Lewis v. Tobacco Workers' Intern. Union
| Decision Date | 10 May 1978 |
| Docket Number | Nos. 76-1998,76-1999 and 76-2199,s. 76-1998 |
| Citation | 577 F.2d 1135 |
| Parties | 17 Fair Empl.Prac.Cas. 622, 16 Empl. Prac. Dec. P 8310 Nora LEWIS, Elizabeth Bullock, Mary Carter, Betty Johnson, and Gertrude Moody, each Individually and on behalf of all other persons similarly situated, Appellees, v. TOBACCO WORKERS' INTERNATIONAL UNION, an unincorporated association, Appellant, Philip Morris, Incorporated, a corporation, and Local 203, Tobacco Workers' International Union, an unincorporated association, Defendants. Nora LEWIS, Elizabeth Bullock, Mary Carter, Betty Johnson, and Gertrude Moody, each Individually and on behalf of all other persons similarly situated, Appellees, v. LOCAL 203, TOBACCO WORKERS' INTERNATIONAL UNION, an unincorporated association, Appellant, and Philip Morris, Incorporated, a corporation, Tobacco Workers' International Union, an unincorporated association, Defendants. Nora LEWIS, Elizabeth Bullock, Mary Carter, Betty Johnson, and Gertrude Moody, each Individually and on behalf of all other persons similarly situated, Appellees, v. PHILIP MORRIS, INCORPORATED, a corporation, Appellant, Tobacco Workers' International Union, an unincorporated association, and Local 203, Tobacco Workers' International Union, an unincorporated association, Defendants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Myron D. Cohen, New York City (Edward F. Butler, Conboy, Hewitt, O'Brien & Boardman, New York City, Lewis T. Booker, Virginia W. Powell, Richmond, Va., Hunton & Williams, Richmond, Va., on brief), and Jay J. Levit, Richmond, Va. (Stallard & Levit, Richmond, Va., James F. Carroll, New York City, on brief), for appellants.
Jack Greenberg, New York City (Barry L. Goldstein, Washington, D. C., Henry L. Marsh, III, William H. Bass, III, Richmond, Va., John W. Scott, Jr., Fredericksburg, Va., Randall G. Johnson, Hill, Tucker & Marsh, Richmond, Va., on brief), for appellees.
Before RUSSELL, WIDENER, and HALL, Circuit Judges.
Philip Morris, Inc., the Tobacco Workers International Union, and Local No. 25 of the Tobacco Workers International Union appeal from a judgment finding them liable for a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
This suit is a class action 1 brought by five black employees of Philip Morris. It is the second such suit in recent years, repeating many of the assertions made in Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (E.D.Va.1968). The plaintiffs' claim involves the allegation that the company, through discriminatory initial job assignment policies, segregates workers into black and white departments.
There are four departments 2 at the Philip Morris plant in Richmond, Virginia, three of which have permanent jobs, while at the remaining department the work is seasonal. The most attractive and skilled jobs, providing the best pay and the brightest opportunities for advancement, are in the fabrication department, where cigarettes are actually manufactured. Employees in fabrication are 41.1% black. The pre-fabrication department, second ranked in pay and desirability and which involves largely unskilled and considerable heavy labor, is where the bulk tobacco is processed into cut filler for use in the manufacturing of cigarettes. Its employees are 85.2% black. WSR, the warehouse department, third ranked in pay and which also involves heavy labor, largely unskilled, has 27.8% black employees. All of these three departments have permanent, as opposed to seasonal, jobs. The fourth department is the stemmery. It is the lowest paying department, almost wholly unskilled, and employment is seasonal rather than permanent, and it has 95.4% black employees.
The seasonal work is in the stemmery, where the current crop of tobacco is processed for aging and storage. Historically, the stemmery has been predominantly black, and it remains so. The gravamen of the plaintiffs' complaint is that the company and the unions purposely assigned black employees to the stemmery, which was the most unfavorable department in the company's operation. 3
The court, although finding a violation of Title VII for another reason, was unable to find that "the excessive assignment of blacks to the stemmery was purposefully undertaken by the company to covertly continue its historical system of segregated departments." Additionally, the court absolved the unions of any charges that they violated their duty of fair representation.
However, in spite of the absence of purposeful discrimination by the company or the lack of fair representation by the unions, the district court found the black employees believed that the company discriminated against members of their race in the assignment of jobs. Therefore, it held that the company was liable because it did not inform "all applicants for hourly positions at the beginning of any interview (1) of the positions currently available in each of the four departments with an appropriate job description, and (2) that it assigns and hires new workers without reference to race." 4 Accordingly, it ordered recovery of damages to class members who were not so advised and "believed that their race substantially limited their initial employment."
We are of opinion that the district court erred in giving relief to certain members of the plaintiff class through the formulation of a duty which Title VII does not require.
Initially, we dispose of a procedural point raised by the appellees, who have moved for dismissal of this appeal on the ground that the order appealed from is not a final order granting relief, citing Liberty Mutual v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976). That order, entered on September 2, 1976, 5 adopted to the letter the plaintiffs' proposed guidelines for relief. While the guidelines consist in part of additional findings of fact and conclusions of law, they require the defendants, among other things, to supply a list of all members of the class eligible for back pay, to pay interim attorneys' fees, to develop job descriptions, not to limit transfer of employees from the stemmery at season's end, to hire both permanent and seasonal employees at each employment office, to advise all employees of all vacancies, and to keep applications active and on file for a period of no less than one year.
In determining whether an order is or is not an injunction, we look to the substance, rather than the form, of an order. Ettelson v. Metropolitan Life Insurance Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942). We believe the guidelines, requiring the defendants to act in some instances and forbidding them to act in others, to be an injunction. 6 We do not agree with the plaintiffs' position that the guidelines, although requiring present affirmative action or restraint, are yet unappealable. Nor does it gain support from Liberty Mutual, supra, for there the court merely had found a violation of the act and had not ordered the defendants to take, or refrain from, any action or to pay attorneys' fees. See 424 U.S. at 742, 96 S.Ct. 1202.
As noted above, this case is an extension of, or the same, controversy decided ten years ago in the district court. In that case, Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (E.D.Va.1968), two black employees brought a suit on behalf of all black employees of Philip Morris, alleging "that the defendants by their employment practices and collective bargaining agreement refused to hire, promote to supervisory positions, pay, advance and transfer Negro employees on the same basis as white employees." 279 F.Supp. at 507.
While finding that the company had discriminated against two Negroes with respect to pay and against the named plaintiff Quarles and the Negroes hired in the prefabrication department before January 1, 1966 with respect to advancement, transfer, and seniority, the Quarles court expressly found that Philip Morris had not engaged in discriminatory hiring practices since January 1, 1966 and that the company's policy for assignment of workers to the stemmery did not violate Title VII. 7 Because of the similarity of the contentions presented in Quarles with those made in the present case, the inclusion of the present seasonal class members (black stemmery employees) in the Quarles class (all black employees), and the actual membership in the Quarles class by two of this suit's named plaintiffs who were employed by Philip Morris at the time of the Quarles judgment, the defendants have contended at all stages of this litigation that the doctrines of res judicata and stare decisis should apply to the present controversy.
The court below recognized that the application of res judicata, or even stare decisis, would be highly damaged to the plaintiffs' case; the vindication, in 1968, of the company's hiring practices and stemmery assignment practices would bind, insofar as the court found that, up to the time of the 1968 judgment, the hiring practices were not racially motivated, the black female plaintiffs and the black male plaintiffs on the question of racial discrimination. The district court refused to implement res judicata on the ground that the members of the Quarles class could not be constitutionally bound by that decision because the class members had not been notified of the pendency of the suit. 8
Thus, a decision as to the applicability of the rule of res judicata would necessarily require a determination of the constitutionality, facially or as applied, of the provision in FRCP 23 making a judgment binding on a member of a FRCP 23(b)(2) class regardless of whether the individual was notified of the suit. Because we are of opinion the district court's judgment should be reversed on grounds independent of the binding effect of the Quarles judgment, we decline to consider that issue. Ashwander v. TVA, 297 U.S. 288, 341, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).
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