485 F.2d 441 (5th Cir. 1973), 72-2565, Bing v. Roadway Exp., Inc.

Docket Nº:72-2565.
Citation:485 F.2d 441
Party Name:William E. BING, for himself and all other persons similarly situated, Plaintiff-Appellant, v. ROADWAY EXPRESS, INC., et al., Defendants-Appellees.
Case Date:October 15, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 441

485 F.2d 441 (5th Cir. 1973)

William E. BING, for himself and all other persons similarly situated, Plaintiff-Appellant,

v.

ROADWAY EXPRESS, INC., et al., Defendants-Appellees.

No. 72-2565.

United States Court of Appeals, Fifth Circuit.

October 15, 1973

Page 442

[Copyrighted Material Omitted] Page 443

W. M. Mathews, Jr., Atlanta, Ga., for plaintiff-appellant.

Charles Kelso, Atlanta, Ga., for Roadway Express, Inc.

L. N. D. Wells, Jr., and Robert L. Mitchell, Atlanta, Ga., for Local 728 of the Int'l. Brotherhood of Teamsters.

L. N. D. Wells, Jr., Dallas, Tex., for defendants-appellees.

Dennis F. Gordon, Atty., U. S. Dept. of Justice, Washington, D. C., John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., Joel L. Selig, Squire Padgett, David L. Rose, U.S. Dept. of Justice, Washington, D. C., amicus curiae.

Before THORNBERRY, AINSWORTH and RONEY, Circuit Judges.

THORNBERRY, Circuit Judge:

In this Title VII action we are presented with the problem of how to provide a remedy for employees who suffered the ill effects of discrimination that resulted from Roadway's "no-transfer"

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rule. 1 The trial court gave relief by enjoining future discrimination, ordering the issuance of a notice that required all discriminatees to come forward and present their claims, declaring that five blacks should be hired as road drivers with seniority to date from their first application for the job, and denying back pay for all concerned. From this decree plaintiff appeals, and we modify in part, affirm in part, and remand for redetermination of Bing's back pay.

I. Factual and Procedural Background

This case has its origins in William Bing's 1967 charge that Roadway's "no-transfer" policy violated Title VII of the Civil Rights Act of 1964. 2 Briefly stated, that policy required an employee wishing to transfer from one collective bargaining unit to another to resign and then apply for the desired job, forfeiting all employment rights accrued under his old job. In this case, for example, a city driver who wanted to be a road driver would have to resign his position and then apply for the OTR (over-the-road) job as if he were a stranger to the company, with no assurance from Roadway prior to resigning his job that he would be hired for the new position. Because this practice discouraged transfers and perpetuated the effects of Roadway's discontinued policy of hiring only whites for the position of road driver, this court found the no-transfer rule to be an unfair employment practice prohibited by Title VII and ordered the district court to fashion suitable remedial measures.

Having determined that Roadway cannot use its no-transfer policy to bar Bing and the members of his class from applying for road driver positions without surrendering their current positions but, instead, must consider the applications and judge them by the same standards as all other applicants, we remand the cause to the district court for further proceedings consistent with this opinion.

Bing v. Roadway Express, Inc., 5th Cir. 1971, 444 F.2d 687, 691.

Having established Roadway's liability, we remanded the case to the district court. As its first remedial step the court ordered Roadway to issue a notice to all its black Atlanta terminal employees, advising them to make known in one month their interest in becoming a road driver. 3 The notice states that its

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purpose was to "identify [for the judge] those present Negro employees at the Atlanta terminal who would be interested in and qualified for a road driver position." The notice generated nine timely responses other than Bing's.

Of those who came forward, the court declared that Bing, Hubert Melson, Richard G. Hicks, James R. Johnson, and Willie Stroud, Jr., met "all of the defendant's standards for employment as road drivers, and are entitled to employment as road drivers." Their unit seniority 4 would run from the date on which they would have entered the road unit "but for discrimination." That date was determined by their first application for transfer to the road driving unit. They retained company seniority for fringe benefit purposes. The court chose the application date as the beginning point for back pay purposes as well, but it found that none of the men were entitled to back pay. Future transferees would get seniority from the date they enter their new unit.

For various reasons the court found that applicants John T. Johnson, Jesse Owens, John Dawson, and Roosevelt Presley were not qualified. Of those parties only the decision as to Johnson is appealed in this case. The court reserved decision on applicant Wess Shorty, Jr., until Shorty could produce evidence substantiating his claim to military driving experience. The court denied Emery Houseworth's application on the grounds that he failed to meet the deadline for responding to the court-or-dered notice.

Besides granting relief in these individual cases the court enjoined Roadway from continuing its no-transfer rule and all other discriminatory practices. It required Roadway to judge future transfer applications of city employees by uniform, color blind standards.

While the court was devising an appropriate remedy on remand, two new faces appeared on the scene. The United States entered as amicus curiae and, at its suggestion, the court joined Local 728 of the International Brotherhood of Teamsters as a party defendant. The union's collective bargaining agreement with Roadway provided that job seniority for all workers would date from their entry into their bargaining unit, and the United States argued that the agreements should be reformed to give all affected class members company seniority for all purposes including layoffs and job bidding. Instead the court granted job seniority from date of application and not date of hire. In this appeal the union defends the court's solution.

II. The Issues

The participants in these proceedings have raised three main issues on appeal. We must determine whether this is a class action, and, if so, what legal effect was created by the notice. Next in importance is the seniority issue-does the trial court's "application date" formula provide proper relief? A third issue, discussed primarily by the Government, is whether the court should have awarded (a) back pay to all injured class members and (b) back pay to Bing.

III. Class Action

Rule 23(c)(1) of the Federal Rules of Civil Procedure requires that

As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.

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An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits. (Emphasis supplied.)

Fed.Rules Civ.Proc. Rule 23(c)(1), 28 U.S.C. Plaintiff's complaint labeled his suit a class action, but the trial court never entered a 23(c)(1) order. Although no one raised this problem in the proceedings below, the absence of a 23(c)(1) determination raises three questions on appeal. Is this a class action? Under what section of Rule 23? What is the class? By examining the briefs and the record we must put the proper labels on the substance of the proceedings below.

A. Is this suit a class action?

The district court's failure to rule whether this case was a class action apparently escaped the attention of all the parties in the proceedings below. Nowhere in the record do we find a motion by plaintiff-appellant that his cause be determined a class action, and likewise missing from the record is any objection by defendants-appellees that it would be improper to frame this suit as a class action. Roadway raises this issue for the first time on appeal, and presents this court with a novel question: Can a class action exist without a formal, explicit determination by the court? For the reasons stated below we conclude that in this case we may infer that the trial court approved the class action nature of this lawsuit.

It was apparent from the beginning that Bing intended his suit to be a class action. The action was brought by Bing on behalf of himself and "all others similarly situated." He complained that Roadway's no-transfer rule discriminated against himself and "all others similarly situated, and his complaint alleged that the union's regulations and policy were discriminatory toward Negroes and prevented "Negroes from having equal employment. . . ." For relief he asked the court to enjoin the union from "discriminating against petitioner and others similarly situated," to award him damages and all other relief that was just or required. Thus this case differs from Danner v. Phillips Petroleum Co., 5th Cir. 1971, 447 F.2d 159, where we held that class relief was not appropriate because ". . . class action relief must be predicated upon a proper class action complaint satisfying all the requirements of Rule 23." Id. at n. 10, p. 164. In that case plaintiff's complaint alleged only discrimination against herself and requested relief only for herself. In this case Bing alleged harm to a class and requested relief for a class.

Although the complaint must have notified Roadway and the union that Bing sought class relief, the record reveals no objection to, or motion to dismiss because of, the class nature of this action. We infer from the record's silence that all parties to the action knew of its class nature and acquiesced in it.

We infer that the trial court also believed the suit to be a class action. After this court remanded the case for remedial proceedings, Bing moved to amend his complaint. In its order denying the motion to amend, the court said, "[t]his case was originally filed as a class action. . . ." The...

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