Dickerson v. United States Steel Corp.

• Decision Date: 25 July 1977
• Docket Number: Civ. A. No. 73-1292.
• Citation: 439 F. Supp. 55
• Parties: Moses DICKERSON et al. v. UNITED STATES STEEL CORPORATION et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

439 F. Supp. 55

Moses DICKERSON et al. v. UNITED STATES STEEL CORPORATION et al.

Civ. A. No. 73-1292.

United States District Court, E. D. Pennsylvania.

July 25, 1977.

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Prather G. Randle, Alice W. Ballard, Philadelphia, Pa., for plaintiffs.

Henry T. Reath, Duane, Morris & Heckscher, Philadelphia, Pa., S. G. Clark, Jr., Gen. Counsel, U. S. Steel Corp., Pittsburgh, Pa., Robert L. Weinberg, Julia Penny Clark, Washington, D. C., for defendants.

MEMORANDUM AND ORDER

NEWCOMER, District Judge.

This long trial has now reached a critical stage. Plaintiffs, a class of black production-and-maintenance (P & M) workers at the Fairless Works of United States Steel (USS), have rested their case after 58 days of trial. The Court has before it a number of motions made at or near the end of trial, including a motion to involuntarily dismiss. The Court below outlines its decisions on these various issues and its holdings. Part of the plaintiffs' case is dismissed, and the required findings of facts and conclusions of law are incorporated in this memorandum opinion.

DECERTIFICATION

Defendant U.S.S. has moved for decertification of the class action at this stage. This motion has been considered on a number of occasions, the most recent of these culminating in the Court's denial on May 19, 1977. U.S.S.' basis for again moving the Court to consider this issue is the recent decision in East Texas Motor Freight System v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977). In light of this Court's most recent ruling denying this motion, the Court will now only discuss what impact, if any, the Rodriguez opinion has on certification in this case.

Defendant argues that Rodriguez requires that all members of the class must have the "same injury" as the class representative. Although the Court agrees with this statement of law in general, the strict interpretation which the defendant urges cannot be accepted. Defendant in essence proposes that, in order to allow an action under Rule 23(b)(2), each class member must be virtually interchangeable, with each individual having factually identical claims to that of the named representative. This would virtually eliminate most class actions of employment discrimination. This Court sees nothing in the Rodriguez opinion which demands such a drastic limitation on class actions.

The High Court's primary concern in Rodriguez was not with the similarity of claims among the class members, but with the adequacy of the named representatives. The Justices held that the circuit court erred in certifying a class when it was already established that the named plaintiffs had suffered no injury whatsoever. That is not the situation in the case at bar. At the time of certification, the two named plaintiffs were actively pursuing not only remedies for injuries to the class, but also for injuries they claimed to have sustained. Therefore under Rodriguez, they would be proper and adequate representatives.

Defendant claims that decertification is required if the named plaintiffs fail to prove their individual claims. Rodriguez states to the contrary.

"Obviously, a different case would be presented if the District Court had certified a class and only later had it appeared that the named plaintiffs were not class members or were otherwise inappropriate class representatives. In such a case, the class claims would have already been tried, and provided the initial certification was proper and decertification not appropriate, the claims of the class members would not need to be mooted or destroyed because subsequent events had undermined the named plaintiffs' individual claims." Rodriguez, 431 U.S. at 406, n. 12, 97 S.Ct. at 1898.

Thus, since the class claims have already been presented in toto by the plaintiffs, any failure of the named representatives' prima facie case or in the final adjudication will not affect the propriety of proceeding with this as a class action. Since the class was properly certified before, and the class claims have been presented to the Court, the motion to decertify is denied.

SUMMARY JUDGMENT

Defendant United Steelworkers of America and its locals ("the union") have filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6), or in the alternative, for summary judgment under Fed.R.Civ.P. 56. Upon consideration of all the briefs and the evidence presented at trial, the Court has decided to deny these motions.

At this stage of the proceedings, with the Court considering evidence outside the pleadings, a 12(b)(6) motion should be treated as one for summary judgment. Fed.R.Civ.P. 12(c); United States v. Lewisburg Area Schools, 539 F.2d 301 (3d Cir. 1976). Therefore, in effect the Court has only a Rule 56 motion before it. The Court, in considering such a motion, may not resolve issues of credibility or fact; if material fact issues are in dispute, summary judgment is not appropriate. Lockhart v. Hoenstine, 411 F.2d 455 (3d Cir. 1969), cert. denied, 396 U.S. 941, 90 S.Ct. 378, 24 L.Ed.2d 244 (1969). Summary judgment is only allowed when the law clearly requires it. The proceedings in this case have been governed by the provisions of a pretrial order, (Pretrial Order No. 3), signed by the Court on November 18, 1976. Section 1 of that order required plaintiffs to state in their pretrial statement "the theory of their case, including a statement of claims, issues of contentions, regarding the specific acts or practices of each defendant which plaintiffs claim have discriminated against the plaintiff class and/or the individual plaintiffs . . . (and) the legal bases and legal authorities supporting the theory of the case set forth . . ." Therefore, the Court must look to the pretrial statement, known as the "Red Book," to decide what are the allegations being made against the union.

In their pretrial statement, four claims are asserted against the union. Three of these claims essentially assert that the Union is vicariously liable for the employer's acts.¹ Under Title VII, it is illegal for a labor union to "cause or attempt to cause an employer to discriminate . ." 42 U.S.C. § 2000e-2(c). The basis of the plaintiffs' claim is that the "cause" of the employer's action is the union's failure to bargain away the practices complained of. This is a claim then of "omission" and not "commission." Many courts considering this general question have sustained such a Title VII claim, but in varying ways. In Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979 (1973), the Court pointed out that a union has a duty to protect its members from discrimination, first established by Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). "Where blacks are in a minority, as they so often are in large industrial unions . . ., tacit union acquiescence in an employer's discrimination effectively produces the same end result that was condemned in Steele." 478 F.2d at 989. Furthermore, the union has a responsibility to negotiate for non-discriminatory treatment.

"Where a union has not done so and where there is such solid evidence of employer discrimination as is alleged here, it would undermine Title VII's attempt to impose responsibility on both unions and employers to hold that union passivity at the negotiating table in such circumstances cannot constitute a violation of the Act." Id.

In Hairston v. McLean Trucking Co., 62 F.R.D. 642 (M.D.N.C.1974), vacated on other grounds, 520 F.2d 226 (4th Cir. 1975) the court there faced a similar situation, where the discriminatory act arose upon hiring. There was no evidence, as there is none here, that the union controlled or participated in the hiring process. The court held the local union liable for one-third of the attorneys' fees and costs.

"The Court has done this because it feels that Local 391, by its acquiescence, shares a part of the blame in discriminating against plaintiffs. While Local 391 took no affirmative action in discriminating, it certainly knew of the companies' actions and encouraged such by its own inactions . . . Local 391 plays an important role in the employment situation at MAS and McLean by representing the plaintiffs. The Court feels that its decision will serve to promote the policy and purposes of the Civil Rights Act of 1964 by encouraging those who have the power to stop discrimination to use that position." 62 F.R.D. at 673.

Other cases² which hold the union liable for "acquiescing" in acts found to be discriminatory have been decided by the Courts of Appeals for the Fifth and Sixth Circuits.³ Since the Court has decided to follow this rule, summary judgment on these three claimed areas of discrimination — transfer, initial assignment and discipline — must be denied.

The union argues that it cannot be held liable for acts of the employer in light of the decision in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). That case held that a seniority system could not be held illegal under Title VII since it was protected by § 703(h) of the Act, 42 U.S.C. § 2000e-2(h). Therefore, the Supreme Court held that "the union's conduct in agreeing to and maintaining the system did not violate Title VII." 431 U.S. at 356, 97 S.Ct. at 1865. The Justices ordered that the injunction against the union be vacated.

Defendant claims that the Supreme Court's release of the union in Teamsters impliedly rejects any theory that the union was liable for any other illegalities that might be contained in the collective bargaining agreement or done with its acquiescence. The Court does not read Teamsters as eliminating the union's liability. On the contrary, the implication of that decision, where the only claim of union liability was based on its agreement as to the seniority system, was that the...