striking pattern makers, they were by definition doing work within the terms of Declaration Art. I, § 2(e). They were therefore “employees” within the terms of the Declaration. It follows that so long as Badger was obligated to make Fund contributions according to the terms of the Declaration, it was required to make contributions on behalf of strike replacements. Because the CEA was not effectively revoked until January 20, thereby terminating Badger’s participation in Trust (see Declaration Art. XI, Section 1), Badger is obligated to make contributions on work performed by strike replacements from the date those replacements were hired to January 20.

Salesmen stand in a more problematic status. Trust represents that Badger persuaded several Union pattern makers to become Badger salesmen, but then continued to make Fund contributions on their behalf. In 1980 Trust discussed the status of those employees with Badger, and it was decided the salesmen would be deemed part of the collective bargaining unit for pension plan purposes. Badger continued to make Fund contributions based upon their work up to the strike in 1983, but it has made no such contributions since.

Badger has not contested that account of events, but Trust has offered no evidence competent in Rule 56(e) terms to support its story. As a result this Court is not in a position to decide the merits of Trust’s claim as to the salesmen on the present motion. Nevertheless if Trust’s summary of events is true, it would appear the salesmen are likely to be employees under Declaration Art. I, § 2(c), which includes in the “employee” definition:

any person on whose behalf an Employer has made contributions to the Fund and has reported same on a standard report form which contains a provision binding said Employer to the provisions of this [Declaration] or otherwise evidencing said Employer’s intent to be so bound____

But again Trust has provided this Court with no evidence adequate to support a judgment as to the salesmen. To that extent, accordingly, Trust’s motion must be denied.

One final matter not explicitly addressed by the parties requires mention: the rate at which Badger was obligated to make contributions between June 28, 1983 and January 20, 1984. Under the CEA Badger was to make contributions to the Fund “at the rates and in accordance with the Collective Bargaining Agreement applicable to the undersigned.” As of April 30, 1983 the CBA had expired, leaving unspecified the applicable contribution rate and terminating Badger’s obligation under the CBA to make Fund contributions. But Declaration Art. VI, § 1 fills any gap by specifying an Employer required to make contributions under a written agreement other than a collective bargaining agreement shall make such contributions at the rate “required by the Collective Bargaining Agreement in effect between the Employer Association and the Local Union having jurisdiction over the geographic area in which the covered Employees perform work.” That rate would appear to be $1.25 per hour for the entire relevant period, though a final determination on that score must await further proof.

Badger’s Continuing Liability

Trust finally urges Badger’s contribution liability continues to accrue to date, despite the January 20, 1984 notice revoking the CEA, because Badger failed to negotiate in good faith the termination of its participation in Trust. But as Badger asserts:

The circumstances surrounding the termination or the employer’s reasons are not of concern to the trust. Instead the union representing those employees is the interested party to questions concerning an employer’s good or bad faith bargaining.

That statement is beyond challenge, particularly in light of this Court’s lack of jurisdiction under either NLRA § 301(a) or ERISA § 502 to consider claims involving Badger’s alleged failure to meet its obligations under NLRA § 8(a)(5). Trust points to no language either in the CEA or the Declaration empowering it to challenge Badger’s negotiations with Union. Accordingly Badger’s motion for summary judgment must be granted as to Trust’s claim of continuing contribution liability.

Conclusion

This Court has jurisdiction under ERISA § 502 to determine Badger’s liability for Fund contributions under the CEA and the Declaration. There is no genuine issue of material fact, and Trust is entitled to a judgment as a matter of law, as to Badger’s liability for contributions on behalf of returning strikers and strike replacements for the period June 28, 1983 to January 20, 1984. On the present showing this Court is unable to determine definitively whether Badger is also liable (as appears likely) for contributions on behalf of salesmen during that period. Badger’s Rule 56 motion as to all those issues is of course denied. Finally there is no genuine issue of material fact, and Badger is entitled to a judgment as a matter of law, as to its non-liability to Trust for any contributions calculated on work done after January 20, 1984.

      . Rule 56 imposes on the party moving for summary judgment the burden of establishing the lack of a genuine issue of material fact. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984). For that purpose the court must, in viewing the evidence, draw all reasonable inferences in the light most favorable to the nonmovant. Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.1984). Where cross-motions have been filed, such inferences sometimes require a double factual perspective. In this case, though, there is no substantial dispute between the parties as to the facts, most of which are documentary. Accordingly the following recital reflects an undisputed view of the factual matrix for the current motions.

      . ERISA § 515 states the substantive rule Trust claims Badger violated, so as to give rise to jurisdiction under ERISA § 502.

      . Badger claims the CEA was intended to prevent the problem that arose in Moglia v. Geoghegan, 403 F.2d 110, 114-19 (2d Cir.1968), which found contributions made on behalf of non-represented employees to be invalid for lack of an NLRA § 302(c)(5)(B) written agreement.

      . It bears emphasizing the starting date for Badger’s obligation to make contributions under the CEA was coterminous with its obligation under the CBA. That fact confirms the supplemental character of the CEA. It plainly was not the primary source of Badger’s obligation to make Fund contributions on behalf of Union employees.

      . Badger ascribes as evidence to support its claim the fact that Trust submitted CEAs to Badger in 1971 and again in 1974, but has not done so since then. Badger attributes that to Trust’s having recognized that such supplemental agreements had no purpose with respect to Badger, an employer with no non-bargained-for employees. But the more plausible inference (and the one favoring the nonmovant, see n. 1) is that Trust submitted no more CEAs for execution because there was no need to re-execute an agreement that by its terms did not terminate until Badger provided Trust with notice of revocation.

      . Neither party has seen fit to comply with this District Court's General Rule 12(e) and 12(f), designed to avoid just such gaps in summary judgment motions by distinguishing between factual areas in dispute and those that are uncontested. Badger’s memorandum challenges the coverage of strike replacements but not salesmen (except of course for the broadside attacks on liability as a whole), so it seems likely Trust’s factual characterization is undisputed. Judgments, however, cannot rest on mere likelihood.

      . Such denial is necessarily without prejudice to Trust’s providing admissible evidence and renewing its motion. Indeed if the facts are not in dispute the parties might serve litigants’ and judicial economy by tendering a stipulation on the subject.


author: MYRON H. THOMPSON, District Judge.

text:
    Robert D. EDWARDS, Plaintiff, v. DEPARTMENT OF CORRECTIONS, et al., Defendants.
    Civ. A. No. 84-T-975-N.
    United States District Court, M.D. Alabama, N.D.
    July 25, 1985.

      Julian McPhillips, McPhillips & DeBardelaben, Montgomery, Ala., for plaintiff.
    Harry A. Lyles, Bobby N. Bright, Asst. Atty. Gen., Asst. Gen. Counsel, Dept. of Corrections, Montgomery, Ala., for defendants.
   MEMORANDUM OPINION

MYRON H. THOMPSON, District Judge.

Plaintiff Robert D. Edwards has brought this lawsuit charging that defendants Department of Corrections of the State of Alabama and various officials of the Department refused to promote him to a position in the state prison for women because he is a male. Based on the evidence presented at a nonjury trial, the court concludes that Edwards has been a victim of illegal sex discrimination and is entitled to appropriate relief.

I.

The facts in this case are simple and straight-forward. Between September 1982 and April 1983 and again between June and August 1983, the Department of Corrections appointed Edwards acting shift commander at Julia Tutwiler Prison for Women, Alabama’s principal prison for women, with inmates from minimum to maximum security designations, located in Elmore County, Alabama. Although the position carries the rank of correctional officer supervisor I, the Department continued Edwards in his lower rank of correctional officer II.

In the summer of 1983, two shift commander positions became available at Tutwiler, including the one Edwards held on an acting basis. Edwards asked the Tutwiler warden to consider promoting him to one of the positions. The warden told Edwards that he could not be promoted because departmental policy restricted the positions to women. By a memo dated July 27, 1983, Edwards was reassigned from acting shift commander to supervisor of transfer agents “as per orders of [the Department’s Regional Coordinator for Central Alabama] that no males would serve in the capacity of shift supervisor____”

However, only one of the two shift commander positions was immediately filled because only one qualified woman applied. The second position was not filled with a woman until the winter of 1983.

Edwards filed a timely charge with the United States Equal Employment Opportunity Commission; and, after receiving a notice of right-to-sue from the Commission, he timely filed this lawsuit charging that in the summer of 1983 he was denied a shift commander position because of his sex, in violation of federal law.

II.

Edwards rests his claim of sex discrimination on Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-17. He charges the Department with intentional “disparate treatment” based on sex, in violation of the Act.

A plaintiff may establish a claim of impermissible intentional disparate treatment under Title VII by either circumstantial or direct evidence. If the evidence is circumstantial, a trial court should consider the claim generally in the manner outlined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the evidence is direct, however, the trial court should approach the evidence generally in the manner outlined in such cases as Thompkins v. Morris Brown College, 752 F.2d 558 (11th Cir.1985) and Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th Cir.1984). Here, there is direct evidence of intentional sex discrimination. The Department had a clearly established policy of appointing only women as shift commanders at Tutwiler, and Edwards was specifically told that because of the policy he could not be promoted to such position. The court will therefore consider the evidence according to such cases as Thompkins and Hayes.

Where, as here, there is direct evidence that an employer has intentionally denied an employee a position because of the employee’s sex, an employer may still prevail by establishing either of the following affirmative defenses: that the adverse personnel decision would have been reached even in the absence of the discriminatory motive, Thompkins, 752 F.2d at 563, or that a person’s sex is a bona fide occupational qualification for the position sought. Hayes, 726 F.2d at 1547. The Department asserts both defenses, and the court now considers each in turn.

III.

The Department asserts that, even in the absence of its discriminatory policy, Edwards would not have been promoted to shift commander in the summer of 1983. That summer, the Department filled one of the shift commander positions through the process of selective certification from the “promotion” register, which ranks currently employed persons according to their ability and qualifications. Under this process, when a department seeks to fill an opening from within, the state personnel office certifies from the promotion register the names of the top three persons, from whom the Department chooses one—and if there are two positions available, the personnel office certifies four names; if three positions, five names; and so forth. The process is considered selective when the certification is restricted to persons having certain characteristics or belonging to certain groups. Here, the certification was selective because it was limited to women.

In the winter of 1983, the Department filled the other shift commander position with a woman from the personnel office’s reemployment register. When using this register, the Department is not limited to the top candidates and may choose any person from the register. The Department has the prerogative whether to use the promotion or reemployment register. However, promotions are usually made by use of the promotion register.

The Department contends that, had it not used selective certification in the summer of 1983, Edwards would have ranked only fourth on the promotion register and thus would not have been among the top three certified for promotion by the state personnel office. This contention is meritless because it overlooks certain important facts. There were two, not one, shift commander positions available that summer. Without selective certification, the personnel office would have certified four names, including Edwards’s, to fill the two positions. Furthermore, in light of Edwards’s exemplary record and immediate experience as acting shift commander, this court is firmly convinced that, without the Department’s discriminatory policy, he would have been selected to fill one of the positions. In the absence of the discriminatory policy, Edwards would therefore have been promoted to shift commander in the summer of 1983, with accompanying promotion to the rank of correctional officer supervisor I.

The Department has questioned whether it should bear the affirmative defense of establishing that, in the absence of its discriminatory policy, Edwards would not have been promoted. The Department contends that the issue of Edwards’s position on the promotion register goes to his eligibility for the position and that Edwards should have the responsibility of establishing his eligibility as a part of his initial burden of proof. In the circumstances of this case, this contention is meritless.

At the time the Department denied Edwards the promotion, the sole reason stated and relied on by the Department was discriminatory. The evidence reflects that the issue of Edwards’s position on the promotion register did not surface until after Edwards initiated legal proceedings challenging the Department’s action. Thus, the evidence here reflects the following scenario: the employer admits acting for a discriminatory reason at the time of the adverse personnel action, but argues that had it not so acted for that reason the employee would still not have been promoted. Under these circumstances, the employer should bear the burden of establishing what it would have done absent the admittedly discriminatory reason. See Hardin, 691 F.2d at 1369 n. 16.

The circumstances here are quite different from those where an employer maintains from the outset that the adverse personnel action was based on admittedly nondiscriminatory requirements and procedures. In such cases, it could be argued that the employee has the responsibility of establishing eligibility as a part of his burden of establishing direct evidence of discrimination; or it could be argued that such cases are best considered within the Bur-dine and McDonnell Douglas framework. These are issues this court need not reach in this case.

Nevertheless, to ensure a full factual record and complete fairness to the Department, this court would add that if Edwards had the burden of establishing that he would have been selected and promoted from the promotion register, he has fully carried that burden.

IV.

The Department asserts next that femaleness is a bona fide occupational qualification (bfoq) for shift commander at Tutwiler. The bfoq defense “is available only when the employer can show that the excluded class is unable to perform the duties that constitute the essence of the job, duties that Title VII defines as ‘necessary to the normal operation of the particular business or enterprise.’ 42 U.S.C.A. § 2000e-2(c).” Hayes, 726 F.2d at 1549. The court must therefore determine whether male employees like Edwards are unable to perform the duties essential to the normal operation of the job.

A.

Courts have several times previously had to consider whether employment in prisons may be restricted by sex. In Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), the U.S. Supreme Court considered whether maleness was a bfoq for correctional officer positions in Alabama’s prisons for male inmates. The Court said that “the bfoq exception was in fact meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex.” 433 U.S. at 334, 97 S.Ct. at 2729. In finding that the positions in question met this narrow exception, the Court took note of “peculiar” conditions in Alabama’s prisons of “rampant violence” and a “jungle atmosphere.” 433 U.S. at 334, 97 S.Ct. at 2729. Where inmates were not segregated according to their offenses or levels of dangerousness, the Court found that “[tjhere is a basis in fact for expecting that sex offenders who have criminally assaulted women in the past would be moved to do so again if access to women were established within the prison.” 433 U.S. at 335, 97 S.Ct. at 2730.

Courts since Dothard have said that this case dealt with “uniquely dangerous conditions.” Smith v. Fairman, 678 F.2d 52, 54 (7th Cir.1982). In Hardin v. Stynchcomb, 691 F.2d 1364 (11th Cir.1982), the Eleventh Circuit considered whether maleness was a bfoq for the position of deputy sheriff in a county jail. The evidence reflected that most positions in the jail did not involve contact with inmates. Male deputies “booked” female inmates, but called on female deputies to search them. In emergencies, all deputies were expected to search all inmates. 691 F.2d at 1368.

The court in Hardin emphasized that “[sjex based discrimination is valid only if the essence of the business would be undermined by not hiring members of one sex exclusively.” 691 F.2d at 1370. “In addition, defendants bear the burden of proving that because of the nature of the operation of the business they could not rearrange job responsibilities in a way that would eliminate the clash between the privacy interests of the inmates and the employment opportunities of female deputy sheriffs.” 691 F.2d at 1370-71. The court rejected the bfoq defense. 691 F.2d at 1372.

Recently, in Garrett v. Okaloosa County, 734 F.2d 621 (11th Cir.1984), the Eleventh Circuit again considered circumstances quite similar to those in Hardin. Female employees at a county jail sought positions as guards which the county restricted to male employees. 734 F.2d at 622-23. The county raised a bfoq defense and relied on a state regulation requiring a guard of an inmate’s sex to be present when a guard of the opposite sex entered the area where the inmate was confined. 734 F.2d at 623-24. The court rejected the defense, stating that “the mere fact that a state enacts a discriminatory regulation does not create a BFOQ defense for one who follows such a regulation.” 734 F.2d at 624. Furthermore, the evidence reflected that female employees in other county jails subject to the same regulation had served as guards despite the regulation. “For an occupational qualification to be ‘bona fide,’ it must be just as valid and necessary one day as it is the next.” 734 F.2d at 624.

B.

What stands out most about the Department’s contention here that femaleness is a bfoq for the position of shift commander at Tutwiler is that Edwards held this position for nearly a year without any apparent difficulty. Though he held the position on an acting basis, he held it for a considerable period of time and performed all the duties that it required. Only when Edwards sought the position on a permanent basis was he transferred, and the Department did not justify his transfer with any alleged shortcomings on Edwards’s part, but rather referred to its policy restricting shift commander positions to female employees. In light of this fact and others to be described, the Department has failed to prove that femaleness is a bfoq for the position of shift commander at Tutwiler.

The evidence is that shift commanders at Tutwiler work under the supervision of the warden, deputy warden and captain and are in charge of between eight and twelve correctional officers on a shift. Their principal duty is to supervise these officers who are stationed throughout the prison. This involves patroling the prison to monitor the officers and occasionally relieving them temporarily while they take breaks. The officers themselves patrol various areas of the prison including sleeping quarters and bathrooms. They inspect and sometimes physically search inmates on a regular basis and on occasions where circumstances such as suspicion of wrongdoing require. Shift commanders may also be called on to search inmates in these circumstances, as well as patrol sleeping quarters and bathrooms when relieving officers. Shift commanders also have administrative duties such as preparing officers’ schedules.

The evidence is that Edwards efficiently and satisfactorily performed the duties of shift commander at Tutwiler while serving on an acting basis. The warden herself testified that Edwards’s sex was not an obstacle to his fulfilling these duties. According to the evidence, Edwards rarely if ever had to search female inmates while serving as acting shift commander. Apparently, he was able to summon a female officer to perform this task. In fact, in his present position as supervisor of transfer agents, Edwards monitors the transportation of female inmates without assistance from other officers and thus is now more likely to have to search a female inmate than when he served as acting shift commander.

The evidence also shows that another male officer served as acting shift commander at Tutwiler. He too did not have to perform searches of female inmates. Other male employees also work at Tutwiler as officers and usually are stationed in posts that do not require frequent contact with female inmates.

All Tutwiler employees agreed that in an emergency it would be appropriate for a male officer to search or subdue a female inmate. Nevertheless, the evidence is that such emergencies are quite rare. Conditions at Tutwiler are generally peaceful and orderly. There is no “rampant violence” or “jungle atmosphere.” 433 U.S. at 334, 97 S.Ct. at 2729.

To support its bfoq defense, the Department relied on two of its regulations. Regulation 204, successor to the regulation considered in Dothard, prohibits employees from conducting “strip searches,” “frisk or pat searches” or “patrol of toilet and shower areas, while in use” at prisons housing inmates of the opposite sex. Regulation 211 provides standards and procedures for filling vacant positions by selective certification, as previously described. According to the regulation, the position must meet certain criteria, including involving: frequent patroling of dormitories, restrooms or showers; regular searches of inmates; contact with inmates without the presence of others; and the risk of disruption of the security and orderly running of the institution. Only then may the warden fill the position by selective certification.

The court need not and does not consider the general validity of Regulations 204 and 211 under Title VII. First, as already stated, the mere enactment and existence of a discriminatory regulation does not create a bfoq defense. Garrett ¶. Okaloosa County, 734 F.2d at 624. Thus, the mere existence of the regulations is beside the point.

Second, as in Garrett, the Department here has failed to show even that the regulations require denying Edwards promotion to shift commander. 734 F.2d at 624. Regarding Regulation 204’s prohibition of officers’ searching inmates of the opposite sex and their toilet and shower areas, the evidence reflects that shift commanders need not conduct such searches. Edwards and another male officer serving as acting shift commanders were able to perform their duties while calling on female officers for such searches. Thus, performing such searches does not “constitute the essence of the job” as a bona fide occupational qualification must. Hayes, 726 F.2d at 1549. The Department has failed to prove that the nature of the prison’s operation precludes rearranging job responsibilities in a way that would eliminate the clash between the privacy interests of inmates and the employment opportunities of officers as shift commanders. Hardin, 691 F.2d at 1371. For these reasons as well, the Department has not shown that Regulation 211 calls for selective certification to fill the position of shift commander. According to the evidence, a shift commander can perform his or her duties without frequent patroling of dormitories, restrooms or showers or regular searches of or contact with inmates. Furthermore, the evidence is that Tutwiler is an orderly, peaceful institution despite the presence of officers of the opposite sex as the inmates.

V.

The remaining issue for the court is appropriate relief for Edwards. Victorious Title VII plaintiffs are presumptively entitled to backpay and reinstatement. Nord v. United States Steel Corporation, 758 F.2d 1462, 1472-73 (11th Cir.1985). The court will require that the Department pay Edwards backpay determined according to established legal principles. See 758 F.2d at 1469-71. The parties will be given an opportunity to attempt to agree on an appropriate amount of backpay.

However, where reinstatement of a victim of discrimination would necessarily displace an employee not implicated in illegal conduct, reinstatement may not immediately be appropriate. See Parker v. Wallace, 596 F.Supp. 739, 746 (M.D.Ala. 1984). Here, the evidence is that there are a limited number of shift commander positions at Tutwiler. If one of these positions is currently available, the Department must immediately fill it with Edwards. If a position is not currently available, the Department must fill the next available position with Edwards. In the meantime, Edwards should hold the rank of correctional officer supervisor I, and the Department must remunerate Edwards and award him other benefits as though he held the shift commander position.

Finally, the court will award Edwards a reasonable attorney fee pursuant to 42 U.S. C.A. §§ 2000e-5(k), determined according to the standards set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). See also Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The parties will be given an opportunity to attempt to agree on a reasonable fee.

An appropriate judgment will be entered.

      . Edwards has dismissed his claims under 42 U.S.C.A. §§ 1983 and 1985, leaving only his claim under 42 U.S.C.A. §§ 2000e to 2000e-17. Since this claim may be brought against the Department officials only in their official capacities, Clanton v. Orleans Parish School Board, 649 F.2d 1084, 1099 n. 19 (5th Cir.1981) (Unit A), the court considers the Department and its officials as one entity and refers to them as the Department throughout this opinion.

      . Generally, there are two types of cases under Title VII, "disparate treatment” cases and "disparate impact" cases. In the former, the plaintiff must prove intentional discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). In the latter, the plaintiff challenges "practices that are fair in form, but discriminatory in operation,” Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971); the plaintiff need not prove intentional discrimination. International Brotherhood of Teamsters v. United States, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15. See e.g., York v. Alabama State Board of Education, 581 F.Supp. 779, 784-86 (M.D.Ala. 1983). The plaintiff must demonstrate that the practice or policy "has disproportionate impact on a group protected from discrimination under Title VII____ An affirmative defense to a prima facie case of disparate impact is ‘business necessity' .... ” Hayes v. Shelby Memorial Hospital, 726 F.2d 1543, 1547 (11th Cir.1984).

      . To prove intentional discriminatory treatment by use of circumstantial evidence, the plaintiff must establish a prima facie case of discrimination. A prima facie case of discrimination raises the presumption that discriminatory intent motivated the adverse personnel action. The employer may rebut the presumption by articulating a legitimate, nondiscriminatory reason for the action, a reason that is clear and reasonably specific and worthy of credence. The plaintiff must then show that the proffered reason was a pretext for the true discriminatory reason. Burdine, supra; McDonnell Douglas Corporation, supra.

      . Since the policy challenged here is facially discriminatory, the court agrees with the parties that this lawsuit should be treated as a disparate treatment rather than a disparate impact case. See note 2, supra; Hayes, 726 F.2d at 1548-52; Hardin v. Stynchcomb, 691 F.2d 1364 (11th Cir. 1982).
      Nevertheless, the result would be the same if the court were to treat this case under the disparate impact theory. Edwards has shown disparate impact, and, for the reasons stated in part IV of this memorandum opinion, the Department has not shown business necessity, even though it is a “broader defense” than bona fide occupational qualification, Hayes, 726 F.2d at 1547. See, e.g., Hardin, 691 F.2d at 1372 n. 22.

      . For example, in Hayes the appellate court faced a challenge to a hospital’s admitted action of having discharged the plaintiff because she was pregnant. The court observed that
      This might be a Burdine type case if, for example, the Hospital had dismissed Hayes claiming she was "inefficient,” but Hayes had asserted that the real reason for her dismissal was her pregnancy. The court would then be required to determine if the Hospital’s stated reason for firing Hayes was a pretext for getting rid of a pregnant employee.
      726 F.2d at 1548 n. 6. See note 3, supra.

      . The two regulations purport to serve the interests of inmates in privacy and of officers in safety. Under other circumstances, the court would have to consider whether or how the Department may or must meet these interests. See, e.g., Bagley v. Watson, 579 F.Supp. 1099, 1105 (D.Ore.1983) (male inmates' preference to have male officers perform searches rests on no constitutional right and does not establish bona fide occupational qualification). Here, however, the court need not do so, since the regulations themselves do not require what the Department claims, and their justification is thus irrelevant.