565 F.2d 1364 (6th Cir. 1977), 75-1776, Alexander v. Aero Lodge No. 735, Intern. Ass'n of Machinists and Aerospace Workers, AFL-CIO

Docket Nº:75-1776 and 75-2097 to 75-2099.
Citation:565 F.2d 1364
Party Name:Dec. P 7909 Ramsey ALEXANDER and Robert F. Newman et al., Plaintiffs-Appellees, Raymond L. Dennis and Warner McCreary, Plaintiffs-Intervenors, v. AERO LODGE NO. 735, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Defendant-Appellant. Ramsey ALEXANDER and Robert F. Newman et al., Plaintiffs-Appellees, Raymond L. Dennis and W
Case Date:November 01, 1977
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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565 F.2d 1364 (6th Cir. 1977)

Dec. P 7909

Ramsey ALEXANDER and Robert F. Newman et al., Plaintiffs-Appellees,

Raymond L. Dennis and Warner McCreary, Plaintiffs-Intervenors,




Ramsey ALEXANDER and Robert F. Newman et al., Plaintiffs-Appellees,

Raymond L. Dennis and Warner McCreary, Plaintiffs-Intervenors,



Nos. 75-1776 and 75-2097 to 75-2099.

United States Court of Appeals, Sixth Circuit

November 1, 1977

Argued Oct. 13, 1976.

Rehearing and Rehearing En Banc Denied Jan. 24, 1978.

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Cecil D. Branstetter, Carrol D. Kilgore, Branstetter, Moody & Kilgore, Nashville, Tenn., for defendant-appellant in 75-1776 and 75-2098.

William Waller, Sr., Robert McCullough, Nashville, Tenn., for defendant-appellant in 75-1776.

Naphin, Banta & Cox, Don A. Banta, Chicago, Ill., for defendant-appellant in 75-1776, 75-2097 and 75-2099.

Avon N. Williams, Jr., Nashville, Tenn., Jack Greenberg, New York City, Morris J. Baller, Mexican American Legal Defense Fund, San Francisco, Cal., Lutz A. Prager, E.E.O.C., Washington, D.C., for plaintiffs-appellees in 75-1776, 75-2097, 75-2098 and 75-2099.

James P. Scanlan, E.E.O.C., Washington, D.C., for amicus curiae E.E.O.C. and plaintiffs-appellees in 75-2097, 75-2098 and 75-2099.

William Waller, Waller, Lansden, Dortch & Davis, Nashville, Tenn., for defendant-appellant in 75-2097 and 75-2099.

James M. Nabritt, III, New York City, Russell C. B. Ennix, Jr., Nashville, Tenn., for plaintiffs-appellees in 75-2097 to 75-2099.

Before EDWARDS and ENGEL, Circuit Judges and CECIL, Senior Circuit Judge.

ENGEL, Circuit Judge.

These appeals involve two employment discrimination actions brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. The suits were consolidated for trial and present common issues concerning individual and class wide allegations of racial discrimination.

Plaintiff Ramsey Alexander, a black male, commenced a class action on January 13, 1966 against Avco Corporation's Aerospace Structures Division in Nashville, Tennessee (Avco or the Company) and against the union, Aero Lodge No. 735 of the International Association of Machinists and Aerospace Workers, AFL-CIO (Aero Lodge or the Union), which represents the hourly employees at that facility. Alexander alleged that on account of his race Avco had denied him certain promotional opportunities and that Aero Lodge had failed to represent him fairly. He sought to represent a class of black employees and job applicants, complaining that Avco had engaged in discriminatory practices as to them in the areas of training, transfers, promotional opportunities, and job classifications and that Aero Lodge had cooperated with the Company in these practices. 1

In 1971 the district court allowed two black males, Raymond L. Dennis and Warner McCreary, to intervene in this action, based on their allegations that Avco was racially motivated in discharging Dennis and in suspending McCreary and that Aero Lodge did not fairly present their grievances.

Plaintiff Robert F. Newman, a black male, filed a separate class action on December 30, 1968, alleging that Avco had unlawfully discharged him on the basis of his race and that Aero Lodge failed to process his grievance adequately. He raised allegations of discriminatory class wide practices similar to those contained in the Alexander complaint. Both plaintiffs sought injunctive and other equitable relief, as well as monetary awards for their lost

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wages. By an amendment filed shortly before trial, they also requested back pay for class members.

On a summary judgment motion the district court dismissed Newman's complaint on the ground that he had made a binding election of remedies by earlier submitting his claim to an arbitrator. Rejecting that conclusion, this court reversed and remanded for a hearing on the merits. Newman v. Avco Corp., 451 F.2d 743 (6th Cir. 1971).

A consolidated trial was held between June 26 and August 5, 1972, and the parties presented evidence concerning the individual and class wide claims. By a memorandum decision of December 18, 1973, the district court sustained the individual claims of plaintiffs Alexander and Newman against both the Company and the Union. It sustained Dennis' claim against the Company, but held that the Union had in fact represented him fairly. The court found no violation of McCreary's rights. Further, the court held that the plaintiffs were proper representatives of a class:

(C)onsisting of past, present and prospective black employees of the defendant Avco Corporation, and past, present and prospective black members of Aero Lodge No. 735, who allegedly have suffered or may suffer by reason of the alleged discriminatory practices of the defendants. These plaintiffs have standing to properly challenge the alleged racially discriminatory policies and practices of the defendant company, Avco Corporation, in the areas of (a) classification as to the types of employment available to black people, (b) training, (c) working conditions, (d) promotions, (e) transfers, (f) compensation, and (g) terminations. Plaintiffs further have standing to challenge the alleged racially discriminatory policies and practices of defendant union Aero Lodge No. 735 in allegedly unfairly, inadequately, arbitrarily, discriminatorily, and in bad faith representing the interests of black employees in these areas.

Significantly, this class did not include unsuccessful black job applicants, but only black employees at Avco. The court found that both the Company and the Union had engaged in several employment practices that unlawfully discriminated against the class.

Prior to this opinion there had been no formal determination under Rule 23(c) (1), Fed.R.Civ.P., as to whether the suits were properly brought as class actions. Three days before trial, the plaintiffs did file a motion for an evidentiary hearing on this question, but it was not expressly resolved until the decision on the merits 18 months later.

At a subsequent hearing the defendants contended that the failure to give notice of the suit to class members violated due process. The district court agreed and decertified the class on August 20, 1974, while allowing certain black employees to intervene individually. It ordered Avco to reinstate Newman and Dennis to their former positions, to promote Alexander to a better job, and to pay the men lost wages. However, upon reconsideration the court reversed this ruling as to the class and by a February 11, 1975 order reinstated the class action and required that notice be then given to the class members. The individual relief was reaffirmed and the defendants were required to comply immediately with a plan of general injunctive relief. Defendant Avco filed a timely motion to amend a small portion of the injunctive relief, which request was granted in part on July 16, 1975.

Following an additional hearing, the court entered an order on June 3, 1975 fixing the amounts of back pay for the individual plaintiffs and awarding attorney fees. A June 20, 1975 order slightly modified the latter award.

Both defendants noted an appeal from the orders of February 11 and June 3, and Avco also appealed from the June 20 order. The Company and the Union challenge the class action on procedural grounds, dispute the findings of discriminatory practices, and assert that the district court exceeded its

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authority as to certain aspects of the injunctive relief and by awarding excessive attorney fees.

We reverse in part the findings of class wide violations, vacate the injunctive relief, and remand for further proceedings. As to the individual claims, we affirm the orders as to Robert F. Newman and Raymond L. Dennis, but reverse as to Ramsey Alexander.


While not specifically raised by the parties, we consider the threshold question of jurisdiction of the appeal herein, because it is apparent that the orders appealed from are not final. Though the plaintiffs expressly requested an award of back pay for class members, the district court has not disposed of this particular prayer for relief. 2 Jurisdiction properly lies, however, under 28 U.S.C. § 1292(a)(1), because the defendants have appealed from an interlocutory order granting injunctive relief. 3 Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976).

We recognize that a court of appeals should ordinarily limit its review to the narrow question of whether the district court abused its discretion in issuing the interlocutory injunction, intruding into the merits of the case only to the extent necessary to decide that issue. See Blaylock v. Cheker Oil Co., 547 F.2d 962, 964-65 (6th Cir. 1976); Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086, 1091 (5th Cir. 1973); Hurwitz v. Directors Guild of America, Inc., 364 F.2d 67, 70 (2d Cir.), cert. denied, 385 U.S. 971, 87 S.Ct. 508, 17 L.Ed.2d 435 (1966). The rule, however, is "one of orderly judicial administration and not a limit on jurisdictional power." Mercury Motor Express, Inc. v. Brinke, supra, 475 F.2d at 1091. Such self-restraints, which are normally highly desirable in interlocutory appeals, are less attractive where, as here, the case is one of long standing, has already been tried on the merits, and where most of the...

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