Forsberg v. Pacific Northwest Bell Telephone Co., Civ. No. 84-1401-FR.

• Citation: 622 F. Supp. 1147
• Decision Date: 12 July 1985
• Docket Number: Civ. No. 84-1401-FR.
• Parties: Stephanie E. FORSBERG, individually and on behalf of all similarly situated persons, Plaintiff, v. PACIFIC NORTHWEST BELL TELEPHONE CO., a Washington corporation, Defendant.
• Court: U.S. District Court — District of Oregon

622 F. Supp. 1147

Stephanie E. FORSBERG, individually and on behalf of all similarly situated persons, Plaintiff, v. PACIFIC NORTHWEST BELL TELEPHONE CO., a Washington corporation, Defendant.

Civ. No. 84-1401-FR.

United States District Court, D. Oregon.

July 12, 1985.

Dan O'Leary, Robert K. Udziela, Pozzi, Wilson, Atchison, O'Leary & Conboy, Henry Kantor, Delo, Kantor & Stamm, Portland, Or., for plaintiff.

Lester V. Smith, Jr., Kenneth E. Jernstedt, David H. Wilson, Jr., Corbett Gordon, Bullard, Korshoj, Smith & Jernstedt, P.C., Portland, Or., for defendant.

ORDER

FRYE, Judge:

In the matter before the court, plaintiff Stephanie E. Forsberg moves the court to reconsider its ruling of March 29, 1985, 623 F.Supp. 117, joining the Communications Workers of America and several CWA Locals (the Union) as parties defendants pursuant to Fed.R.Civ.P. 19(a). In the alternative, plaintiff moves the court for an order realigning the Union as a plaintiff.

Plaintiff asks this court to reconsider its decision to join the Union as defendant because the joinder creates a conflict of interest for plaintiff's counsel in that the Union has agreed to cover certain costs of plaintiff's case and has retained plaintiff's counsel. Plaintiff contends that joining the Union is a substantial and unnecessary hardship to plaintiff and not in the interest of justice because no liability can be assessed against the Union. In addition, plaintiff asserts that jurisdiction cannot be properly maintained against the Union because it is not named in the EEOC complaint.

Defendant opposes reconsideration of the merits of joining the Union as defendant. Defendant asserts that it is proper for the Union to be a defendant in this action to accord complete relief and to avoid its being faced with potentially inconsistent obligations, one to the plaintiff and one to the Union. In addition, defendant argues that the Union would be able to avoid its Title VII responsibilities by "planting" a friendly plaintiff, providing her with funds and attorneys, and conspiring to eliminate the claims against the Union if joinder is not proper.

APPLICABLE LEGAL STANDARD

Fed.R.Civ.P. 19(a) grants the court the discretion to join parties found to be essential for a just adjudication of the impending controversy. The inquiry focuses upon the practical effects of joinder and non-joinder, and the determination is heavily influenced by the facts and circumstances of each case. Eldredge v. Carpenters 46, etc., 662 F.2d 534 (9th Cir.1981).

Rule 19 requires two separate inquiries articulated in Bakia v. County of Los Angeles, 687 F.2d 299 (9th Cir.1982):

... The first step is to consider whether non-joinder would prevent the award of complete relief, or the absentee's interests would otherwise be prejudiced or the persons already parties would be subject to a substantial risk of double or inconsistent obligations.

There is no precise formula for determining whether a particular nonparty should be joined under Rule 19(a). Underlying policies include plaintiff's right to decide whom he shall sue, avoiding multiple litigation, providing the parties with complete and effective relief in a single action, protecting the absentee, and fairness to the other party....

The second step is to decide under Rule 19(b) whether "in equity and good conscience" a court should proceed without the absent party. Provident Bank v. Patterson, 390 U.S. 102, 109 88 S.Ct. 733, 737, 19 L.Ed.2d 936 ... Rule 19(b) lists four factors to be considered in making that determination. They include an analysis of (1) the extent to which a judgment rendered without the absentee would prejudice him or existing parties; (2) the extent to which prejudice could be lessened or avoided by other measures; (3) the adequacy of a judgment rendered without the absentee; and (4) the adequacy of plaintiff's remedies if an action is dismissed for non-joinder. In this case, litigation strategy and the effect of delay in the state courts appear to be major concerns of the parties....

Id. at 301.

ANALYSIS

In Northwest Airlines, Inc. v. Transport Workers Union of America, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981), the Supreme Court held that an employer found liable to its employees for a violation of Title VII and the Equal Pay Act cannot force a union to share the liability in an independent action for contribution. The Court held that there was no statutory or common law right upon which the employer was entitled to recover from the union. Relying upon that decision, other courts have dismissed the claims of employers seeking to force a union to share in the employer's potential Title VII liability. See, e.g., Am. Fed. of St., Cty. & Mun. v. City of New York, 599 F.Supp. 916 (S.D. N.Y.1984) (employer's counterclaims for contribution and indemnity against plaintiff/union in a Title VII action dismissed) and Anderson v. Loc. U. No. 3, Intern. Broth. of Elec., 582 F.Supp. 627 (S.D. N.Y.1984) aff'd. 751 F.2d 546 (1984), (no claim for contribution can be asserted against a union where the union and the employer...