Clark v. South Central Bell Tel. Co., Civ. A. No. 75-0526.

Citation419 F. Supp. 697
Decision Date17 September 1976
Docket NumberCiv. A. No. 75-0526.
PartiesVersa O. CLARK et al., and Intervenors, Donald Riggs and Billy Ray Jordan v. SOUTH CENTRAL BELL TELEPHONE COMPANY et al.
CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana


Robert E. Piper, Jr., Frank E. Brown, Jr., Piper & Brown, Shreveport, La., for plaintiffs and intervenors.

T. Haller Jackson, Jr., Jeffrey P. Victory, Tucker, Martin, Holder, Jeter & Jackson, Shreveport, La., John C. Carey, Jr., Gen. Counsel, South Central Bell Tel. Co., Birmingham, Ala., for defendant South Central Bell.

R. Jan Jennings, Patrick M. Scanlon, Adair, Goldthwaite, Stanford & Daniel, Atlanta, Ga., Charles B. Peatross, Wilkinson, Carmody & Peatross, Shreveport, La., for defendants Local 10411.


STAGG, District Judge.

Plaintiffs and intervenors, black employees and former employees of South Central Bell Telephone Company, brought this action against the Company and the unions of which they were members, Communications Workers of America and its Local 10411, alleging a pattern of racial discrimination in hiring, assignments, and promotions. They sought to represent a large class of applicants, employees, and former employees whom they alleged were the victims of the discrimination.

On January 14, 1976, the Court denied class certification as to the Company due to a consent decree that it had entered in an employment discrimination suit in a Philadelphia, Pennsylvania, district court. Equal Employment Opportunity Commission, et al. v. American Telephone & Telegraph Co., et al., No. 73-149 (E.D.Pa. Jan. 18, 1973). See E. E. O. C. v. American Telephone & Telegraph Co., 365 F.Supp. 1105 (E.D.Pa. 1973), aff'd 506 F.2d 735 (3d Cir. 1974). The settlement provided broad injunctive relief designed to eliminate discrimination in each job classification. In its ruling of January 14, 1976, the Court relied on a similar holding involving the same decree and defendant. See Smith v. South Central Bell Telephone Co., 518 F.2d 68 (6th Cir. 1975). Here, as there, the decree provides sweeping and adequate relief to correct discrimination by the Company against the class.

The same day the Court deferred certification of the class action as to the Union defendants until the trial on the merits. Thus, the case came to trial in an unusual posture, as a possible class action against the Unions but only as individual actions against the Company. In addition, of course, the named plaintiffs and intervenors stated individual claims against the Unions.

At the trial on the merits, plaintiffs' case consisted of defendants' answers to interrogatories, the testimony of the six named plaintiffs and intervenors as well as another ostensibly corroborating witness, and a witness who had prepared charts from the answers to interrogatories and Company records. After plaintiff rested 13 separate motions were made by the defendants. In substance, the Unions prayed that the case be denied class action status and that all six individual claims be dismissed by directed verdict. The Company moved for directed verdicts with respect to all six individual claims. All parties argued the merits of their positions and the Court took the motions under advisement. On Monday, August 30, 1976, the Court ruled from the bench that the class action against the Unions could not be certified and that all individual claims would be dismissed by directed verdict. The Court advised all parties that it would prepare a written opinion summarizing its findings.


Rule 23, F.R.C.P., establishes the criteria for the maintenance of a class action. Rule 23(b) describes three types of class actions. A plaintiff need only bring itself within the bounds of one of the three to entitle itself to proceed as a class. Rule 23(a) requires that the purported class representative meet four requisites before the suit may be maintained on behalf of the entire class. In applying the criteria to a particular case, the trial court retains discretion to decide each case on its own particular facts and circumstances. E. g., Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1123 (5th Cir. 1969). See also Green v. Missouri Pacific Railroad Co., 523 F.2d 1290 (8th Cir. 1975); Arkansas Educational Association v. Board of Education of Portland, Arkansas School District, 446 F.2d 763 (8th Cir. 1971). To exercise its discretion with care, this Court deferred its decision until plaintiffs completed their presentation of evidence.

Prior to 1966, the Federal Rules of Civil Procedure recognized true, hybrid and spurious class actions. To clarify the problems presented by the three types of class actions, Rule 23 was amended in 1966 to include the three types of action now within Rule 23(b)(1), (b)(2), and (b)(3).

Rule 23(b)(1) provides:

"An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) the prosecution of separate actions by or against individual members of the class would create a risk of
"(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
"(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests. . . ."

The standards requested in relief under any class claim in this case would be the same for the Unions toward all class members. Therefore, no risk exists that the Unions will be subjected to incompatible standards as against the individual members of the class. Thus, the class action is improper under the terms of Rule 23(b)(1)(A). Furthermore, the claims of the parties before the Court are of a wide variety, as would be the individual claims of the absent members. No decision as to the present parties would dispose of the claims of any absent parties. Indeed, the United States Court of Appeals for the Fifth Circuit suggests, and the parties to this litigation stipulated, that the proceeding in this case would be bifurcated. United States v. United States Steel Corp., 520 F.2d 1043 (5th Cir. 1976); Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437 (5th Cir. 1974), cert. denied 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1975). Thus, if the Unions are liable in a Stage I proceeding, the individual class members must intervene to present their individual claims in Stage II. The class procedure as to individual members, then, is very little different than the procedures in individual actions. Therefore, the risk described in Rule 23(b)(1)(B) is not present.

Rule 23(b)(2) provides:

"An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: . . . (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. . . ."

The complaints of the various parties and intervenors plaintiff in this action allege acts or refusals to act on the part of the defendant Unions on grounds generally applicable to the class. However, as the Court will explain later in this decision, there is a decided lack of evidence to support those allegations. In fact, all the adduced evidence dealt with specific instances of conduct. No witness testified with respect to any policy or practice toward the class about which he had personal knowledge. Plaintiffs did not call a single Company or Union official to attempt to define any policy or practice. Hence, the action is also improper under Rule 23(b)(2).

Rule 23(b)(3) provides, in pertinent part:

"An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: . . . (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions effecting only individual members, and that a class action is superior to other available methods for the fair and sufficient adjudication of the controversy. . . ."

In the case at hand, plaintiffs have presented no class claims at all, much less do class claims predominate. No testimony was elicited about any practice or policy, or the effect of that practice or policy on blacks as a class. Furthermore, class members will have to present individual actions under the Stage II proceeding if liability is found on the part of the defendant Unions, no litigation has already commenced by other class members, no reason appears to concentrate the claims in this forum, and, because many prospective applicants are not yet identified, management as a class action would be very difficult. Therefore, class action would also be improper under Rule 23(b)(3).

The four requirements of a Rule 23(a) commonly are known as numerosity, commonality, typicality, and adequacy of representation. This Court need not opine on the first three elements of Rule 23(a), as its decision may rest on whether representation of absent class members was adequate on the plaintiffs' case in chief.

The requirement that absent parties be represented adequately lies at the heart of the rationale that binds absent class members to a class judgment. Otherwise, to bind absent parties would deprive them of property without due process of law. E. g., Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673 (1921); Smith v. Swormstead, 57 U.S. (16 How.) 288, 14 L.Ed. 942 (1853).

The class action certification procedure of Rule 23(c) imposes a stringent duty on the Court to protect the interests of absent class members. The Fifth Circuit Court of Appeals...

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