Andrews v. Bechtel Power Corp.

• Decision Date: 19 December 1985
• Docket Number: No. 84-1913,84-1913
• Citation: 780 F.2d 124
• Parties: 39 Fair Empl.Prac.Cas. 1033, 38 Empl. Prac. Dec. P 35,759, 19 Fed. R. Evid. Serv. 1611 Augustine ANDREWS, Sr., Plaintiff, Appellant, v. BECHTEL POWER CORPORATION and Local 276, Plumbers and Pipefitters Union, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 124

780 F.2d 124

39 Fair Empl.Prac.Cas. 1033,

38 Empl. Prac. Dec. P 35,759,

19 Fed. R. Evid. Serv. 1611

Augustine ANDREWS, Sr., Plaintiff, Appellant, v. BECHTEL POWER CORPORATION and Local 276, Plumbers and Pipefitters Union, Defendants, Appellees.

No. 84-1913.

United States Court of Appeals First Circuit.

Argued Sept. 6, 1985.

Decided Dec. 19, 1985.

Walter R. Stone, with whom Sharon O'Keefe, and Edward L. Gerstein, Providence, R.I., were on brief, for appellant.

David M. Pellow with whom John J. Dee and Bond, Schoeneck & King, Syracuse, N.Y., were on brief for appellee Bechtel Power Corp.

James A. Toomey with whom Barbara J. Saint Andre and Murphy, Lamere & Murphy, Braintree, Mass., were on brief for appellee Local 276, Plumbers and Pipefitters Union.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and CEREZO, ^* District Judge.

BOWNES, Circuit Judge.

Plaintiff-appellant Augustine Andrews appeals a judgment for defendants-appellees Bechtel Power Corporation and Local 276, Plumbers and Pipefitters Union, in a Title VII employment discrimination case arising out of incidents which took place in 1969. Andrews, who was represented by counsel from the initial filing of the suit in 1973 to just before the case went to trial in 1982, handled the trial pro se. In addition to claiming that the district court erred by finding for the defendants, Andrews also claims that the district court erred because it denied class certification, it permitted him to proceed pro se, it restricted evidence of classwide discrimination, and it denied his motion to amend the complaint at the eve of the trial.

I. FACTS

The claimed discrimination arose when Andrews, who is black, attempted to get a job as a pipewelder at the Pilgrim I nuclear power plant being built by Bechtel. Bechtel was a party to a nationwide collective bargaining agreement which required it to procure pipewelders through local union hiring halls. Sometime during March or April of 1969, Andrews went to Local 276 and told its business manager, John Lee, that he wanted to be referred to the Pilgrim I site for employment as a pipewelder. Lee had him fill out a card with his name and address and told him that he would be referred to the site when his name came up. Lee testified that he kept the employment cards in order of application and that after the Union welders had been referred he made referrals from the employment cards in the chronological order of application. Andrews testified that, after finding out from Lee that there were no black members of Local 276, he asked Lee if he could become a member. He claims Lee responded that "the roads are full." Andrews also claims that he immediately filed a complaint with the Massachusetts Commission Against Discrimination (MCAD). He returned to the Union hall and was told that he would be referred when the local membership was exhausted. He then filed a second complaint with MCAD on June 3, 1969. The district court found no evidence of any formal complaint to MCAD before June 3. Sometime after the June 3 complaint, MCAD suggested to the Union that Andrews be given an immediate referral to Pilgrim I; the Union, however, refused to refer Andrews ahead of individuals who had applied earlier than he did. On July 22, 1969, Andrews received a referral to the Pilgrim I job site from Local 276 and reported there for work.

The Atomic Energy Commission, which regulated the construction of nuclear power plants, required that all piping be done by welders who had qualified by successfully completing a test weld under the Boiler and Pressure Vessel Code of the American Society of Mechanical Engineers (the ASME Code). Andrews had been a welder at the Fore River Shipyard in Quincy, Massachusetts, for nineteen years and had been a highly successful nuclear pipe welder for nuclear submarines at the shipyard from 1965-67, but had not worked as a welder for two years preceding his referral to Bechtel. He had previously qualified under the Navy's welding code, but had never been tested under the ASME Code. The ASME test required that the pipes be welded using an open butt procedure. At the shipyard, where plaintiff had worked, most welding was done using a backing ring or consumable insert. Welding an open butt joint is more difficult than welding a joint using a backing ring or insert.

The welding test was administered by Jack Drust. Andrews twice requested that Drust make available to him the written procedure for the weld, a step-by-step guide to how the weld was to be done established by the ASME. Drust denied this request and gave Andrews oral instructions on how to make the weld. The first step in the test required the welder to "tack" the pipe, getting it ready for the actual welding. Next, the welder had to complete a "root pass" using specified material. A "root pass" is an initial layer of welding material joining the pipes. If the root pass was found visually acceptable at this stage, meaning that the heat had appropriately penetrated the material and there were no crevices on the inside of the weld, the welder would be permitted to finish the weld, which then would be tested for strength using a guided bend test. After Andrews completed the root pass on his test pipe, Drust inspected it and found it visually unacceptable. Andrews asked to be allowed to complete the weld and have it undergo the guided bend test, but Drust denied the request. Drust also refused to let Andrews take an immediate retest. While Bechtel did permit welders to take the test again after practicing for a few weeks and obtaining a new referral from the Union, Andrews never contacted either Bechtel to request a retest or the Union to request a second referral.

After Andrews had failed the test and was terminated by Bechtel, MCAD issued a final disposition on his complaint, indicating that Bechtel had agreed to retest Andrews after some weeks of training. MCAD then referred Andrews to the EEOC and he filed a complaint with it in the fall of 1969. The EEOC completed its investigation in 1971 and found that, while there was probable cause to believe that Bechtel and Local 276 did discriminate against blacks, there was no probable cause to believe that Andrews as an individual had been discriminated against. The EEOC, Bechtel and Local 276 entered into a conciliation agreement and Andrews was issued a Right to Sue Notice on August 14, 1973.

II. THE DENIAL OF CLASS CERTIFICATION

On November 9, 1973, Andrews filed a complaint in United States District Court for the District of Massachusetts charging that the Union and Bechtel had engaged in discriminatory hiring practices against himself and all other black persons similarly situated in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., the fourteenth amendment and 42 U.S.C. Sec. 1981, and seeking injunctive and monetary relief. At this time, Andrews was represented by Morris Shubow. Local 276 answered in December of 1973 and Bechtel answered in February of 1974. The case then lay dormant for the next three years until Andrews filed interrogatories in February of 1977. After some months of dispute about the scope of discovery, the case was assigned to Judge Aldrich, sitting in the district court. Andrews had moved to be certified as a class representative on behalf of

all past, present, and future actual and potential black applicants and employees in manual job classifications for Bechtel Corporation ... at the Pilgrim Power Station Project(s) in Plymouth, Massachusetts or at any other alternative site within the jurisdiction of this Court who have been denied equal employment opportunities on account of their race.

Judge Aldrich held a preliminary hearing in December of 1977 at which Andrews was represented by Elizabeth Rodgers, a new member of Morris Shubow's law firm. At this hearing, Judge Aldrich expressed great concern about the adequacy of Andrews' counsel to represent the class given the enormous delay between the filing of the suit in 1973 and the commencement of pretrial work in 1977 and ordered Morris Shubow to submit an explanation for this delay. Shubow told the court that he had filed the complaint for Andrews after representing him pro bono before the EEOC, knowing that he would not be able to handle the case due to an already overloaded practice. He, therefore, attempted to interest other attorneys in the case with no success. He then began a process of expanding his firm in order to be able to handle the case. In 1976, the firm hired a law student who drafted the interrogatories. It then hired Elizabeth Rodgers who, although just out of law school, had quite a bit of experience with Title VII litigation. As soon as Rodgers was admitted to the bar, she filed the interrogatories.

In addition to his concern about the adequacy of counsel to prosecute a class action, Judge Aldrich also expressed concern about the broad scope of the class requested, which would include workers from unions other than Local 276, and ordered the parties to file briefs on the class certification issue. In a memorandum and order dated March 24, 1978, Judge Aldrich determined that, although counsel would be inadequate to represent the broad class of black manual laborers, due to the delay and the failure to join the other craft unions, adequate representation of a narrower class would be possible. He proposed a class consisting of "actual black applicants for referral by the Union, or once referred, applicants for employment by Bechtel, at the Pilgrim I project as nuclear welders, and black employees there who were potential applicants for transfer from day laborer to nuclear welder." While finding that as to this class Andrews' claim was typical and that there were questions of law and fact common to the class, Judge Aldrich stated that there was no showing of numerosity such that joinder would be impracticable and ordered discovery limited to that issue.

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