Gibson v. Local 40, Supercargoes and Checkers of Intern. Longshoremen's and Warehousemen's Union

• Citation: 543 F.2d 1259
• Decision Date: 29 September 1976
• Docket Number: Nos. 73-3358 and 74-1923,s. 73-3358 and 74-1923
• Parties: 13 Fair Empl.Prac.Cas. 997, 37 A.L.R.Fed. 1, 12 Empl. Prac. Dec. P 11,215 Booker GIBSON et al., Plaintiffs-Appellants, v. LOCAL 40, SUPERCARGOES AND CHECKERS OF the INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1259

543 F.2d 1259

13 Fair Empl.Prac.Cas. 997, 37 A.L.R.Fed. 1,

12 Empl. Prac. Dec. P 11,215

Booker GIBSON et al., Plaintiffs-Appellants, v. LOCAL 40, SUPERCARGOES AND CHECKERS OF the INTERNATIONAL

LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, et al.,

Defendants-Appellees.

Nos. 73-3358 and 74-1923.

United States Court of Appeals, Ninth Circuit.

Sept. 29, 1976.

Don Marmaduke (argued), Tonkon, Torp & Galen, Portland, Or., for plaintiffs-appellants.

Raymond J. Conboy and Marshall C. Cheney, Jr. (argued), Portland, Or., for defendants-appellees.

Before BROWNING and TRASK, Circuit Judges, and WILLIAMS, ^* District Judge.

BROWNING, Circuit Judge:

Appellants brought this class action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., against Supercargoes and Checkers Local 40; its parent, International Longshoremen's and Warehousemen's Union (ILWU); and Pacific Maritime Association (PMA), an association of shipping, terminal, and stevedoring companies. Appellants charge that appellees discriminate against appellants and other black persons in the employment of "checkers" or clerks. The district court found for appellees. We reverse.

Clerks are employed to perform clerical functions related to receiving, delivering, checking, tallying and spotting cargo during the loading and unloading of ships. The basic work skills required are an ability to read, to write, to do simple mathematics, and to measure cargo with a tape measure.

ILWU and PMA negotiate coastwide rules governing the rights and responsibilities of clerks. Local 40 and PMA jointly support, operate, and control a Joint Port Labor Relations Committee which maintains registration lists and operates a dispatch hall for clerks in the Portland maritime area.

Clerks are classified class A, class B, and casual clerks. Membership in Local 40 is restricted to class A clerks. Class A clerks are given first priority for available work. Class B clerks are given second priority.

Occasionally, industry needs cannot be filled by class A or class B clerks alone. Until February 1971 the deficiency was met by dispatching casual clerks. Thereafter, class A (and perhaps class B) longshoremen from Local 8 of ILWU were dispatched before casual clerks.

One of the four appellants, Booker Gibson, had applied for employment as a casual clerk in October 1967. Learning that white applicants had been dispatched for employment as casual clerks even though they had filed applications later than he, appellant Gibson filed a charge with EEOC alleging racial discrimination. ¹ The day after Local 40 received the charge, appellant Gibson was dispatched for employment as a casual clerk. After February 20, 1968, however, appellant Gibson was no longer dispatched for employment.

Meanwhile, EEOC completed its investigation of appellant Gibson's complaint, and on June 11, 1968, issued a decision that reasonable cause existed to believe that appellees had violated Title VII. Conciliation efforts failed. On September 30, 1968, appellant Gibson was notified of his right to sue. This action was filed October 30, 1968. The district court dismissed the action on November 13, 1970, for failure to exhaust state remedies. We reversed and remanded for trial. Gibson v. Local 40, 465 F.2d 108 (9th Cir. 1972). After trial the district court entered judgment for appellees, holding that the suit was not an appropriate class action and that the evidence failed to disclose discrimination. This appeal followed.

I

The trial court stated that appellants "failed to show compliance with Rule 23(b)." The court offered no explanation for this conclusion. ² Appellees argue that the ruling was correct because appellant failed to prove discrimination against either a class or any of the individual appellants. We conclude that appellants proved both. In any event, failure of proof as to the named plaintiffs would not bar maintenance of the class action or entry of judgment awarding relief to the members of the class. ³

Since the trial has been completed and a full record is before us, it is appropriate that we determine whether the action is to be maintained as a class action. ⁴ We conclude that appellants have met the requirements of Federal Rule of Civil Procedure 23(a) and established a class action under Federal Rule of Civil Procedure 23(b)(2), but for a class narrower than claimed.

The class claimed is all black persons subjected by appellees to racial discrimination who are employed or may be employed, who may have attempted or may hereafter attempt to obtain employment, as clerks in the Portland maritime area, or who may now or hereafter seek membership in Local 40. We conclude that the class should be narrowed to those black persons who are or may be employed, or who may have attempted or may attempt to obtain employment, as casual clerks in the Portland maritime area.

Appellees do not contest the fact that the suggested class is so numerous that joinder is impossible. Fed.R.Civ.P. 23(a)(1). Appellees do not deny the existence of questions of law and fact common to the class. Fed.R.Civ.P. 23(a) (2). Appellees do not argue that appellants will not fairly and adequately protect the interests of the proposed class. Fed.R.Civ.P. 23(a)(4). The record reflects the competency of counsel and we are unable to conceive of any respect in which appellants' interests might conflict with those of any other members of the class limited as we propose. ⁵

Appellees do dispute, however, that appellants' claims or defenses are typical of those of a class. Fed.R.Civ.P. 23(a)(3). Appellees also deny they have acted or refused to act on grounds generally applicable to the proposed class. Fed.R.Civ.P. 23(b)(2). Both of these contentions rest upon appellees' assertion that each appellant was removed from the group referred for employment as casual clerks for independent reasons that had nothing to do with race.

Appellants' suit is based upon their common claim that appellees subjected appellants and other members of their class to employment practices that were racially discriminatory. Appellees' contention that each appellant was treated as he was for reasons peculiar to him and unrelated to race was only a defense to appellants' common claim, and, in our view, an unsuccessful one. A class action may be maintained under Federal Rule of Civil Procedure 23(b)(2), alleging a general course of racial discrimination by an employer or union, though the discrimination may have been manifested in a variety of practices affecting different members of the class in different ways and at different times. ⁶

Nonetheless, we conclude that persons who are, would have been, or may attempt to be, class A and class B clerks should be excluded from the class on the record in this case. The record discloses differences between class A and class B clerks and casual clerks that affect the nature of an effective presentation of their claims with respect to both liability and relief.

Class A and class B clerks constitute the permanent work force. They are not permitted to hold other regular employment. Class A clerks are guaranteed a 36-hour weekly wage and class B clerks are guaranteed an 18-hour weekly wage. To accommodate these guarantees, class A clerks are limited to about 75 percent of anticipated work force requirements, and class B clerks to about 25 percent. Class B clerks serve as apprentices, and are promoted to class A status as vacancies occur. Casuals, on the other hand, are not part of the permanent work force. They may hold other regular employment. They have no guaranteed wage. There is no apprenticeship relationship between casuals and class A and class B clerks.

All of the appellants were casuals. All held other employment. None of them sought employment as class A or class B clerks or indicated any interest in doing so. The pretrial and trial record concentrated upon the referral and employment of casuals. It is noticeably less complete with respect to the referral and employment of class A and class B clerks. ⁷ If included in the class, class A and class B clerks might be barred by res judicata from obtaining relief to which they could be entitled on a fully developed record. ⁸

We turn to the merits.

II

The district court concluded "there was certainly no invidious plan or understanding among the several defendants to discriminate against the plaintiffs or their colleagues because of their race." This finding may not be clearly erroneous, but neither does it justify a judgment for appellees.

Appellants were not required to prove that appellees intentionally discriminated against appellants and their class. "The objective . . . of Title VII is . . . to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices." Griggs v. Duke Power Co.,401 U.S. 424, 429-30, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). "Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation." Id. at 432, 91 S.Ct. at 854, (emphasis in original). Accordingly, "(l)ack of discriminatory intent is not a defense" to a charge of violating Title VII. Gates v. Georgia-Pacific Corp., 492 F.2d 292, 295 (9th Cir. 1974). ⁹

The evidence established a prima facie case of discrimination by appellees against blacks in the referral and employment of casual clerks in the Portland maritime area in violation of Title VII. Appellees failed to rebut this prima facie case.

It is undisputed that no blacks were employed as casual clerks in the Portland maritime area prior to October 1967. It is also undisputed that blacks constituted 2 percent of the population in the...