Morelock v. NCR Corp.
| Decision Date | 09 November 1978 |
| Docket Number | 75-2282,Nos. 75-2220,s. 75-2220 |
| Parties | 18 Fair Empl.Prac.Cas. 225, 18 Empl. Prac. Dec. P 8646 Hubert MORELOCK et al., Plaintiffs-Appellants, v. The NCR CORPORATION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John B. Huber, Dayton, Ohio, for plaintiffs-appellants.
Carin Ann Clauss, Associate Sol., U. S. Dept. of Labor, Washington, D. C., for amicus curias.
Thomas J. Harrington, Pickrel, Schaefer & Ebeling, Gordon H. Savage, Dayton, Ohio, Robert E. Signom, II, Legal Dept., NCR Corp., Dayton, Ohio, for defendant-appellee.
Before WEICK, ENGEL and MERRITT, Circuit Judges.
This is a private action brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, Et seq., against The NCR Corporation (NCR or "Company"). Plaintiffs, Hubert Morelock, William Evans, Eugene Borgerding, Clayton Metcalf and Ralph Saunders 1 are present or former employees of NCR at its Dayton, Ohio facilities who either lost their jobs or feared the loss of their jobs through a reduction in the work force at the Dayton facilities, which reduction commenced on October 13, 1972. In essence, they allege that NCR conducted its reduction in the work force pursuant to a seniority system which was not bona fide within the meaning of § 4(f)(2) of the ADEA, 29 U.S.C. § 623(f)(2). They sought Inter alia, back pay, damages, reinstatement and an injunction enjoining NCR from discriminating against them on the basis of their age.
The District Court denied NCR's motion to strike plaintiffs' demand for a jury trial and ordered the issue of liability to be tried to a jury. Before submitting the case to the jury, the Court reserved NCR's motion for a directed verdict. The jury returned a verdict in favor of each plaintiff. After the verdict was rendered, NCR renewed its motion for a directed verdict and also moved for judgment notwithstanding the verdict (n. o. v.) and in the alternative, for a new trial. The District Court granted the motion for judgment n. o. v. and conditionally granted the motion for a new trial in accordance with the provisions of Fed.R.Civ.Pro. 50(c).
Plaintiffs appealed, assigning as error Inter alia the trial court's granting of NCR's motions for judgment n. o. v. and a new trial. NCR cross-appealed, raising the additional issues of (1) the propriety of a jury trial in a private civil action brought under the ADEA; (2) whether plaintiffs' action was time-barred by the applicable statute of limitations; and (3) whether each plaintiff was required to file a written consent to become a party plaintiff in the lawsuit, under the provisions of 29 U.S.C. § 256. 2
The appeal was argued before a panel of this Court on June 16, 1976. In an opinion filed on December 20, 1976, we held that there was no right to a jury trial in a private action under the ADEA. See 6 Cir., 546 F.2d 682. Consequently, we found that the jury empaneled by the District Court was in effect, an advisory jury, whose use did not relieve the District Court of its duty to make findings of fact and conclusions of law as required by Fed.R.Civ.Pro. 52. Because the District Court failed to do this, we vacated its judgment and remanded the case to the District Court for the entering of findings of fact and conclusions of law. 3
Subsequently, plaintiffs filed with this Court a petition for rehearing, with a suggestion for a rehearing en banc. After our denial of that petition, plaintiffs petitioned the Supreme Court for a writ of certiorari.
On February 22, 1978, the Supreme Court announced its decision in Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), which held that there is a right to a trial by jury in a private civil action for lost wages under the ADEA. The Supreme Court on March 6, 1978 vacated our judgment in the instant case and remanded the case to us for further consideration in light of Lorillard v. Pons, supra; Morelock v. NCR Corporation, 435 U.S. 911, 98 S.Ct. 1463, 55 L.Ed.2d 503 (1978). 4
Upon the remand to our Court, supplemental briefs were filed and the appeal was argued for a second time before a panel of this Court. By reason of the fact that the District Court tried the question of liability to a jury as required by Lorillard v. Pons, supra, we find that the issues raised by the parties are now ripe for disposition and accordingly, we reach the merits of this appeal. 5
We hold that this action was timely commenced within the applicable limitations period and that plaintiffs were not required to file written consents to become parties to this action. Furthermore, we affirm the District Court's grant of judgment n. o. v. and therefore, we find it unnecessary to reach the questions raised by plaintiffs with respect to the District Court's conditional grant of a new trial.
NCR is engaged in the production of business machines. Prior to 1972, almost one-half of its work force was employed in its facilities at its headquarters in Dayton, Ohio. During the early 1970's, the products of NCR changed from mechanical business machines to electronic business machines. The Company in 1972, in conjunction with this change in product line and therefore in production operations, embarked upon a "decentralization program" designed to reduce the level of operations at its Dayton facilities. The reductions in its work force which occurred in Dayton as a consequence of decentralization decreased the number of employees there from a peak of approximately 21,000 in 1970 to around 8000 at the time of trial.
Prior to 1964, almost all of NCR's Class "D" employees in the Dayton facilities were in a single collective bargaining unit, represented for purposes of collective bargaining, by the NCR Employees Independent Union of Dayton, Ohio (Union). The National Labor Relations Board (NLRB) in 1964, ordered that this bargaining unit be divided into two bargaining units namely, an "office and technical employees" bargaining unit and a "production and maintenance employees" bargaining unit. The Union continued as the collective bargaining representative of both units. Plaintiffs, because of the jobs they then held, became members of the office and technical employees' bargaining unit.
The seniority system applicable in 1972 to NCR's office and technical personnel, was derived from collective bargaining agreements entered into between the Company and the Union in 1964 and 1968. That system was based on the concept of vocational seniority. Pursuant to that concept, all of the jobs within the office and technical employees' bargaining unit were divided or grouped into vocational classifications. Seniority accrued by vocation. An employee acquired seniority upon the completion of six months' continuous service with the Company. An employee's seniority in his vocation was equal to the total amount of his continuous service with NCR. Upon transfer to a new vocation, an employee's seniority in his previous vocation immediately carried over to his new vocation so that his seniority in the vocation to which he was transferred was equal to his total seniority.
Layoffs were conducted on a departmental basis. An employee's seniority gave him certain displacement or "bumping" rights in the event his department was faced with a reduction in its work force. In the event of a reduction in the work force of a department, an employee could not be laid off unless he was the least senior in terms of service in his vocation in that department. An employee laid off in one department had the right to bump an employee with the least seniority in his vocation in the entire bargaining unit.
However, when the laid-off employee had the least seniority in his vocation in the bargaining unit, he still possessed what was known as "time increment bumping" rights. Those rights entitled him to bump an employee having no seniority (i. e., with less than six months' continuous service with the Company) in any other vocation within the bargaining unit and whose job he could perform. If there were no such person, the laid-off employee could displace an employee in any other vocation with six months' to one year's seniority provided he could perform the work. In the event there were no persons in the bargaining unit with six months' to one year's seniority that the laid-off employee was qualified to replace, he could be assigned by the Company to bump an employee whose job he could perform, having one year's to two years' seniority, then two years' to three years' seniority, and so on until all the remaining office and technical employees had more seniority than such laid-off employee. However, the laid-off employee was required to bump the employee with the least seniority whose job he could perform.
Plaintiffs, as of October 13, 1972, were all in the vocational classification known as Senior Developmental Electronics Technicians (senior techs). Another classification of electronics technicians, denominated Developmental Electronics Technicians also existed at that time. 6 These two vocational classifications were created by the 1964 collective bargaining agreement. Prior to that agreement, NCR had but a single classification of electronics technicians and it was the 1964 agreement which provided that electronics technicians already employed by NCR became "senior techs." That agreement further created the new vocational classification of electronics technicians, namely, the junior techs. The classifications were to distinguish between electronics technicians on the basis of skill, ability, and experience. Four of the plaintiffs, (Morelock, Evans, Metcalf and Saunders) were electronics technicians in 1964 and were made senior techs in 1965 when the 1964 agreement became effective. The remaining plaintiff (Borgerding) became a junior tech in 1967 and a senior tech in 1970.
Because both the senior tech and junior...
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