657 F.2d 890 (7th Cir. 1981), 80-1008, Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, U.A.

Docket Nº:80-1008, 80-1650.
Citation:657 F.2d 890
Party Name:Josef EGGLESTON and Albert Viera, Plaintiffs-Appellants, v. CHICAGO JOURNEYMEN PLUMBERS' LOCAL UNION NO. 130, U. A., et al., Defendants- Appellees. Edell PLUMMER, et al., Plaintiffs-Appellants, v. CHICAGO JOURNEYMEN PLUMBERS' LOCAL UNION NO. 130, U. A., et al., Defendants- Appellees.
Case Date:August 11, 1981
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 890

657 F.2d 890 (7th Cir. 1981)

Josef EGGLESTON and Albert Viera, Plaintiffs-Appellants,

v.

CHICAGO JOURNEYMEN PLUMBERS' LOCAL UNION NO. 130, U. A., et

al., Defendants- Appellees.

Edell PLUMMER, et al., Plaintiffs-Appellants,

v.

CHICAGO JOURNEYMEN PLUMBERS' LOCAL UNION NO. 130, U. A., et

al., Defendants- Appellees.

Nos. 80-1008, 80-1650.

United States Court of Appeals, Seventh Circuit

August 11, 1981

Argued April 10, 1981.

Rehearing and Rehearing In Banc, Denied Oct. 7, 1981.

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[Copyrighted Material Omitted]

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George F. Galland, Jr., Davis, Miner & Barnhill, Chicago, Ill., for plaintiffs-appellants.

Jerold S. Solovy, Howard R. Barron, Jenner & Block, Chicago, Ill., for Plumbing Contractors Ass'n.

Lawrence D. Ehrlick, Julian D. Schreiber Borovsky, Ehrlich & Kronenberg, Chicago, Ill., for Journeyman Plumbers Local.

Leonard. S. Goslawski, Paul V. Esposito, Lewis, Overbeck & Furman, Chicago, Ill., for Joint Apprenticeship Committee Local.

Before FAIRCHILD and WOOD, Circuit Judges, and HOFFMAN, [*] Senior District Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

This began as a not uncommon civil rights suit against a local union and a contractors association. It was brought by five named plaintiffs, seeking to represent a class of black and Hispanic persons alleging employment discrimination in their efforts to gain entry into the plumbing trade. 1 Controversy quickly erupted between attorneys over mutual discovery efforts which had been limited by the court to class certification issues. Although the complaint was filed in 1977 and was followed by voluminous interrogatories and in excess of 2,600 pages of deposition transcript, the case is before us now with the class issue still unresolved. The trial judge assessed all the fault against counsel for plaintiffs and dismissed the entire suit with prejudice. This appeal followed.

I.

A resolution of the controversy on the merits, the legitimate controversy between the litigants, not the lawyers, is nowhere in sight. 2 We regret that this court must review this type of dispute, because the conduct of this case reveals an abuse of the judicial processes which does a disservice not only to the court and litigants, but also to the public interest in the fair and efficient resolution of disputes. 3

Background

The five named plaintiffs are represented to be either black or Hispanic persons who had applied unsuccessfully for apprentice or journeyman membership in the Chicago Journeymen Plumbers' Local Union No. 130. Following those failures, each plaintiff allegedly filed charges with the Equal Employment Opportunity Commission ("EEOC"), and after exhausting that avenue retained counsel and filed suit against the three defendants.

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Plumbers' Local Union No. 130 ("Local 130") is alleged to be the labor organization representing all plumbers employed in Cook County, Illinois, and also certain plumbers employed outside the county. Plumbing Contractors Association of Chicago and Cook County ("Contractors Association" or "PCA") is alleged to represent most plumbing contractors within the jurisdiction of Local 130 and to be a co-signatory with Local 130 to a collective bargaining agreement which governs the terms and conditions of employment in the plumbing industry within Local 130's jurisdiction. It is further alleged that the Contractors Association, in consort with Local 130, controls the apprenticeship program operated by the Joint Apprenticeship Committee Local No. 130 U.A. ("JAC") which is alleged to be an unincorporated association that is an agent of and operates under the control of Local 130 and the Contractors Association in administering the apprenticeship program. The Committee is directed by a ten-person board, five members selected by the union and five by the Contractors Association.

Plaintiffs contend that substantially all plumbing work in the construction industry in the Chicago metropolitan area is performed under the labor agreement between Local 130 and the Contractors Association. Under the terms of that agreement there are two ways to enter into the plumbing trade and eventually become a "journeyman" plumber. One is to be admitted to the plumbers' apprenticeship program, and the other is to work for five years in the trade and then be recommended by a contractor. This latter procedure, however, first requires a permit from Local 130. At the conclusion of either procedure, the prospective journeyman must pass a test administered by Local 130.

Plaintiffs submit that the defendants have systematically denied admission into the apprentice program to blacks and Hispanics, and in the five-year program, the contractors association has refused to refer blacks and Hispanics to Local 130 to receive the permit necessary to gain the required qualifying experience. In addition to generally excluding blacks and Hispanics, plaintiffs aver that Local 130 has refused to administer the test for journeymen status to blacks and Hispanics and that the test, in any event, is discriminatory and non-valid. It is claimed that each of the named plaintiffs has been rebuffed from pursuing one or the other of the entry programs because of the alleged discrimination.

Discovery Problems

The trial court limited initial discovery to matters relevant to a determination of whether the suit should proceed as a class action. 4 Extensive interrogatories were exchanged, numbering into hundreds of questions and sub-questions. Things did not go smoothly from the outset. A series of motions to compel discovery were filed by each party. The trial judge labored patiently to resolve the questions during a period of months. 5 Next began the oral depositions of the named plaintiffs which lasted about sixteen days before the whole process collapsed. The plaintiffs claim that many questions were racially offensive; were intended to intimidate, harass and belittle plaintiffs; were argumentative, repetitious and obviously outside the knowledge of individual plaintiffs; and were not relevant to class certification issues.

Defendants seek to justify the questions propounded and fault the conduct of plaintiffs' counsel. They cite 965 refusals of the witnesses to answer. Defendants contend

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that race was a proper subject for inquiry because plaintiffs' complaint made it an issue and failed to identify which plaintiffs were black and which Hispanic. Further, defendants argue that the complaint was confusing in that it did not make clear which plaintiffs were alleging racial discrimination and which were alleging national origin discrimination. Defendants additionally aver that plaintiffs failed to object in court to the alleged harassment or to seek protective orders. Defendants also complain that plaintiffs not only refused to answer numerous questions, but that plaintiffs' counsel declared that certain subject matter areas were off limits. Further, it is alleged that plaintiffs' counsel held at least 127 conferences off the record with their clients under circumstances which suggested "coaching" during the course of the deposition testimony. It is claimed that plaintiffs' counsel generally disregarded the Federal Rules of Civil Procedure and the orders of the court, all of which disrupted the discovery proceedings. Two of the plaintiffs, Eggleston and Viera, it is charged, unilaterally terminated their depositions and refused to appear to complete them. Defendants submit that plaintiffs' counsel did not give accurate information about the necessity of providing an interpreter for Viera. After hours of what is described as futile attempts at examination of Viera, an interpreter was engaged. Later during the deposition Viera became ill and did not complete the deposition. Plaintiffs claim that Viera "collapsed from exhaustion" because of defense counsel's grueling examination.

During his deposition, as an example, Eggleston refused to answer about 200 questions which defendants say were class related and propounded to determine his experience, skill and qualifications to work as a journeyman plumber. Plaintiffs say, however, that the questions were only technical plumbing questions unrelated to class issues and therefore walked out of the deposition offering to return when only class related questions would be asked. Plaintiffs' counsel made it plain that he was not going to submit his clients for opposing counsel's "plumbing test," since opposing counsel himself "had flunked the legal test so far in this lawsuit," and that plaintiffs' counsel was not prepared "to make him the judge in any plumbing test...." We see no need to set down for posterity all the details of the deposition squabbling. We hope that what has already been briefly mentioned, together with some additional details, will be sufficient to paint the picture for our purposes. As a result, the district court dismissed the claims of Eggleston and Viera and entered a rule to show cause why the three remaining plaintiffs should not also have been dismissed. Five months later, after discovery remained bogged down, the court dismissed the claims of the remaining plaintiffs with prejudice.

Class Action and Discovery Overview

Class actions are governed by Fed.R.Civ.P. 23. 6 Plaintiffs seek to bring their

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class action under Rule 23(a) and (b)(2). Allegations of discrimination do not constitute a by-pass around Rule 23, as the Supreme Court made clear in East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 405-06, 97 S.Ct. 1891, 1897-98, 52 L.Ed.2d 453 (1977):

We are not unaware that suits alleging racial or ethnic discrimination are often by their very nature class suits, involving classwide wrongs. Common questions of law or fact are typically present. But...

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