Freeman v. Motor Convoy, Inc.

• Decision Date: 10 February 1976
• Docket Number: Civ. A. No. 16185.
• Citation: 409 F. Supp. 1100
• Parties: Melvin FREEMAN, for himself, and for all others similarly situated v. MOTOR CONVOY, INC., et al. Douglas Spencer (Intervenor).
• Court: U.S. District Court — Northern District of Georgia

409 F. Supp. 1100

Melvin FREEMAN, for himself, and for all others similarly situated

v.

MOTOR CONVOY, INC., et al. Douglas Spencer (Intervenor).

Civ. A. No. 16185.

United States District Court, N. D. Georgia, Atlanta Division.

December 10, 1975.

As Amended February 10, 1976.

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John R. Myer, Howard Moore, Jr., Elizabeth R. Rindskopf, George L. Howell, Joseph Ray Terry, Jr., Atlanta, Ga., Jack Greenberg, William L. Robinson, Morris J. Baller, New York City, Roger L. Goldman, St. Louis, Mo., for plaintiff.

Robert L. Mitchell, Wilson, Wilcox & Wilson, Atlanta, Ga., Roland P. Wilder, Jr., Washington, D. C., for defendants.

RICHARD C. FREEMAN, District Judge.

ORDER

This is a class action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (hereinafter Title VII) and the Civil Rights Act of 1866, 42 U.S.C. § 1981, to recover for racial discrimination in employment. Defendant Motor Convoy, Inc. (hereinafter the Company) is an interstate motor carrier of motor vehicles with its main office in Atlanta, Georgia. Defendant Company is a party to the "National Master Automobile Transporters Agreement" and the "Central and Southern Areas Supplemental Agreements" with defendant Teamsters Local Union No. 528 (hereinafter the Local), which is affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter the International). Plaintiff Freeman is an employee of the defendant Company presently employed in the shop of defendant's Atlanta facility. Intervenor Spencer is employed as an "over-the-road" driver; however, he is presently in layoff status. A class has been certified in this action, consisting of "all black employees of Motor Convoy, Inc., excluding office and supervisory personnel, who are employed, or who were employed and have been discharged or laid off since July 2, 1965, within the Southern Conference of Teamsters." See Freeman v. Motor Convoy, Inc. (N.D.Ga. 1974), 68 F.R.D. 196, 19 F.R.Serv.2d 650, reconsideration denied, 68 F.R.D. 204 (Jan. 9, 1975).

This action was tried before the court on March 11-13, 1975, at which time the parties introduced testimonial and documentary evidence, as well as stipulations, concerning the merits of this case. In fact, it is clear, based on the stipulation of the parties submitted on commencement of the trial, that plaintiffs have established a prima facie case of discrimination in employment. See, e. g., United States v. T.I.M.E.-D.C., Inc., 517 F.2d 299 (5th Cir. 1975); Sabala v. Western Gillette, Inc., 516 F.2d 1251 (5th Cir. 1975); Rodriguez v. East Texas Motor Freight, 505 F.2d 40 (5th Cir. 1974).

THE PRIMA FACIE CASE

The stipulation of the parties and the other evidence before the court shows that from 1965 through 1974 the defendant company hired some 142 persons of the white race as over-the-road drivers in the Atlanta facility and only 5 blacks. Moreover, all of the blacks hired as over-the-road drivers were hired since 1971 and two of these black drivers hired were laid off within one month of their hiring date. During this period, the total number of persons employed as drivers at the Atlanta terminal ranged from 214 to 140, whereas the company employed no more than 1 to 3 black drivers during this same period. Thus Blacks, historically, and at present, constitute a very small portion of the driver work force at the Atlanta terminal. Statistics for the other terminals in the Southern Conference area are similar.

The instant proceeding does not solely relate to road driving jobs, however, and the parties have also introduced statistical evidence regarding the racial composition of the defendant Company's shop and yard divisions.¹ Employees in these divisions did not become members of the defendant Local until 1969. The yard employees were formally organized after the shop employees, but, the formal unionization date was set as October 13, 1969 for both groups. Before this date, the defendant Company did not maintain a seniority system for yard and shop employees, nor did the Company maintain formal job classifications for these employees. Prior to unionization, the yard and shop employees were informally characterized as mechanics, helpers, tire men, greasers, gasers, and porters. Persons informally classified as mechanics received the highest rate of pay among the yard and shop employees. Following unionization, the shop employees were divided into the following classifications: welder-mechanic; mechanic; advanced apprentice mechanic; helper, greaser, and tireman; janitor, porter, and washer. The "helper, grease, and tireman" classification has now been changed to an "apprentice mechanic" classification. The stipulation of the parties shows that following unionization, ten black shop employees were classified as either helpers or porters whereas only two white employees were in this classification. On the other hand, only one black employee, plaintiff Freeman, was classified as a mechanic, whereas 19 white employees were either welder-mechanics or mechanics. As of the time of trial, these statistics had not changed significantly.

In sum, as of the time of trial, the defendant Company maintained job classifications relevant to this action consisting of over-the-road drivers; welder-mechanics; mechanics; advanced apprentice mechanics; apprentice mechanics; and porters. Persons employed as over-the-road drivers, welder-mechanics and mechanics received the highest rates of pay. The relevant statistics show that at all times pertinent to this action, these higher paying, more desirable jobs, were virtually all-white jobs. These statistics establish a prima facie case of past discrimination in hiring and job assignment. See Rodriguez v. East Texas Motor Freight, supra, at 53-55. Moreover, this statistical evidence of discrimination is corroborated by the testimony of plaintiff's witnesses. This testimony related to several incidents of purported discriminatory hiring, training, and general treatment by Company officials and employees. Although the Company denies any discriminatory motive and introduced conflicting testimony regarding the purportedly discriminatory incidents, problems of conflicting testimony do not constitute a critical factor in this case. In class action employment discrimination cases, it is well settled that each member of a class need not show individualized discrimination where overwhelming statistical evidence shows a continuing pattern or practice of discrimination with respect to the class as a whole. The question in such cases is not whether plaintiffs have shown specific acts of overt or covert discrimination, but whether the defendants have adduced sufficient contrary evidence to rebut plaintiffs' prima facie case. E. g., id. Furthermore, where statistical evidence shows a long standing practice of relegating blacks to lower paying, less desirable jobs, and excluding blacks from certain job classifications, the fact that past discriminatory policies may have been eliminated does not constitute a viable defense:

Recent minority hiring progress stands as a laudable good faith effort to eradicate the effects of past discrimination in the area of hiring and initial assignment. But it is not enough to eradicate the effects of the past discrimination against incumbent minority group members who are presently locked into the position to which they were initially and discriminatorily assigned.

United States v. T.I.M.E.-D.C., Inc., supra at 316. The "lock-in" effect results from no transfer rules and seniority rules incorporated in collective bargaining agreements commonly utilized in the trucking industry. The courts have uniformly ruled that when these seniority provisions effectively discourage or preclude transfer from the less desirable, lower paying job, into the more desirable, higher paying jobs, they perpetuate past discrimination and must be modified by affirmative judicial action. In such cases, both the employer and the union are jointly liable for the discriminatory effects of past as well as present employment practices, unless the defendants can show that the present seniority policy is justified by a "business necessity." E. g., Rodriguez v. East Texas Motor Freight, supra; Bing v. Roadway Express, Inc., 444 F.2d 687 (5th Cir. 1971). See also, Sagers v. Yellow Freight System, Inc., 58 F.R.D. 54, 6 E.P.D. ¶ 8885 (N.D.Ga.1973). Before turning to the question of whether or not defendants have shown an adequate business necessity for continuing their seniority policy, this court must resolve certain critical issues relating to the liability of the defendant International and the proper parameters of the class in this action.

LIABILITY OF THE INTERNATIONAL

A. Jurisdiction

In its post trial brief, the defendant International contends that plaintiffs have not carried their burden of proof with respect to questions of in personam jurisdiction. Defendant International contends that service was insufficient and also that jurisdiction is improper under constitutional concepts. In a prior order this court concluded that there was a sufficient showing of "threshold" jurisdiction under the Georgia Long Arm Statute, Ga.Code Ann. 24-113.1, to withstand a motion to dismiss. Freedom v. Motor Convoy, Inc., 9 F.E.P. 85 (N.D.Ga. 1972). More recently, however, in an order entered on June 30, 1975, this court noted that it had entered a ruling in a similar case which had the effect of overruling in part a portion of the 1972 order entered in the instant proceeding. See Sinyard v. Foote & Davies, 9 E.P.D. ¶ 10,160 at 7714-15 (N.D.Ga.1975). In Sinyard this court held that service of an International union effected by serving an agent or official of one of its locals, was permissible under Ga.Code Ann. § 3-119 and was sufficient to perfect service pursuant to Rule 4,...